Emails / recorded information from/to HMRC senior officials containing the search terms 'Morse' and/or 'Amyas' and/or 'LCAG' and/or 'Loan Charge Action Group'

The request was refused by HM Revenue and Customs.

Dear HM Revenue and Customs,

Please provide all sent and all received emails - including email attachments - containing the search terms 'Morse' and/or 'Amyas' and/or 'LCAG' and/or 'Loan Charge Action Group' between the period 21 October 2021 to 04 November 2021 inclusive (which equates to a period of eleven working days) from the mailboxes of the following senior HMRC officials:

Jim Harra - First Permanent Secretary and Chief Executive
Angela MacDonald - Deputy Chief Executive and Second Permanent Secretary
Penny Ciniewicz - Director General Customer Compliance
Alan Evans - General Counsel and Solicitor
Mary Aiston - Director Counter Avoidance
Jonathan Athow - Director General Customer Strategy and Tax Design

If the department holds recorded information of any other kind and/or in any other format (including, but not limited to SMS text messages, WhatsApp messages, Signal messages, internal memos, documents etc.), which includes reference(s) to any of the search terms listed above and was received or sent by one or more of the six named individuals between the dates specified, please also disclose and provide this data.

Yours faithfully,

F Thompson

FOI Team, HM Revenue and Customs

Our ref: FOI2021/26617

Dear Mr Thompson,

Freedom of Information Act 2000 Acknowledgement

Thank you for your communication of 4 November.

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

We will arrange for a reply to be sent to you which will either comply
with our 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.

While we aim t o respond to all freedom of information requests within 20
working days, if for some reason this timescale cannot be complied with,
we will, where possible, write to you explaining the reason for the delay
and provide an estimated time for response.

Yours sincerely

HMRC Freedom of Information Team

FOI Team, HM Revenue and Customs

1 Attachment

Dear Mr Thompson,

We are writing in response to your request for information, received 4
November.

Yours sincerely,

HMRC Freedom of Information Team

Dear HM Revenue and Customs,

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 'Emails / recorded information from/to HMRC senior officials containing the search terms 'Morse' and/or 'Amyas' and/or 'LCAG' and/or 'Loan Charge Action Group''.

Within the specified period 21 October 2021 to 04 November 2021 inclusive (eleven working days), you have confirmed that "relevant searches have identified 28 emails within the scope of your request". The original request was explicit that any search you undertake should not be limited to emails, so - with that stipulation clearly in mind - can you please officially and publicly confirm that HMRC holds NO recorded information of ANY other kind relating to this request within the specified dates?

You inform me that of those 28 emails, 24 have been withheld in their entirety as you claim use of section 36(2)(b)(i) and (ii) of the FOIA, with a further single email withheld in its entirety by claiming use of section 44(1)(a) of the FOIA.

You include the remaining three emails as an annex.

Email 1 is from what appears to be a contracted media monitoring company (Gorkana), sent to an individual (redacted) in HMRC Comms Press Office and another individual member of staff (also redacted). The recipient list clearly does not include any of the named senior HMRC officials detailed in my request, as these would not need to have been redacted.

Email 3 appears to be a forwarded email, originally received from the same media monitoring company (Gorkana) by an individual (redacted) in HMRC Comms Press Office and another individual member of staff (also redacted), and sent to an internal distribution list 'Press summaries - Trade'. The recipient list clearly does not include any of the named senior HMRC officials detailed in my request, as these would not need to have been redacted.

Both emails include a simple list providing information relating to news items and articles of interest and relevance to HMRC, which would presumably be structured as urls with the relevant publication or site detailed beneath. Each email list contains a single reference to an online news article relating to the Morse review, which you will be well aware serves no purpose in the context of this request - which is clearly why these were considered as suitable for disclosure.

Email 2 refers to a PQ tabled by Daisy Cooper MP, asking how many people seeking refunds of Loan Charge payments under the changes adopted following the Morse Review have been (a) successful and (b) refused, with a blank guidance template included as an attachment. Again, it is clear why you consider this (non) information suitable for disclosure. As the response to this PQ was due by 27th October at 12:00, I can reasonably conclude that the reply constitutes one of the 24 which have been deliberately withheld, but please provide the courtesy of confirming that assumption.

HMRC's Executive Committee will be fully aware of the letter sent by the Loan Charge Action Group to Lord Amyas Morse dated 21 October 2021. This letter (http://www.hmrcloancharge.info/wp-conten...) details the powerful and compelling evidence which has been revealed since he undertook his review and which, had it been known at the time, could and indeed should have made a difference to his conclusions and recommendations. These factual findings unquestionably render his fundamental conclusion – that the law was clear from December 2010 – as both flawed and unsound.

With more than three months now having passed, Lord Morse has still not provided a response. As a parliamentarian and subject to the Code of Conduct for Members of the House of Lords and the strict observation of the seven general principles of conduct identified by the Committee on Standards in Public Life, it is both shameful and regrettable that he has decided to undermine those principles by staying conspicuously silent on the matter - when the lives of tens of thousands of UK citizens remain so adversely affected by his own decisions.

It is undoubted that this letter would have been the subject of internal discussion and debate by those named senior HMRC officials and it is those exchanges which you have determined should be withheld on the basis that it is not in the public interest to disclose. It is my assertion - and one which is clearly shared by those many thousands affected by the Loan Charge - that the use of the public interest exemption does not stand scrutiny when people are actually losing their lives as a direct result of this retrospective policy. Conversely, it would appear that the only - and exclusive - interest being served by your decision to withhold this information is that of those senior HMRC officials, whose waning reputation for honesty and candour remains under firm and sustainable challenge from tax professionals and news commentators across the public domain.

I therefore do not concur with your view that section 36(2)(b)(i) and (ii) applies, as it is highly likely that one of the HMRC commissioners provided the opinion which is being claimed as engaging section 36, but which is transparently in their own self-interest rather than serving the public interest.

As a result, please provide, as an integral part of your response to this request for an internal review:

1) the name of the qualified person who provided that opinion, where qualified person, in relation to information held by a government department in the charge of a Minister of the Crown, means any Minister of the Crown; or, in relation to information held by any other government department, means the commissioners or other person in charge of that department.

2) the full and unabridged text of that qualified person’s opinion, and all recorded information, of any type or in any format, which contains submissions (or exchanges of opinion) provided to the qualified person for considering that request.

3) all metadata held in any recorded form by the department which relates to my original FOI request, as well as this request for an internal review.

According to the Information Commissioner's Office guidelines on the prejudice to the effective conduct of public affairs, section 36(2) is expressed in broad terms, and in order for the opinion to be reasonable, it must be clear as to precisely how the prejudice or inhibition may arise.

Section 36 depends crucially on the qualified person’s exercise of discretion in reaching their opinion. This means that they must consider the circumstances of the particular case before forming an opinion. The ICO recognises that public authorities will tend to develop a general approach to, or policy on, releasing certain types of information, but this must not limit the qualified person’s discretion. An opinion formed purely on the basis of a ‘blanket ruling’ may not be reasonable if it does not take account of the circumstances at the time of the request. The qualified person should consider the facts in each case, weigh the relevant factors and ignore irrelevant factors in order to reach their opinion. If it is not evident how the provision of advice or the exchange of views would be inhibited, it may be harder for the ICO to find that the opinion was a reasonable one.

You claim in your response that "Officials expressing candid views on the issue assumed that they were doing so in a confidential safe space, with HMRC considering that disclosure of the withheld information is likely to undermine its staff’s confidence in this safe space". The safe space argument is more commonly applied to the development of government policy, and as such it relates to section 35 - not section 36.

In the case of section 36, the ICO expect that the qualified person would take the opportunity to consider their reasonable opinion again, taking account of any comments from the complainant. Furthermore it should always be possible for the public authority to fully review the public interest arguments.

On this basis, the ICO would expect to see a record of who gave the opinion, their status as qualified person and the dates when the opinion was sought and given; furthermore, in order to consider whether the opinion was reasonable, they will expect to see a copy of the submission made to the qualified person detailing the information in question, the factors to be taken into account and the reasons why disclosure would or would be likely to have the specific prejudicial or inhibitory effect. Public authorities should also provide a record of the factors the qualified person took into account, the weight they attached to them, and the opinion they gave.

You raise the point that the department’s ability to operate effectively needs to be protected. I do not disagree - the reason I am challenging the use of this claimed exemption is precisely because the authority in this instance has NOT operated effectively, as the irrefutable and conclusive evidence in the letter to Lord Morse clearly proves.

You also claim that "it is in the public interest for officials to be able to have confidential dialogue in the execution of their duties and for them to exchange views freely and frankly. Advice provided and received must be detailed and candid if it is to be of value. For all of this to occur, officials must be free of any inhibitions that might interfere with their ability to offer comprehensive input based on free and frank discussion".

The ICO is clear that civil servants and other public officials are expected to be impartial and robust when giving advice, and not easily deterred from expressing their views by the possibility of future disclosure - concluding that it is also possible that the threat of future disclosure could actually lead to BETTER quality advice.

The Information Commissioner's Office document detailing the public interest test (in relation to the Freedom of Information Act) references many significant indicators, not least those which are contained within the overview in the opening pages:

'The authority must consider the balance of public interest in the circumstances of the request'. I do not consider that you have properly done so.

'There will always be a general public interest in transparency. There may also be a public interest in transparency about the issue the information relates to. The authority should consider any public interests that would be served by disclosing the information'. I do not consider that you have properly done so.

'If there is a plausible suspicion of wrongdoing on the part of the public authority, this may create a public interest in disclosure. And even where this is not the case, there is a public interest in releasing information to provide a full picture'. HMRC's culpability in the Loan Charge 'debacle' has been long-established - the Radio 4 programme 'Money Box' which was broadcast last weekend contained an interview with tax lawyer Sarah Gabbai, who stated - "HMRC should have relied on the Agency Rules of the Employment Income Tax code and it should have collected the Pay As You Earn income tax by those means - ironically, had it done so, it would have collected more tax than by means of the Loan Charge". She continued - "What I would urge HMRC and the Treasury to do is to look at this as a financial scandal. It is not a case of deliberate tax avoidance here. We are talking about people who have been mis-sold". To date, and despite the overwhelming evidence which has been revealed supporting that position, HMRC have continued to remorselessly persecute and victimise those affected individuals. The case for meeting the public interest in disclosing the information contained in these 24 emails could not be stronger - as each day passes, HMRC's refusal to do so only compounds that plausible suspicion of wrongdoing.

'Arguments based on the requester’s identity or motives are generally irrelevant. Arguments that the information may be misunderstood if it were released usually carry little weight'. This needs no further explanation or comment.

'The authority must consider the relative weight of the arguments for and against disclosure. This can be affected by the likelihood and severity of any prejudice; the age of the information; how far the requested information will help public understanding; and whether similar information is already in the public domain'. There is huge public interest in establishing to what lengths the senior officials at HMRC have gone, and the steps they have taken, in order to try and deny fact and evidence, and distance themselves from this ongoing scandal. The release of this information is essential to help establish the actual reaction and response from those officials, and to clarify their understanding and acceptance (or otherwise) of the legal points and summary challenges raised in the letter to Lord Morse.

Given the many thousands of citizens and their families so unjustly affected by the retrospective policy known as the Loan Charge, and the deep distrust of HMRC which has since formed as a result of their refusal to acknowledge, or act upon the numerous concerns raised by the Loan Charge and Taxpayer Fairness All Party Parliamentary Group in their correspondence and reports, then one could reasonably suggest that the public interest test is served by this fact alone. However, when there is also 'a plausible suspicion of wrongdoing on the part of the public authority' - as in this specific case, and as served, evidenced and proven by the content of the letter to Lord Morse - then one could perhaps be even more assured that any reasonable person would conclude that the public interest test is already clearly met. I feel confident that the hundreds of MPs and peers who remain members of the Loan Charge and Taxpayer Fairness APPG would vehemently agree.

The Loan Charge, via the Finance (No. 2) Act 2017, received Royal Assent on 16 November 2017 - more than four full years ago. The report containing Lord Morse's recommendations was published in December 2019 - now more than two full years ago.

Whilst the Information Commissioner accepts that the government may need a safe space for a short time after a major policy is finalised in order to properly present, explain and defend its key points, this safe space will only last for a short time. Once the government has had a chance to properly set out its position and frame the debate - as it has clearly already done here - then a safe space is no longer required and this argument will carry little weight. The timing of any subsequent request will therefore be an important factor, as whilst a public interest test might favour non-disclosure in the early stages of policy formulation and development (as referenced earlier in this request for an internal review - where it has been clarified that the 'safe space' argument primarily relates to section 35 - not section 36 of the FOIA), the validity of this will diminish over time. As previously confirmed, this policy has been in place since November 2017 and was subject to implementation decisions, as per the Morse review, in December 2019.

HMRC claims that disclosure "could constrain the private space needed for the purpose of advice and deliberation". The government placed the policy on the statute book more than four years ago. The Morse review is complete. The Morse report was published over two years ago. So what, precisely, is still being 'deliberated'? What 'views' are being 'inhibited'?

Other than the names of any Senior Civil Service (SCS) grade personnel, my request does not seek the provision of any third-party personal data, so redaction in those cases (e.g. under s40(2)) is obviously considered acceptable and expected as per the FOI guidelines. I also understand and accept your claimed use of section 44(1)(a) as the withheld information in this instance is HMRC’s response to a complaint from a named individual.

I conclude this internal review submission by requesting that the 24 emails comprising 3 email chains (which you have withheld) are now disclosed in their entirety and with immediate effect. Should this be refused and the information continue to be withheld, this will be instantly escalated as a complaint to the Information Commissioner's Office.

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

Yours faithfully,

F Thompson

FOI Team, HM Revenue and Customs

Our ref: IR2022/01383

Dear Mr Thompson,

Freedom of Information Act 2000 Acknowledgement

Thank you for your communication of 24 January.

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

We will arrange for a reply to be sent to you which will either comply
with our 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.

While we aim to respond to all freedom of information requests within 20
working days, if for some reason this timescale cannot be complied with,
we will, where possible, write to you explaining the reason for the delay
and provide an estimated time for response.

Yours sincerely

HMRC Freedom of Information Team

Dear FOI Team,

Please could you confirm your current position on my internal review request, as the 20-day timeframe you stated as an aim has now passed.

The ICO confirm that In these circumstances, you should write to inform me that you need more time and to also provide a reasonable target date, which should equate to no more than an additional 20 working days (40 in total).

Yours sincerely,

F Thompson

Dear FOI Team,

I have received no response to my last communication, which asked you to please confirm your current position on my internal review request, as the 20-day timeframe you stated as an aim has now passed.

The ICO confirm that In these circumstances, you should write to inform me that you need more time and to also provide a reasonable target date, which should equate to no more than an additional 20 working days (40 in total).

Once again, and with 28 working days now having passed, may I please remind you of that obligation and to provide a reasonable target date as explicitly stated by the ICO.

Yours sincerely,

F Thompson

Dear FOI Team,

I have written twice previously (on 25 February and 03 March) to ask you to confirm your current position on my internal review request, and still I await any response from your team.

Today marks the 40th working day since my request was communicated, so - at the third time of asking - please will you provide the courtesy of a reply and an explanation as to why you have apparently needed this extended period, which is now at the limit stipulated in the published ICO guidance. As you have decided not to take the opportunity to supply a reasonable target date within this 40 day period, I politely request that you fulfil your obligation to do so tomorrow (22 March), by return.

If you consider you have legitimate reasons to support a longer extension and feel that you are able to continue to justify this ongoing delay, then please include clear details of those arguments in your response.

Yours sincerely,

F Thompson

Dear FOI Team,

It is now 50 working days without either response, explanation or estimate.

Yours sincerely,

F Thompson

Team, FOI, HM Revenue and Customs

1 Attachment

Dear Mr Thompson,

We are writing in response to your request for information, received 24
January.

Yours sincerely,

HMRC Freedom of Information Team