Amendment 85A

Trade Bill - Committee (6th Day) – in the House of Lords at 3:45 pm on 15th October 2020.

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Baroness McIntosh of Pickering:

Moved by Baroness McIntosh of Pickering

85A: Clause 7, page 5, line 17, at end insert—“(7) Nothing in regulations made under subsection (3) may require the disclosure of information or the production of documents which are subject to legal professional privilege.”

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, it makes sense to take Amendments 85A and 89A together and I am grateful for the opportunity to do so. It is generally believed in legal circles that Clause 7(1) and the whole of Clause 8 as currently drafted are extremely wide and give great discretion to HMRC to require information. A similar amendment was moved in the other place that these provisions should be much more clearly defined to give greater certainty about the extent of the information and the anticipated frequency of this method of data collection. As my noble friend Lady Neville-Rolfe described so clearly, while in normal circumstances it could be quite amusing, a breach of confidentiality or legal privilege is no laughing matter—and accidents and mistakes do happen. It is for that reason that Amendment 85A seeks to add at the end:

“Nothing in regulations made under subsection (3) may require the disclosure of information or the production of documents which are subject to legal professional privilege.”

Similar wording would be added to the relevant provisions of Clause 8.

I know that my noble friend Lord Younger went to some pains in summing up the previous debate to make it clear that the information would be provided on a voluntary basis—his defence was that there should be no compulsion. That indeed was the summing-up of my right honourable friend the Minister, Greg Hands, in the other place: that legal professional privilege was, in his words,

“a long-standing principle that protects the confidentiality of communications between lawyers and their lay clients and vice versa.—[Official Report, Commons Public Bill Committee, 25/6/20; col. 299.]

He went on to expand on why the principle is so important.

In thanking the Committee for the opportunity to speak to these amendments, I will say that it is felt that there are grounds to have these two amendments written into the Bill. Perhaps the Minister could meet me half way to make sure, by putting these phrases into the Bill, that there is absolutely no scope for anything to be done involuntarily or accidentally. With those few remarks, I beg to move.

Photo of Baroness Bowles of Berkhamsted Baroness Bowles of Berkhamsted Liberal Democrat

My Lords, we support these amendments and, broadly speaking, I could just repeat my comments on the previous group. So, if your Lordships could take them as read, I will not repeat them.

The powers of HMRC cannot ride roughshod over matters that are protected, in this instance by legal privilege. It seems to me that HMRC cannot be put above the law as a matter of principle. I will repeat that there are concerns because of the current provision in the Finance Bill seeking to obtain access to bank accounts that would normally have required a court’s approval. There is also doubt as to whether, within HMRC, there are the appropriate procedures for the proper handling of some of the information that it may demand. The issue is around the training and abilities of the people who may access or disclose things who, if previous form is to be followed, can be in relatively junior positions. I think that these are matters that HMRC is trying to address but, despite that, it seems improper to demand to acquire powers before any safeguards are in place. Also, legal privilege would appear to me to need special protection, and therefore provisions to achieve the aims of these amendments would be useful in the Bill.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Shadow Spokesperson (Further & Higher Education), Shadow Spokesperson (Digital, Culture, Media and Sport) (Sport), Shadow Spokesperson (Business, Energy and Industrial Strategy and International Trade)

My Lords, I thank the noble Baroness, Lady McIntosh, for her speech and amendments. As she says, the provisions in the Bill are quite widely drawn, and the amendments stop information on documents relating to legal professional privilege being disclosed. I well understand the sensitivity of legal professional privilege. All information between a lawyer and their client must be handled with care and confidentiality, so we will be listening carefully to whether the Minister’s response alleviates the concerns of the noble Baroness, Lady McIntosh. I suspect that her amendments are probing but, as the noble Baroness, Lady Bowles, said, they touch on sensitive issues.

I will take this opportunity to ask the Minister a question on Clause 7. The Government have suggested that export information could be used for trade promotion. That does not seem unreasonable, on the face of it, but we need to understand it better. I hope that the Minister can go into more detail about the type of promotion that this can be used for, because I can see that there might be privileged sensitivities. Who will the information target? Will individuals be notified if their information is being used in this way? We need more reassurance on this to let through the Bill as it is currently drafted.

Photo of Viscount Younger of Leckie Viscount Younger of Leckie Lord in Waiting (HM Household) (Whip) 4:00 pm, 15th October 2020

My Lords, I will deal with Amendments 85A and 89A, in the name of my noble friend Lady McIntosh of Pickering, together, as they are closely related. My noble friend has written half my speech, because it echoes her remarks. Both amendments concern legal professional privilege, which, as noble Lords know, is a long-standing principle that protects the confidentiality of communications between lawyers and their lay clients, and vice versa. It enables lawyers to consult and advise their clients, without clients fearing that information will have to be disclosed later.

As a matter of general interest, any person who wishes to consult a lawyer must be free to do so under conditions which ensure uninhibited discussion. I do not believe it has been mentioned in this debate that this principle is recognised and protected under Article 8 of the European Convention on Human Rights. I can therefore provide an absolute assurance to the Committee that the Government have no intention, either now or in the future, of using these powers to seek or share information that is protected by legal professional privilege.

For Clause 7, the information being requested from exporters will be provided voluntarily. This has already been said by me and other noble Lords. That the information is being provided voluntarily is, perhaps, an indication of the Government’s position on minimising burdens and, therefore, not requiring privileged information to be disclosed.

As part of this short debate, it is crucial to make this point: Clause 8 allows for the sharing of data that is already held by HMRC for its administrative functions. Such information cannot, therefore, be subject to legal professional privilege, as it has already been provided to HMRC. However, I understand your Lordships’ concerns about data sharing, and I reassure the Committee about the safeguards we have put in place around the collection, handling and processing of information collected under this clause. In response to the winding-up speech of my noble friend Lady Noakes, who raised concerns despite my remarks, I take this opportunity to confirm that I will write to her and all noble Lords, and put a copy in the Library of both Houses, concerning those reassurances.

The data-sharing powers in this clause are permissive, so all instances of data sharing must be approved by HMRC. Criminal penalties for any unauthorised sharing of data will apply under the existing Commissioners for Revenue and Customs Act 2005. Nothing in the clause permits the disclosure of information that is not otherwise permitted in data protection law, including the Data Protection Act 2018 and the Investigatory Powers Act 2016. A lot of this was said in the remarks on the previous amendment. I hope that this provides the reassurance that my noble friend Lady McIntosh seeks on this point, and that she will withdraw her amendment.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, I am grateful to those who have contributed and for the support expressed by the noble Baroness, Lady Bowles, and the noble Lord, Lord Bassam. I am slightly concerned by the response of my noble friend Lord Younger. I understand that Conservatives support, and have enshrined in this and other legislation, the European Convention on Human Rights, but it begs the question of what would happen if a future Government were to resile, so they were no longer a signatory to it. This is not beyond the realms of possibility as we leave the European Union. I realise that the Council of Europe is a separate organisation, but it begs the question.

As my noble friend Lord Younger so clearly said in summing up, legal professional privilege exists so that information can be communicated between lawyer and client. I am sure he recognises that many UK statutes already give express protection of legal professional privilege and that it is protected vigorously by the courts. The noble Lord, Lord Bassam, was absolutely right that this is a probing amendment, but my concern is only that, if we do not insert something like this, my noble friend and the Government may face future court cases, in the event of a breach of legal professional privilege. Having expressed these concerns, I beg leave to withdraw the amendment at this stage.

Amendment 85A withdrawn.

Clause 7 agreed.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords)

We now come to the group beginning with Amendment 86. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or any other amendment in the group to a Division should make that clear in the debate.

Clause 8: Disclosure of information by HMRC