Trade (Disclosure of Information) Bill

Paul Blomfield Excerpts

Committee stage & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage & Report stage: House of Commons
Wednesday 16th December 2020 Commons Chamber

[Paul Blomfield (Sheffield Central) (Lab)]

We recognise that at present there are limited circumstances in which Her Majesty’s Revenue and Customs can disclose information, such as when consent has been given by a taxpayer or when compelled to do so to comply with a court order. The Bill clearly continues that tight framing over the protection of information.

I have a few questions for the Minister, but I shall first comment on amendment 1. Although it is clear that amendment 1 aims to make watertight clause 2(8)—and I do understand the concerns behind that—Labour is satisfied that subsection (8) offers sufficient protection. However, I hope that the Minister can expand on that and explain what kind of instances subsection (7) might cover so that we can be fully assured on that point.

As we said earlier, this Bill is very much a lift of clauses 8 to 10 of the Trade Bill, although it diverges slightly by widening the protections in clause 2(8), ensuring that no disclosures made under this Act would

“contravene the data protection legislation, or…be prohibited by the investigatory powers legislation”,

rather than including specific references to the parts of the Investigatory Powers Act 2016 and the Data Protection Act 2018, as we saw previously. Will the Minister give us a reason for that change and let the House know what is now in scope that was not previously?

The Bill gives new powers to HMRC to share information with international bodies, local bodies, devolved Administrations and others for analysis and monitoring. Will the Minister elaborate on the purposes for which that might be done, more specifically? Perhaps he could also explain the way in which the border operations centre will use that data to support local authorities, local resilience forums and other key public services, such as hospitals and clinical commissioning groups, when transporting key medicines or vaccines during the pandemic.

A little more broadly, I wonder whether the Minister could give other details about the border operations centre and the Government’s preparations for the end of the transition period. For instance, after the awarding of the port infrastructure fund yesterday, what assessment has he made of the number of ports that consider their allocation of the fund adequate to cover the necessary infrastructure changes required by the border operating model? As that fund was so significantly over-subscribed, what discussions is the Minister having with the Cabinet Office to ensure that our borders are fully operational by 1 January?

There is another point on which many of my colleagues and I have pressed Ministers. I do not think that we have had the opportunity to press this Minister on it, though, so I will give him a chance to answer. Can he tell us how many customs agents of the 50,000 recommended by the Government have now been trained and recruited? Will he also give us an update on the IT systems required to process customs and support our borders after the transition? Data sharing under the powers of the Bill is clearly welcome, but we also need the systems that sit alongside it to enable us to minimise disruption.

The Bill is needed to allow public bodies to access information about their areas and to prevent disruption. It also contains useful protections regarding data sharing, but it is a drop in the ocean when it comes to preparedness for the end of the transition period, so I hope that the Minister can answer some of those additional questions and give not simply this House, but business, the reassurance that it needs.

[Stewart Hosie (Dundee East) (SNP)]

I wish to speak to amendment 1,

tabled in my name, and to some of the other clauses.

During the passage of the incomplete Trade Bill there were, as the Minister will have seared into his soul, a number of debates and amendments—I think amendments 33 and 34—relating to the requirement to collect data by Her Majesty’s Revenue and Customs, specifically with regard to the exclusion of protection of legal professional privilege, which in many other circumstances would have applied. The same issue to some extent arises, in terms of the disclosure of information, in clause 2(7) of the Bill. It states:

“A disclosure under this section does not breach— (a) any obligation of confidence owed by the person disclosing the information, or (b) any other restriction on the disclosure of information (however imposed).”

The explanatory notes make it very clear that

“Certain information held by specific public authorities are subject to constraints on disclosure. To enable sharing of this information, clause 2(7) provides a general disapplication of these restrictions.”

If I may, I will just remind the Minister what was said in previous debates on this matter. Legal professional privilege and confidentiality are essential to safeguard the rule of law and the administration of justice. They permit information to be communicated between a lawyer and client without the fear of it going to a third party without the clear permission of the client. In normal circumstances, that includes HMRC. Many UK statutes already give express protection of legal privilege and it is vigorously protected by the courts.

We are in a rather odd position where data can be collected and is required to be collected, and where legal professional privilege has been disregarded entirely. We are now in a position where clause 2(7) disregards legal privilege in terms of the disclosing or sharing of that information. The Minister may well pray in aid some of the limited protections that are offered in clause 2, but if I run through them I suspect we might conclude they are not quite as strong as the Minister might like to think they are. The explanatory notes state:

“Clause 2(8) confirms that nothing in this section authorises the disclosure of information which would contravene data protection legislation or which is prohibited under the Investigatory Powers Act 2016.”

So far, so good—that is helpful, but very, very narrow. Others may say that it is only specified public authorities who can disclose or share information. They are specified in clause 2(3) as: the Secretary of State, the Minister for the Cabinet Office, a strategic highways company, or a port health authority constituted in a particular way. However, clause 2(9) states:

“A Minister of the Crown may by regulations made by statutory instrument amend this section for the purpose of specifying a public authority in, or removing a public authority from, subsection (3).”

Therefore, any number of other bodies could be added to that list. The other protection one could point to would be to say, “Ah, but they can be added if they are dealing with functions relating to trade.” They include:

“the analysis of the flow of traffic, goods and services...the analysis of the impact, or likely impact, of measures or practices…the design, implementation and operation of such measures”,

and so on. Those three specifics, however, are prefaced by:

“Those functions include, among other things, functions relating to”.

That allows it to be completely open-ended. It is not a comprehensive or complete list. As anyone watching will know, trade is no longer simply about traffic flows, the number of containers, quota and tariffs. It is about a whole range of things: all sorts of regulations, security, immigration and goodness knows what.

The provision is vague and ill-defined. It strikes me as being subject to scope creep by regulation. Fundamentally, it includes clause 2(7)(a) and (b), which is a get out of jail free card insofar as it disapplies the normal protections of information being disclosed, which would be subject in many other circumstances, including in statute, to legal professional privilege. That is actually a problem in the long run, but not necessarily in the short run as it allows us to get over an immediate hurdle where data must be shared. I appreciate that but, in the long run, how on earth can we say that we are a law-abiding country and that we want to adhere to the international legal system—the rule of law internationally—when we have here the disapplication of fundamental rights and protections for people not to have their information, normally subject to legal protection, shared, collected, distributed and disseminated. When the hon. Member for North East Bedfordshire (Richard Fuller) asked whether a private body could act as a public authority, the answer seemed to be that, yes, it could. That means that we could have a private body—a private company of indeterminate origin and a very small book value—doing something on behalf of the public, acting as a public authority, where the normal protection of data, which it may be provided with to fulfil its role, has the normal protections of legal privilege disapplied in statute.

Time is short. I know that this is urgent, I am not stupid, but this is actually serious. We cannot have a Government riding roughshod over legal protection, legal privilege, in this way over such a short period of time just because they have failed to get their ducks in a row and a proper functioning Trade Bill through where everything joins up.

It is not my intention, Dame Rosie, to press amendment 1 to a vote, but I do hope that the Minister takes seriously what I have just said and understands the possible consequences, particularly if it is private bodies acting as public authorities which have disapplied from them everything in terms of protection other than data protection and whether it would breach one other piece of named legislation. That is a serious and bad place to be.