Amendment 86

Trade Bill - Committee (6th Day) – in the House of Lords at 4:00 pm on 15th October 2020.

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Lord Grimstone of Boscobel:

Moved by Lord Grimstone of Boscobel

86: Clause 8, page 5, line 22, after “trade,” insert—“(aa) facilitating the exercise by a devolved authority of the authority’s functions relating to trade,”Member’s explanatory statementThis amendment would ensure that HMRC is able to disclose information to a devolved authority.

Photo of Lord Grimstone of Boscobel Lord Grimstone of Boscobel The Minister of State, Department for International Trade, The Minister of State, Department for Business, Energy and Industrial Strategy

My Lords, this group consists of three government amendments, which are minor and technical in nature, together with an amendment in the name of the noble Lord, Lord Stevenson. I will present the government amendments, before responding to Amendment 89. The amendments all relate to the data disclosure provisions at Clauses 8 and 9.

On government Amendment 86, it has always been our intention that the devolved Administrations should be able to access HMRC information to facilitate the exercise of their trade functions through the powers in the Bill. However, in recent discussions, colleagues in the devolved Administrations asked for their ability to receive information to be made more explicit in the Bill. I am happy to offer this clarity. This amendment puts beyond any perception of doubt that the devolved Administrations can access HMRC information for their trade functions through the Bill.

The associated government Amendment 96 is simply a consequence of Amendment 86, and explains what is meant by “devolved authority” for the purposes of the Bill. We have worked closely with the devolved Administrations to ensure that the data-sharing gateways in the Bill also assist them with their devolved functions. In this spirit, I make two further commitments to the devolved Administrations on data-sharing in Clause 9.

First, the data shared under Clause 9 will be used by the border impact centre and the Cabinet Office to develop strategic insights. They are committed to sharing strategic analysis related to flow of trade, where it will support the more effective management of flow through the border. I understand that Cabinet Office officials have been working closely with counterparts in the devolved Administrations to ensure that relevant analysis and information relating to trade and management of the border can be shared to support devolved functions. Examples of the types of information that the border impact centre intends to share with relevant parties in the devolved nations are flow patterns through ports. The Cabinet Office will continue to work with the devolved Administrations to ensure that the border impact centre provides strategic benefit to management of flow through key ports.

Secondly, the UK Government commit to consulting the devolved Administrations before any devolved authorities are added to, or removed from, the list of specified authorities that can share data under Clause 9.

Amendment 90 corrects a drafting omission in Clause 10(4)(b)(i) in relation to the imprisonment term for a person guilty of an offence who is liable in England and Wales on summary conviction. Clause 10 as currently drafted provides that a person guilty of an offence under the clause is liable on summary conviction in England and Wales to imprisonment for a term not exceeding 12 months or to a fine, or to both. Until the relevant provisions of the current Sentencing Bill are enacted and commenced, however, magistrates can impose a sentence of only up to six months’ imprisonment for a single offence in England and Wales.

In other legislation that provides for a maximum penalty of 12 months’ imprisonment on summary conviction, a provision concerning magistrates’ current sentencing powers is included to provide that reference to “12 months” is to be read as reference to six months until the relevant provisions of what will be the Sentencing Act are commenced. The amendment adds a similar provision to the Trade Bill.

I hope noble Lords will support these minor and technical government amendments.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, I express my gratitude to my noble friend Lord Grimstone for making these amendments. This flags up a constant issue, whereby issues are raised late and at quite short notice by the devolved Administrations, but it also flags up a broader issue for another day as to where we are with the common frameworks.

I want to put one question to the Minister about the remarks that he has just made. He refers to the fact that the Cabinet Office will be responsible for disclosing this information and making it available to the devolved Administrations under Clause 9. He went on to say that in future they will now be consulted under Clause 9. I want to go one step further and ask him, in the usual way, that they are not just consulted but that the Government wait for them to give their consent to these changes, particularly if they might not just be technical but could be substantial. It is extremely important to keep the devolved Administrations on side, given that there will be elections at some point in the future where this could be used to the Government’s disadvantage. Could the Minister just confirm that they might await consent rather than just consultation?

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Conservative

My Lords, as I am very supportive of this Bill and of my noble friend Lord Grimstone, I put my name down to support the Government. However, having listened to earlier exchanges on both information and legal privilege, and having studied the wide power in Clause 8(1), I am a little uneasy that the data being collected can be passed on to devolved authorities in the way provided for in Amendment 86. The devolveds will obviously have very different objectives on international trade that are not always compatible with those of the Government, and they may take a different view on who in the public or private sector can safely be sent data that in some cases will be confidential and sensitive to a company’s competitive position. I assure noble Lords that other countries in the world would not be so keen to risk the interests of their businesses.

As the noble Lord, Lord Bassam, has said, we are not entirely clear who will be targeted. Will individuals be informed that their circumstances, if only reflected in a number, are the subject of trade policy discussions? I was thinking about scotch and the much smaller distilling interests in other parts of the UK. I am afraid I am also not entirely clear as to what borders my noble friend was talking about, although obviously I will look very carefully at his comments. As we are still in Committee, and therefore at the probing stage of some of these important amendments.

I am both curious about and a little uneasy with Amendment 89 from the noble Lord, Lord Stevenson, which I think forms part of this group. I was hoping to hear from him, particularly as I am not familiar with the customs legislation referred to. However, if I have understood it correctly, he seems to be adding very fierce penalties—imprisonment and/or a fine of up to 4% of a corporation’s annual turnover—for non-compliance. I have to say that I often agree with the noble Lord on business and enforcement issues, but these proposals could be disproportionate and damaging. They are penalties that stem in concept from EU law, notably competition law, and I have always had reservations about them. They seem likely to lead to companies hiring expensive lawyers and, more generally, to a loss of common sense and humility. I would also like to understand whether the financial penalties would apply to officials as well as to private operators. I suspect not, but the Minister may be able to clarify these matters.

To conclude, I urge my noble friend to be very careful in this area. The amendments are technical but it is very important that we get them right.

Photo of Lord Wigley Lord Wigley Plaid Cymru 4:15 pm, 15th October 2020

My Lords, I was about to enthuse about the Government going in the right direction, but the comments of the noble Baroness, Lady Neville-Rolfe, have made me hesitate a little and I will wait to hear the Minister’s response to her. I am glad of the opportunity to probe exactly what the Minister’s intention is in tabling this amendment. I welcome it as a step in the right direction but I want to press him for further clarification, perhaps going in the opposite direction from the noble Baroness who has just spoken.

The amendment allows HMRC to disclose information to devolved Governments. That is fine as far as it goes—it would be totally unacceptable if HMRC were barred by default from releasing relevant information in this way—but the amendment does not necessarily require HMRC to provide information requested by a devolved Government and needed to undertake their responsibilities. HMRC is therefore presumably allowed to refuse to provide the relevant information needed for trade purposes if it deems it fit. Am I right that that is the Government’s intention and the effect of this amendment? If so, how do the Government justify refusing to provide devolved Governments with the power that they may need to require relevant information to undertake their trade work responsibilities? If it is their intention to allow the devolved Governments to have the information that they need and for HMRC not to be able to refuse to give that information, would the Government therefore consider a further amendment later to require HMRC not unreasonably to withhold such information?

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade)

My Lords, at Questions today the Minister indicated that he was on a mission to educate me—I see the noble Baroness, Lady D’Souza in her place, and she was there—so I give the Minister an opportunity to educate me further with the questions that I have on this group. With regard to the previous question I asked, no doubt he will give me a full tutorial in response to the letter that I have written to him today in response to the very partial answer that he gave me at Questions.

I welcome the fact that good things happen, notwithstanding the concerns of the noble Baroness, Lady Neville-Rolfe, when devolved Administrations are consulted. Even in the middle of the Lords stages of a Bill, sensible things can come about, so I support the Minister’s amendments. Still, I have a couple of questions.

The first is not about what is in the amendment but about what he said in his introduction, which contained a little more clarity about the use of the information. Very soon we will be getting legislation not only on the frameworks, as the noble Baroness, Lady McIntosh of Pickering, mentioned, but on the thorny subject of the border operating model, including the legislation for the Kent access permit. I believe those regulations will include the power for our authorities to use automatic number plate recognition information, which enhances border port flows. I want to flag up to the Minister, although he may not wish to clarify this point today, that there will be concern if there is a lack of clarity about what information is fully anonymised, and will only ever be anonymised, and what information will be collected by the same authorities that will have access to, for example, automatic number plate recognition for those carrying out the businesses. We will have to be very clear, otherwise some of the concerns in the previous group and some of the concerns about disclosure will be heightened.

Clause 8(1) covers the power for HMRC to disclose information, but it also says, in brackets,

“or anyone acting on their behalf”.

It might be fully down to my ignorance but I am not entirely sure who that is likely to be and by what processes they are acting “on their behalf”. It has not been spelled out in the Explanatory Notes. Therefore, perhaps the Minister could clarify that because, as has been said, some of this information is sensitive, and not only to individual businesses. It is of strategic importance to the UK, and our competitors would probably quite like to have that knowledge too. If the Minister can explain who the “anyone acting on their behalf” might be, that would be useful.

While doing that, he might also be able to explain the Explanatory Notes. Paragraph 75 says:

“Clause 8(1) allows HMRC to share data with public or private bodies”.

Can he give examples of the kinds of private bodies that HMRC would share that data with? The clause expands the sharing of data quite considerably. Unlike the noble Baroness, Lady Neville-Rolfe, I have no problem with the devolved Administrations receiving this information under the terms of this legislation, but my antenna is directed to the words “or private bodies”.

Paragraph 75 of the Explanatory Notes goes on to expand the extent of data sharing. It says:

“This includes powers to share data, when needed, with international organisations that oversee the world trade system (for example the WTO)”.

That goes beyond what the Minister said, which concerned the purpose of this measure regarding strategic border flow information. If data is collected to help the WTO oversee the world trade system, there might have to be some parameters for that. I am not saying that I would be opposed to it, but at the moment I think that it would be useful to have more information, if possible.

Clause 9 concerns the disclosure of information by bodies other than HMRC. Subsection (3) lists those bodies as the Secretary of State, the Cabinet Office Minister—we know that the Cabinet Office Minister is responsible for the border operating model and preparations for the new border processes after January—a strategic highways company appointed under the Infrastructure Act and a port health authority. Therefore, we might have a slightly odd situation when it comes to the management of our ports in Scotland and Wales, in that the authorities responsible for those ports will have the power under this legislation to receive the information but they will not have the power to do anything about it for their own ports. Would it not make some sense if that were tidied up to ensure that the devolved authorities were able to use that data under the strictures of this legislation for the ports within those home nations? I say that because Clause 9(3)(c) refers to a strategic highways company appointed under the Infrastructure Act, but that Act extends to England and Wales only. Why does it not cover Scottish and Northern Irish export routes? In addition, Clause 9(3) lists, at paragraph (d),

“a port health authority constituted under section 2 of the Public Health (Control of Disease) Act 1984.”

However, that Act does not extend to Scotland or Northern Ireland, so, as I said, we might have a really odd situation here. Perhaps the Minister can clarify that point and see whether it can be tidied up.

Finally, a similar point arises in relation to Amendment 89. I can understand the case that is being made for higher penalties, but, unfortunately, something similar happens with regard to the offences—under Section 19(7) of the 2005 Act—referred to in the amendment of the noble Lord, Lord Stevenson. The amendment would not apply to Scotland or Northern Ireland, because the sentence for the offence of wrongful disclosure in Scotland is six months. Even the Government’s amendment would not apply to Scotland, and there is a separate offence within Scotland under that legislation. Assuming that the noble Lord, Lord Bassam, can clarify that point or indicate that he does not seek to extend an offence by eight times, I think that I would be satisfied.

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 am always mindful of and sympathetic to a Minister who starts out with a speech by saying that the amendments he is moving are minor and technical. That is a wonderful disguise for all manner of things, and sometimes things can unravel when you say that.

That said, in general terms we do not have any issue with the intention behind the government amendments. They seem perfectly acceptable, as other noble Lords have said. However, we feel that the Government might have been better advised to offer these amendments in the negative, as we and many other noble Lords have not generally had the option of voting in Committee. It would probably have been more appropriate to move the amendments on Report, and I hope that the Minister will take note of that point.

Colleagues in this Committee have asked a series of quite important questions this afternoon, not least about how these things will work for the devolved Administrations and how they might apply. The question from the noble Baroness, Lady Neville-Rolfe, about which borders were involved was particularly appropriate, given some of the chaos that might well ensue if we do not get a proper deal in the current discussions.

I myself have a question for the Minister. How will the border impact centre report its information to us as parliamentarians? Will there be regular reports? Clearly, we do not want individual data but it seems to me that that will be very important in order to understand better the flows at borders. It would be useful to us if we could understand how that information and data will be reported back.

Noble Lords made reference to the amendment in the name of my noble friend Lord Stevenson, and I will speak to that now. In the Bill as currently drafted, if information were passed on without authorisation in such a way that it allowed an individual to be identified, Section 19 of the Commissioners for Revenue and Customs Act 2005, which deals with the offence of wrongful disclosure, would apply. This provides for a maximum penalty of two years’ imprisonment for such an offence. My noble friend’s amendment seeks to increase this penalty to five years’ imprisonment, as well as having the potential to fine a corporation by up to 4% of its annual turnover. The noble Baroness, Lady Neville-Rolfe, took exception to that, but we think that this provision needs to have some detail, power and meat to it. I cannot answer the question from the noble Lord, Lord Purvis, but I will take away his point and reflect on it after this afternoon’s debate. In general terms, we want to make sure that individuals are protected, and we do not believe that the current penalty acts as a great enough deterrent to stop parties acting carelessly and without authorisation. We believe that these proposed changes are proportionate and will provide that protection. We hope that the Minister will agree with that but, in any event, we shall be very interested in his comments on the penalty range as it currently is.

Photo of Lord Grimstone of Boscobel Lord Grimstone of Boscobel The Minister of State, Department for International Trade, The Minister of State, Department for Business, Energy and Industrial Strategy 4:30 pm, 15th October 2020

My Lords, if it is a parliamentary expression, I may perhaps first say touché to the noble Lord, Lord Purvis, in relation to our earlier exchanges and I look forward to receiving his letter on those matters.

On my amendments, I was perhaps too optimistic and hopeful in describing them as minor and technical government amendments. So that I can give a full and accurate response to noble Lords who have raised questions on them, I will write to noble Lords answering all their points and place a copy in the Library.

Turning to Amendment 89 in the name of the noble Lord, Lord Stevenson, there are criminal penalties for any unauthorised sharing of data that apply under the existing Commissioners for Revenue and Customs Act 2005, which the Bill references. I would not want to impose different penalties for wrongful disclosure of HMRC data shared for trade purposes from those for HMRC data shared for other purposes under the 2005 Act. It would seem wrong to make that differentiation. I hope that provides reassurances to the noble Lord and that he will withdraw Amendment 89. I commend Amendments 86, 90 and 96.

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

I shall now put the Question that Amendment 86 be agreed to. As many as are of that opinion will say content. To the contrary, not content.

A noble Lord:

Not content!

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

We find ourselves in strange circumstances and I find it a little disconcerting. I have asked one specific question to which I would like a reply before the government amendments are adopted. Once they leave here, they become part of the Bill and we cannot come back on Report.

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

I wonder whether I could take advice from the Minister on whether to call a Division.

Photo of Lord Grantchester Lord Grantchester Opposition Whip (Lords), Shadow Spokesperson (Energy and Climate Change), Shadow Minister (Environment, Food and Rural Affairs), Shadow Spokesperson (Business, Energy and Industrial Strategy)

I suggest that, as with all other noble Lords’ amendments, the Government just withdraw it at this stage so that we can return to it on Report.

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

Would the noble Lord, Lord Purvis, be happy if we returned to this at a later stage? Does the noble Lord particularly want to call a Division at this stage?

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade)

I know it is not in order in these proceedings to have points of order from Members, but a solution, given the very valid point made by the noble Lord, Lord Grantchester, is to allow this pause to happen. It is highly unusual for government amendments to be presented in Committee and for the Minister to indicate that answers to questions raised in Committee will be provided after a vote for them to pass has happened. There is no ability for the House to reflect on the letter from the Minister. A solution would be for the Government not to press these amendments in Committee but to bring them back on Report, which may well happen very straightforwardly. That may well be the solution.

Photo of Viscount Younger of Leckie Viscount Younger of Leckie Lord in Waiting (HM Household) (Whip)

My Lords, I am listening to the various comments from around the House. I am surprised that the noble Lord, Lord Grantchester rose to suggest that he was against us moving the amendments. However, bearing in mind the mood of the Committee, we will withdraw this amendment.

Amendment 86 withdrawn.

Amendments 87 to 89A not moved.

Clause 8 agreed.

Clause 9 agreed.

Clause 10: Offence relating to disclosure under section 9

Amendment 90 not moved.

Clause 10 agreed.

Amendment 91 not moved.

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

We now come to the group consisting of Amendment 92. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear in debate.