Since this is both a Second Reading debate and, in effect, a debate on all stages, I hope noble Lords will forgive me if I make points that would be more relevant to a Committee discussion, rather than talking mainly about the principles of this short but important Bill. I completely understand that the Government are, rightly, taking steps to ensure that there is no gap in the availability of powers to share information between HMRC and other public authorities at the turn of the year, and I fully support the Bill.
On 9 January, I think, we will reach the third anniversary of the Second Reading of the original Trade Bill. I and the noble Lords, Lord Purvis of Tweed and Lord Stevenson of Balmacara, have been involved in each of the Trade Bills we have dealt with, so in a sense this is the son of the second Trade Bill. I hope that we can have it all done and dusted by the end of January, as was indicated in another place yesterday. That would be a relief to us all.
What is urgent is not necessarily controversial; this Bill is urgent and non-controversial. I think we all agree on the purposes we are pursuing: to make sure that the border operations centre can manage the flow of trade down to a commodity level on things such as food and medicines, in real time, in the early part of next year. I think we all agree that that is essential.
We are also all aware that some of the changes reflected in this Bill, compared with the Trade Bill as introduced here, are useful in particular to make it clear that the devolved authorities are among those with which HMRC can share its information for the purposes of these functions.
I turn to some of the rather more nitty-gritty questions. I would be grateful if my noble friend could address them when he replies, if they are not too detailed. I would completely understand if he felt the need to reflect and respond in writing, not least because we will reach Clauses 8 to 10 of the Trade Bill on day three of Report, which is scheduled for 6 January. There will be a further opportunity for any questions to be addressed then, because, as my noble friend said, the substantive permanent provisions relating to the disclosure of information are those that will, I hope, be enacted in the Trade Bill, which we will discuss early in the new year.
For those following this debate who perhaps do not have all the papers to hand, if one really wanted to look at this, one would have to look at the Bill we are addressing today, as well as the Trade Bill, which is currently on Report, and the Marshalled List to see the amendments my noble friend the Minister tabled for consideration on Report, which we will reach in the early part of the new year.
My first question is very simple, but I am afraid it may be esoteric. This Bill’s structure, in at least a couple of respects, is different from what my noble friend the Minister proposes by way of amendment to the Trade Bill, which we will consider on 6 January. As a former Leader of the House of Commons, I was responsible for the Office of the Parliamentary Counsel. I realised that the nature of parliamentary counsel is that they, more than anybody, realise that the writing of legislation is never perfect, and that it is always necessary to see whether one can further improve drafting. However, it is slightly odd that we are in a position where amendments to the Bill were tabled in November, then in December we consider a Bill to achieve the same effect where the drafting is different.
This is particularly true in two respects. There is a saving provision in Clause 1(6) of this Bill, which states:
“Nothing in this section authorises the making of a disclosure which would … contravene the data protection legislation, or … be prohibited by the investigatory powers legislation.”
The language of the amendment that has been tabled to the Trade Bill is
“save that the powers conferred by this section are to be taken into account when determining whether a disclosure is prohibited by those provisions”.
This Bill is different. It says:
“In determining whether a disclosure would do either of those things, the powers conferred by this section are to be taken into account.”
I hope that the meaning is exactly the same, but I do not understand why the drafting is different.
In that respect, I have a substantive question: what does it mean to say, “taken into account”? Legislation should be clear. The Explanatory Notes say in terms that Clauses 1 and 2, which say effectively the same thing, mean that this legislation would not authorise the making of a prohibited disclosure under data
protection legislation or investigatory powers legislation. What does it mean, then, to “take into the account” the “powers in this section”? Does it mean that they can be made? If the answer is that they cannot, why is the saving provision in the Bill? I would be grateful for my noble friend’s reply on that point.
Secondly, in more detail, the reference to the investigatory powers in this Bill is different from that in the Trade Bill, which refers to specific parts and chapters of the investigatory powers legislation, not the investigatory powers legislation as a whole. Why is that the case?
The noble and learned Lord, Lord Judge, raised a point on other legislation that also relates to the Trade Bill and to this Bill at Clause 2(2), which refers to the functions relating to trade, “among other things”. The noble and learned Lord asked why are we including this: what are these “other things”? Should we not be told what they might comprise? I do not require the Minister’s response on this as it is a drafting matter, but it would be very useful if the message was consistently sent back to suggest that the phrase “among other things” should be avoided where possible.
Those are all the points I wanted to make. My noble friend has been very clear about the sequencing. We can take comfort that, in so far as we will consider Clauses 8 to 10 of the Trade Bill in January, if this House and, in due course, another place were to change the Bill in any way—that is not impossible—those would become the substantive provisions and the permanent legislation. We are dealing now with something that is temporary by its very nature. I hope that that means that my noble friend’s amendments on Report will perhaps change a little to bring them in line with this Bill, but also that Report will be an opportunity for us to make sure and double-check that we have the permanent provisions in the right form.
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