Data Protection Bill [HL]

Debate between Baroness Hamwee and Lord Hope of Craighead

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 13th November 2017 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I want to add a word in support of the points made by the noble Lord, Lord Pannick, particularly with reference to the concerns that some people have expressed about money being moved out of the very closely and properly regulated regime of English trust law to offshore organisations and jurisdictions which are less careful about how people’s money is handled.

I should declare an interest as Chief Justice of the Abu Dhabi Global Market Courts. I am not suggesting that this has anything to do with Abu Dhabi, but it has introduced me to an aspect of trust law with which I was not previously familiar, and it bears closely on the point made by the noble Lord, Lord Pannick. He referred to Jersey as one of the jurisdictions of concern. One aspect of its legislation which has come to my attention through my connection with Abu Dhabi is the Foundations (Jersey) Law 2009. This is a structure set up by statute under Jersey law which is matched with an equivalent statute in Guernsey. It creates a form of trust which is, as it were, a hybrid between a trust and a corporation with a number of aspects that are described very well in Sections 25 and 26 of the Jersey law.

One of the points about the foundation, which appears in Section 25, is that a,

“beneficiary under a foundation … has no interest in the foundation’s assets; and … is not owed by the foundation or by a person appointed under the regulations of the foundation a duty that is or is analogous to a fiduciary duty”.

So the beneficiary under that system is rather different from a beneficiary under our system, where undoubtedly they have an interest in the foundation’s assets. But also to the point is Section 26, which provides that foundations are,

“not obliged to provide information”.

That has its counterpart in the point made about the Data Protection Act in that jurisdiction. It says that except,

“as specifically required by or under this Law or by the charter or regulations of the foundation, a foundation is not required to provide any person … with any information about the foundation”.

It goes on to say in subsection (2) that the,

“information mentioned in paragraph (1) includes, in particular, information about … the administration of the foundation … the manner in which its assets are being administered … its assets; and … the way in which it is carrying out its objects”.

I do not wish in any way to criticise how the foundation laws are run in Guernsey or Jersey, but it is a pattern which, if repeated in less scrupulous jurisdictions, has obvious attractions. People move into a foundation and nobody knows what part of the foundation money they own, because they are not supposed to own any part of it, and the foundation is not obliged to disclose any information at all. There is a risk that those who are keen, for whatever reason—it could even be for matrimonial reasons—to conceal their assets could move them offshore from a trust such as we have in this country, closely regulated and subject to the ordinary rules, to one of these other bodies, which we would not wish to encourage. One has only to look at the Criminal Finances Act 2017 and some of the clauses in the Sanctions and Anti-Money Laundering Bill that is before the House to see that we are taking a completely opposite line to the foundations laws, because we are insisting that we should be provided with information about what organisations of this kind hold and, indeed, who holds what assets. We have not got as far as actually requiring trusts to do that but, certainly, anyone who puts his money into a company, in an attempt to conceal his assets within the company, will be forced eventually to have that information disclosed.

I add these points to suggest that the point that the noble Lord, Lord Pannick, made has a great deal of substance, which one can trace through the foundations law. I stress again that I am not criticising how this is administered in Jersey or Guernsey—that is not really the point. The point is that those who would wish to copy their systems are subject to less close scrutiny. I also emphasise that I am not suggesting that we in this country would want to adopt a foundations law; that would really be quite contrary to how our current legislation is proceeding. So there is an important issue here about protecting ourselves—and those who set up trusts here and administer them properly according to our rules and conventions—against a loss of business, which would be detrimental not only to those who run the businesses but to the whole ethic by which we practise our trust law.

I hope that the Minister and those advising him will look carefully at the Jersey and Guernsey examples, with a view not to criticism but to sensing the risk to which the noble Lord, Lord Pannick, drew our attention.

[Baroness Hamwee (LD)]

My Lords, Amendments 80A and 83A are in the names of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Arbuthnot, and come from the Bar Council. In their unavoidable absence, I have again been asked to speak to the amendments. The Government have amendments also to paragraph 5 of Part 1 of Schedule 2—and no doubt we will be asked to agree them shortly. These amendments deal with other aspects of that paragraph and relate to legal professional privilege. The paragraph, as amended, refers to the disclosure of data but disclosure is only one of the acts of processing. The Bar Council is concerned that we need to deal with processing more widely so as not to disrupt the activities of the court and to protect privilege, which is something we have debated on many occasions and which we all agree is not only important but a fundamental right for persons and organisations.