Trade (Disclosure of Information) Bill

Stewart Hosie Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 16th December 2020 Commons Chamber

[Stewart Hosie (Dundee East) (SNP)]

The Minister, perfectly reasonably, described the Bill as, in essence, providing the legal basis upon which information can be disclosed and shared between public authorities to ensure that Ministers and those organisations can fulfil their obligations in terms of trade functions. That is perfectly reasonable—nothing wrong with that.

Indeed, the explanatory notes make it very clear that we need such a measure in any event, whether we have a deal—a good deal or a bad deal—or no deal in barely two weeks’ time, so this is absolutely necessary. I share the shadow Minister’s concern that the Trade Bill was not completed in its entirety. It is incomplete, and therefore we have to introduce a measure that may have a very short shelf life indeed.

I have one question on Second Reading, in relation to clause 1. The Minister rightly referred to the devolved Administrations potentially being added to the list of public authorities in clause 2, but clause 1(1)(b) already says that the Revenue may disclose information

“facilitating the exercise by a devolved authority of the authority’s functions relating to trade”.

That is already on the face of the Bill, so it does not need to be added in relation to the Revenue’s ability to disclose.

The Minister will be aware of the Scottish Government’s priorities in this regard. Ivan McKee’s letter to him on 12 August said:

“Our priority is getting timely and comprehensive access to the HMRC’s trade microdata, which sits behind the HMRC’s overseas trade statistics and regional trade statistics covering both exports and imports. This company-level data contains variables, such as: company reference number, date, flow, type, value of trade, quantity of trade, weight, commodity code, country of origin, destination, port of entry, dispatch, etc. These variables will allow the Scottish Government to analyse Scottish trade over time, sector, product and destination at a more detailed level than is currently published by the HMRC.”

That is a statement of fact, but given that clause 1(1) permits HMRC to disclose information connected to a devolved Administration to allow them to fulfil their obligations in relation to trade, can I just check with the Minister—I am sure this is correct, but I would be happy to have it on record—that this is not simply permissive, but that it is actually the Government’s intention to provide the data from the Revenue, as provided for by the Bill, to allow the Scottish Government to do accurate work in relation to their trade functions? I am sure that is the case, but it would be very helpful to have it on the record.

In case the Minister thinks he is going to get off with just that, it is worth pointing out that the letter of 12 August also says:

“That does not mean we support the UK Government’s proposed trade policy more generally.”

In terms of our demand for more parliamentary scrutiny, and so on, that is perfectly reasonable.

The Minister described the expedited timetable for this Bill, and my goodness, it is seriously expedited—just one day. Let me just gently say to him that, given that the explanatory notes said that we are going to need a measure like this in any event, if we had not wasted time on the pointless, meaningless, futile United Kingdom Internal Market Bill, whose avowed purpose is to break international law and engage in a power grab from devolved Administrations, we might perhaps have had time to have a rather less expedited look at this, including questions on access to and sharing of data, and where and who might have access to it. That might be quite difficult—although frankly, given how few people there are here, not so difficult—in the timetable that we have available.

I have no problem with supporting this Bill on Second Reading. There is one cause of concern that we will raise in Committee—and hopefully the Minister can provide good, strong answers to it—but, as it stands, we certainly have no intention of opposing, at this stage, the legal basis on which to share information.

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[Greg Hands]

I appreciate the hon. Member’s clarification. It certainly is not my job to outline whatever other legislation may be out there. That would be entirely a matter for the Leader of the House of Commons, who, as we know, made a statement on other legislation earlier this week.

The Member speaking for the Opposition, the hon. Member for Sheffield Central, says that he supports the Bill, he supports the continuity agreements, he supports its procurement measures, he supports the trade defences, he supports the data sharing—but he has used every available opportunity to vote against the Bill. He voted against it on Second Reading, he voted against it on Third Reading and it has been voted against at every available opportunity by the official Opposition and by the Scottish National party as well. He says that the concern is that we might kick the Trade Bill into the long grass. No, we very much want the Trade Bill to get Royal Assent as soon as possible. It has very important provisions in it, such as allowing domestic law to remain amendable for continuity trade agreements and the Trade Remedies Authority. It is a very important piece of legislation.

But I did welcome the hon. Member’s commitment to conclude the Trade Bill by the end of January. I see the current Government Deputy Chief Whip here—the Treasurer of Her Majesty’s Household, my hon. Friend the Member for Pudsey (Stuart Andrew). As a former Government Deputy Chief Whip, I and, as a former Chief Whip of the Opposition, Madam Deputy Speaker, you will know that that is not entirely in the hands of the Government and that, actually, it is very much as well in the hands of the whole of Parliament. But I will take that as a submission to the usual channels that the official Opposition want the Trade Bill to achieve Royal Assent by 31 January, which is what the hon. Member for Sheffield Central said. I will take that as a submission of the Opposition’s intent—good intent—to get it through as quickly as possible.

The hon. Member says he was against CRaG, but I remind him that it was the last Labour Government who introduced CRaG. His boss, the right hon. Member for Islington South and Finsbury (Emily Thornberry), actually voted for CRaG. He also propagated this deliberate confusion about the oven-ready deal. It is quite clear that that referred to the withdrawal agreement that the House of Commons voted on a year ago. I would just ask him: is he going to support the further trade deal, if there is one, with the European Union? We have heard silence from the official Opposition on that.

To turn to the hon. Member for Dundee East (Stewart Hosie), who also had a very constructive tone, in areas of devolved competence we have been clear. I am repeating the same commitments made at the Dispatch Box during the passage of the Trade Bill, including in the Committee stage of the Trade Bill, that he remarked on at the time and he will remember well. I am making those same commitments today. Overall, we wish to work with the devolved Administrations, particularly in areas of devolved competence, where they have a clear role, such as the management of highways, around ports and other things that relate to facilitating trade.

The hon. Member added, notwithstanding that, that he did not want me to think this was a sudden conversion, with him agreeing with the Government trade policy—definitely not. As I have pointed out from the Dispatch Box a few times, the Scottish National party has not supported a single trade agreement proposed either here or in Brussels.

I reassure my hon. Friend the Member for North East Bedfordshire (Richard Fuller) that these are not new measures in any sense. They are taken directly from the Trade Bill. The HMRC powers were published in 2017. The further powers were published in July on Report. We are introducing this legislation purely because the Trade Bill probably will not get Royal Assent before 31 December.

I reassure my hon. Friend that there are safeguards on the data. It is data that is already collected. There is no new disclosure of data. Specific named authorities are discretionary to support a Government Minister’s function in relation to trade. In terms of such things as anonymity, the existing restrictions around the General Data Protection Regulation and the UK Data Protection Act 1998 kick in. On taxation, there are already strong measures in place to protect the data of taxpayers. The Bill is clear that data can be shared only where disclosure would support functions related to trade. It could not be disclosed for any other purposes.

My hon. Friend also asked about a private company performing a function on behalf of a public authority. That is possible, but it would operate under the same restrictions and the discretionary powers would apply—GDPR and so on. He asked me for a Dispatch Box commitment on agriculture and food standards. Our commitment is absolute. The commitment that he and I made individually and collectively in our general election manifesto this time a year ago continues as well.

The hon. Member for Edinburgh West (Christine Jardine) called for an adjustment period, which I think is a new term for a transition period. She is calling for a transition period from the transition period, which would increase uncertainty. The UK is leaving the single market and the customs union on 1 January, and an indeterminate postponement of that would, by definition, only increase uncertainty.

[Stewart Hosie]

Will the Minister give way?

[Greg Hands]

I am going to finish now. The purpose of the Bill is simple: it allows the Government to use data that they already hold, in order to ensure the smooth flow of traffic, goods and people across the UK’s borders at the end of the transition period. The Bill will support better services by permitting data on the flow of international trade to be shared and analysed. The Bill does not create any new powers, but brings forward critical powers that are needed from the end of the transition period to ensure that the Government and public bodies can use the information that they already collect.

We have had a good debate, carried out in an excellent spirit, and I thank all Members for their contributions. My thanks also go to the Government Opposition Whips, of course, who have ensured that the Second Reading has run effectively—particularly under your direction, Madam Deputy Speaker.

Trade (Disclosure of Information) Bill

Stewart Hosie 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.

[Christine Jardine (Edinburgh West) (LD)]

I will not take the House’s attention for long. Again, I find myself in agreement. The Liberal Democrats have serious reservations about the original Trade Bill, but we recognise that, through no fault of this House, the Bill has to be expedited. We need some form of data protection and for our authorities be able to use the data effectively, so we are prepared not to go along with this Bill, but to accept that we need it and that we need it by 1 January. We are in this situation simply because the negotiations with the European Union have not gone in the way that the Government had assured us they would and because the situation has not been handled by the UK Government as expertly as we might have hoped.

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Removing subsection (7) would limit the information capable of being disclosed to the Cabinet Office and would ultimately impact the Government’s ability to mitigate disruption to the flow of traffic, goods and services at the border. I should stress that the Government take the protection of data held by Departments, public bodies and private companies acting on their behalf extremely seriously. As I have said, the gateway is permissive. It does not mandate that bodies listed in clause 2 must share information. Individual Departments and public bodies will need to be satisfied that data sharing is necessary to support functions relating to trade.

[Stewart Hosie]

If the Minister is right that removing the disapplication would restrict the Government’s ability to collect the data they need, will he tell the Committee what data that is currently protected the Government wish to access or have a hold of that they would not otherwise be able to get?

[Greg Hands]

That is a very reasonable question, but I will stress what I said earlier: it is not possible at this stage to anticipate what specific restrictions may apply to the additional public bodies, otherwise we would have put on the face of the Bill which other public bodies could be added in due course. We have not put those on the face of the Bill, but we have said that it is perfectly possible that, during the conduct of these operations, it will become clear that there is other data out there that would assist the Government in ensuring that trade flows well at the border. We want to ensure that those other bodies could quickly come within scope, through the delegated procedures that we have laid out in legislation, and therefore it would not be appropriate to put a general restriction on those bodies. It is best to rely on the overall restrictions in the legislation to ensure that we have robust data protection.

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[Stewart Hosie]

I would be delighted to take this opportunity to make the briefest of Third Reading speeches and to return to a theme that has typified this entire debate. Notwithstanding the need to be able to share data or to have the legal basis on which to do so, it is completely wrong to rush this through with potentially hours, or possibly a day or so, before the House rises for recess and barely a fortnight before the full horrors of Brexit come on to the British people and business in this country.

This is a lesson for us all in the future: there must be a better way of dealing with technical matters, even ones that come up urgently, than today’s very short and expedited debate. I hope that, as the Minister said in Committee, the Trade Bill gets its Royal Assent soon enough that the dangers implicit in this—temporary, I hope—legislation with a long sunset clause do not come to fruition.

Question put and agreed to.

Bill accordingly read the Third time and passed.

[Christine Jardine]

On a point of order, Madam Deputy Speaker, I thank you for your indulgence and your patience, and I ask your advice on a matter that has come to my attention today that is of great importance not only to my constituent, Murray Gray, but to a number of constituents, mostly children, who are currently in receipt of private prescriptions for medicinal cannabis. I have had confirmation today that the Department of Health and Social Care says that those prescriptions will not be permissible after 1 January, so a number of patients will find themselves without medication. I wondered whether there is some way that could be raised as an urgent matter to be discussed by the House, and that we could hear from the Department, before the House rises for recess.