Nid ydym yn gwybod a yw'r ymateb mwyaf diweddar i'r cais hwn yn cynnwys gwybodaeth neuai peidio - os chi ywDr Colin Iain Campbell MBChB FRSPH mewngofnodwch a gadael i bawb wybod.

Testing information for CEST update

We're waiting for Dr Colin Iain Campbell MBChB FRSPH to read recent responses and update the status.

Dr Colin Iain Campbell MBChB FRSPH

Dear HM Revenue and Customs,

Under the Freedom of Information Act 2000 I would like to request the following information be disclosed electronically:

HMRC's CEST tool has been updated in November and now includes additional questions. Please disclose:

1. The additional testing records/documentation relating to the revision of the tool.
2. A list of which cases from the case law the tool was tested against.
3. How many contractors were engaged to update the tool.
4. How many of the contractors working on the tool were deemed to be inside IR35.
5. A copy of any briefing notes provided to those updating the tool and any meeting minutes discussing what questions should be added.

In considering the information for release could you kindly consider apply any exemptions narrowly to the specific information covered releasing all non-exempt material.

In the unlikely event that commercial sensitivity under Section 43 is cited please state the *specific subsection* relied upon and full public interest reasoning. I shall reply with relevant public interest and prejudice representations for your consideration.

In the unlikely event that actionable breach of confidence is asserted it must be remembered that the requirement is not that such action could be brought but that if brought it would, on balance of probabilities, succeed. Whilst the exemption is absolute it must be recalled that such court cases consider the public interest and thus without consideration of the public interest one cannot apply the exemption despite the fact that the public interest consideration arrises indirectly unlike usual qualified exemptions . Please state the nature of any breach of confidence it is asserted would occur so that we can provide the required public interest representations for the applicability of the section to be reviewed and disclose the signed and dated non-disclosure agreement where it is claimed one would be grounds for such action.

With respect to Section 31 it is reminded that HMRC states CEST is only guidance and HMRC's own counsel has repeatedly stated at tribunal that CEST should be ignored and not considered as evidence -this despite HMRC rhetoric that it will view CEST as binding (the notable caveat is that it only considers this to be the case where it agrees with the answers, and then when things get to court dismisses use of the tool entirely - something not unsurprising as the tool is a mechanistic approach and has no legal status). It is clear then that information relating to the development of CEST falls outwith the scope of Section 31 and accordingly this exemption should not be used.

Public Interest Representation:

The fairness of up to 5 million people's employment status determinations may be affected by the information. CEST has repeatedly been criticised for a number of critical failings, from being a mechanistic approach to ignoring significant areas of caselaw. There is an overwhelming public interest in the tens of thousands of public sector contractors, and now millions of private sector workers understanding what has occurred here as this materially affects their businesses and could result in tens of thousands of companies failing and financial hardship for contractors.

There has been significant media coverage of the tool in newspapers and in Private Eye magazine, and every major party has so far made commitments to reviewing the proposals for IR35 roll out to the private sector and application to the public sector. Numerous MPs have signed an Early Day Motion relating to the public sector IR35 reforms and private sector roll out. This is thus an issue with significant political scrutiny, newspaper interest, and livelihoods on the line. There is an overwhelming public interest in HMRC being seen to act openly and transparently in this matter which would not be served by inappropriate use of qualified exemptions.

More detailed public interest representations and prejudice tests will be provided if necessary at internal review stage, including media and contractor news citations where relevant.

Yours faithfully,

Dr Colin Iain Campbell MBChB FRSPH PGDip(Law)

foi.team@hmrc.gsi.gov.uk on behalf of FOI Team, Cyllid a Thollau Ei Mawrhydi

Our ref: FOI2019/02545

Dear Dr Campbell,

Freedom of Information Act 2000 Acknowledgement

Thank you for your communication of 3rd December which has been passed to
HMRC's Freedom of Information Team.

We have allocated the above reference which you should quote if you need
to contact us.

The Team will arrange for a reply to be sent to you which will either
comply with HMRC's obligations under Freedom of Information Act or, if we
think it's an enquiry that we don't need to address under the terms of the
Act, let you know why. If it is the latter we will, if possible, pass it
on to a more appropriate part of the Department for answer.

Yours sincerely

HMRC Freedom of Information Act Team

foi.team@hmrc.gsi.gov.uk on behalf of FOI Team, Cyllid a Thollau Ei Mawrhydi

1 Atodiad

Dear Dr Campbell,

I am writing in response to your request for information, received 3rd
December.

Yours sincerely,

HMRC Freedom of Information Team

Dr Colin Iain Campbell MBChB FRSPH

Dear HM Revenue and Customs,

Firstly Happy New Year to the FOI team at HMRC. Many thanks for the important public service you provide.

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of HM Revenue and Customs's handling of my FOI request 'Testing information for CEST update'.

I wish to request a review into the handling of questions 1 ,2 and 5, as set out below and to alter the request in respect of 3 and 4 such that you should be enabled to comply without there being any risk regarding confidential information and request that you review your response in light of the revised request.

NB - NOTE ALSO THE ADDITIONAL FOI REQUEST AT THE END.

In general in relation to the attempt to claim a Section 22(1) exemption - the Commissioner is very clear that in general the longer the time to intended publication the less likely the exemption is to apply. You have set an EXTREMELY long window for publication which falls long after the promised review of IR35 by all major parties, including the Tories/HM Gov. This will prevent proper scrutiny being brought to bear on the updates to the tool during the review - indeed the reason this information is sought is with view to feeding into All Party Parliamentary Groups, consultations, and indeed this very review. It is our view that, given the lengthy time to publication Section 22(1) is highly unlikely to apply (eg See ICO Decision notice FS5012803 Paragraph 60 which states

"
..However, in considering Section 22(1)(c) timing is a key factor in considering what is reasonable in the circumstances. The Commissioner is of the view that, in general, the sooner the intended publication date the better the case for maintaining the exemption
"

The converse is clearly pertinent here and very clearly backed up by the ICO's guidance on Section 22. We accordingly feel the exemption does not apply, however please additionally see below and respond to the questions under each itemised point.

With respect to 1, 2 and 5, for which a Section 22 (1) exemption has been applied the following representations and points should form part of an internal review of this decision please, to avoid confusion with the initial request numbers these points have been given letters rather than numbers - a public interest representation covering all of these points follows:

(a). Could you confirm to what extent HMRC intended (prior to 3rd December 2019) to fully publish the entirety of each of the following, or whether HMRC intended to select appropriate information from the item in the bullet point point to publish at a later date. At what stage before publication will such a selection be made?
(i) Additional Testing Records/Testing Documentation relating to the revision of the tool.
-> You should clearly confirm whether or not you hold information within the scope of this point please.
->If held will the entirety be published or a selection of relevant parts?
-> If the latter when will this selection be made?
->Where does HMRC intend to publish this information, and to what audience?

(ii)A list of case law cases against which the tool was tested.
-> Clearly confirm whether or not information within the scope of this specific point is held please.
->If held will the entirety be published or a selection of relevant parts?
->If the latter when will this selection be made?
->Where does HMRC intend to publish this information, and to what audience?

IMPORTANT - HMRC has previously published a list of cases which the old CEST tool version was tested against IF THIS HAS NOT CHANGED then SECTION 22(1) --> CANNOT <-- apply as once information has been published before the exemption CEASES TO APPLY.

Thus it is vitally important that HMRC disclose whether additional cases were used in testing, and if not, then Section 22(1) does NOT apply HMRC is under a statutory duty to either disclose the list OR, if a Section 21 exemption is claimed to provide Advice and Assistance to locate the list under Section 16. Individual characteristics of the requester are an important consideration in deciding whether information is 'Reasonably Accessible' under Section 21 and I would point to the fact that, as a dyslexic, the information may be more difficult for me to locate than others. There is caselaw authority in Arnes v ICO & Cabinet Office (EA/2007/00110) that in situations where the individual characteristics of the requester make locating the information more difficult (the example is of a large database, such as is the case with the whatdotheyknow website) the public authority is under a duty arising from FOIA Section 16 to provide a link.

(iii) briefing notes provided to those updating the tool and any meeting minutes
discussing what questions should be added.

It seems somewhat dubious that a decision to publish this would have been taken before receipt of the FOI, as such information relating to the development and briefing of teams is not routinely published unless specifically requested. It is reminded that a publication decision must have been taken prior to the request for the exemption to apply and deciding to publish the information after the request as a means of avoiding disclosing information until a later date would not work.

PLEASE NOTE THE ADDITIONAL FOI REQUESTING WRITTEN EVIDENCE OF AN INTENT TO PUBLISH THIS INFORMATION AFTER THE INTERNAL REVIEW REQUEST.

-> Clearly confirm whether or not information within the scope of this specific point is held please.
->If held will the entirety be published or a selection of relevant parts? All meeting minutes? All briefing notes to developers?
->If relevant parts when will this selection be made?
->Where does HMRC intend to publish this information, and to what audience?

PUBLIC INTEREST REPRESENTATION:

We are astonished that HMRC feels it can legitimately conclude that it is reasonable to delay publication of such information when all political parties have committed to a review of IR35/Off Payroll prior to implementation in April 2020, no delay has as yet been announced to this date, and the information is explicitly sought to brief MPs, feed into the Loan Charge All Party Parliamentary Group, inform submissions to the promised review and any other consultations. HMRC's decision to delay publication for a long time, and until after legislation has been passed the advisability of which might be influenced by the information sought will have the effect of stimying debate and reducing the quality of the promised review. This will have repercussions for the entire gig economy - both workers and clients who may end up having to use a tool which may not be fit for purpose.

It will be noted that for Section 22 to apply under Section 22(1)(c) the decision to withhold must be 'reasonable in all circumstances' - withholding information vital to public debate on a matter so important all major political parties have promised a review, in some cases as a manifesto commitment, until after the review itself has occurred and the legislation itself has been implemented is very unlikely to be considered in all circumstances reasonable, nor in the Public Interest, as it could lead to a defective product being used en masse, and uninformed legislative decisions being made. I would specifically point out that the circumstances surrounding publication (that it could result in less scrutiny being prior to legislation being passed) are important on a statutory level, and that impending IR35 review, upcoming IR35 forum meetings, the upcoming budget, and planned legislation to roll out Chapter 10 of Part 2 of ITEPA 2003 to the private sector are all highly pertinent Circumstances within the meaning of 22(1)(c). This should be considered alongside the very long time before HMRC proposes publishing this. Please see also ICO Decision notice FS5012803 at paragraph 60 which states

"
..However, in considering Section 22(1)(c) timing is a key factor in considering what is reasonable in the circumstances. The Commissioner is of the view that, in general, the sooner the intended publication date the better the case for maintaining the exemption
"

Given all of the above I would suggest that the decision to apply the exemption is so irrational that it may well be Wednesbury unreasonable - in that no reasonable person acting reasonably could have made a decision to withhold the information until after the above events where they are acting appropriately and considering the Public Interest as required by the Act (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223).
--------------

Regarding questions 3 and 4 and HMRC's attempt to claim that a Section 40 exemption (Personal Data) applies to this.

Firstly, and apologies if this is somewhat pedantic, I would like to correct HMRC factually on the basis of the exemption. I can confirm that I am NOT the data subject here. Section 40 is ONLY an absolute exemption with respect to the data subject themselves own data (with respect to which Section 40 is an absolute exemption, this specifically arises under Section 40(1)...which does not apply).

You have not claimed Section 40(1) but rather Section 40(2), which given I am not a data subject I would agree is the appropriate section to consider. This is, contrary to what is stated, a qualified exemption - subject to a Fairness Test, rather than a public interest test.

I am, however keen to enable you to honour your data protection duties and would thus modify items 3 and 4 condensing them into a single information request and avoiding the issue HMRC is attempting to cite as follows, substitute questions 3 and 4 for:

------>"Please disclose what percentage of contractors working no the CEST tool update were deemed inside IR35( i.e. the Off Payroll Rules/Chapter 10 of Part 2 of ITEPA 2003)". <-----

There should be no risk that the new question format would identify any worker as only a percentage is sought.

NOTE that for the subject to be identified they need to be identifiable on the basis of publicly available information the exemption will not apply where use of internal information only held by HMRC might enable the identification of the worker (eg if there were only one worker - only HMRC/the worker would know this and a question of identification and thus breach of data protection principles on the basis of a 100% statistic would therefore not arise).

We trust that this enables your compliance with this section and that the qualified Section 40(2) exemption/fairness test are no longer an issue preventing disclosure failing which we would request that you provide Advice and Assistance as to how to prevent the exemption being engaged pursuant to your Section 16 duty.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/t...

======FURTHER FREEDOM OF INFORMATION ACT 2000 REQUEST ======

Under FOIA 2000 please disclose the following:
1. In relation to the original FOI request above
(a) All emails, messages, minutes, and information in a recorded format relating to the response to my original FOI request of 3rd of December. Including requests for the source material , and discussions on which exemptions might apply. The full subject and date and time of any emails is to be considered within the scope of the request, all names which can be disclosed due to seniority should be and where not disclosed due to Section 40(2) fairness considerations the job title/civil service rank should be disclosed in all instances.
(b) Could any written evidence of the intent to publish briefing notes provided to those updating the tool and any meeting minutes please be disclosed, OR please clearly confirm if this information is not held.

The stipulations as regards exemptions NDAs etc and public interest are the same as with the original request of 3rd of December and for brevity are not reproduced again here.

I look forward to your prompt response to this additional FOI request and to the Internal Review request ideally within the prescribed period of 20 days. Should you require clarification please contact me within 48 hours as per guidance. Where information is refused please provide Advice and Assistance with how to enable your compliance with a modified request where appropriate.

Many thanks for taking the time to read and respond to this message.

Yours faithfully,

Dr Colin Iain Campbell MBChB FRSPH

Dr Colin Iain Campbell MBChB FRSPH

Dear [email address] on behalf of FOI Team,

Correcting a minor typo:

------>"Please disclose what percentage of contractors working no the CEST tool update were deemed inside IR35( i.e. the Off Payroll Rules/Chapter 10 of Part 2 of ITEPA 2003)". <-----

should read:

------>"Please disclose what percentage of contractors working ON the CEST tool update were deemed inside IR35( i.e. the Off Payroll Rules/Chapter 10 of Part 2 of ITEPA 2003)". <-----

Yours sincerely,

Dr Colin Iain Campbell MBChB FRSPH PGDip(Law)

foi.team@hmrc.gsi.gov.uk on behalf of FOI Team, Cyllid a Thollau Ei Mawrhydi

Our ref: IR2020/00026

Dear Dr Campbell,

Freedom of Information Act 2000 Acknowledgement

Thank you for your communication of 7th January which has been passed to
HMRC's Freedom of Information Team.

We have allocated the above reference which you should quote if you need
to contact us.

The Team will arrange for a reply to be sent to you which will either
comply with HMRC's obligations under Freedom of Information Act or, if we
think it's an enquiry that we don't need to address under the terms of the
Act, let you know why. If it is the latter we will, if possible, pass it
on to a more appropriate part of the Department for answer.

Yours sincerely

HMRC Freedom of Information Act Team

foi.team@hmrc.gsi.gov.uk on behalf of FOI Team, Cyllid a Thollau Ei Mawrhydi

Our ref: FOI2020/00028

Dear Dr Campbell,

Freedom of Information Act 2000 Acknowledgement

Thank you for your communication of 7th January which has been passed to
HMRC's Freedom of Information Team.

We have allocated the above reference which you should quote if you need
to contact us.

The Team will arrange for a reply to be sent to you which will either
comply with HMRC's obligations under Freedom of Information Act or, if we
think it's an enquiry that we don't need to address under the terms of the
Act, let you know why. If it is the latter we will, if possible, pass it
on to a more appropriate part of the Department for answer.

Yours sincerely

HMRC Freedom of Information Act Team

foi.team@hmrc.gsi.gov.uk on behalf of FOI Central Team, Cyllid a Thollau Ei Mawrhydi

1 Atodiad

Dear Dr Campbell

The date that the response is due for your request, FOI2020/00028, has
been changed to 3rd March

Kind Regards

Fareena Asmat

Dr Colin Iain Campbell MBChB FRSPH

Dear [email address] on behalf of FOI Central Team,

You will be aware that a number of concerned members of the public have been emailing public interest representations about the above two FOIs to the following address:
Email: [email address]
Quoting reference: FOI2020/00028

Under the Freedom of Information Act 2000:

Please disclose copies of all public interest representations you have received about this FOI request. For the avoidance of doubt personal data about the providers of these representations is not sought (and time taken to redact such information under Section 40 is not a consideration with respect to the Section 12 Costs Limit).

Yours sincerely,

Dr Colin Iain Campbell MBChB FRSPH PGDip(Law)

foi.team@hmrc.gsi.gov.uk on behalf of FOI Team, Cyllid a Thollau Ei Mawrhydi

Our ref: FOI2020/00503

Dear Dr Campbell,

Freedom of Information Act 2000 Acknowledgement

Thank you for your communication of 2nd March which has been passed to
HMRC's Freedom of Information Team.

We have allocated the above reference which you should quote if you need
to contact us.

The Team will arrange for a reply to be sent to you which will either
comply with HMRC's obligations under Freedom of Information Act or, if we
think it's an enquiry that we don't need to address under the terms of the
Act, let you know why. If it is the latter we will, if possible, pass it
on to a more appropriate part of the Department for answer.

Yours sincerely

HMRC Freedom of Information Act Team

foi.team@hmrc.gsi.gov.uk on behalf of FOI Team, Cyllid a Thollau Ei Mawrhydi

1 Atodiad

Dear Dr Campbell,

With apologies for the delayed response, I am writing in response to your
request for information, received 7th January.

Yours sincerely,

HMRC Freedom of Information Team

foi.team@hmrc.gsi.gov.uk on behalf of FOI Team, Cyllid a Thollau Ei Mawrhydi

1 Atodiad

Dear Dr Campbell,

With apologies for the delayed response, I am writing in response to your
request for information, received 7th January.

Yours sincerely,

HMRC Freedom of Information Team

foi.team@hmrc.gsi.gov.uk on behalf of FOI Team, Cyllid a Thollau Ei Mawrhydi

1 Atodiad

Dear Dr Campbell,

We are writing in response to your request for information, received 7
January.

Yours sincerely,

HMRC Freedom of Information Team

foi.team@hmrc.gsi.gov.uk on behalf of FOI Team, Cyllid a Thollau Ei Mawrhydi

1 Atodiad

Dear Dr Campbell,

We are writing in response to your request for information, received 2
March.

Yours sincerely,

HMRC Freedom of Information Team

Nid ydym yn gwybod a yw'r ymateb mwyaf diweddar i'r cais hwn yn cynnwys gwybodaeth neuai peidio - os chi ywDr Colin Iain Campbell MBChB FRSPH mewngofnodwch a gadael i bawb wybod.