Dear Her Majesty's Treasury,

You responded to my recent FOI request (reference FOI2021/15854) on 01 September 2021, refusing to disclose the information requested and claiming exemption under sections 36(2)(b)(i), 36(2)(b)(ii) and 36(2)(c) of the FOIA.

As a consequence, please now disclose:

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 request (reference FOI2021/09786), the subsequent request (FOI2021/15854), the next allocated request (reference FOI2021/22729) and the recently allocated internal review (reference IR2021/25860).

Yours faithfully,

F Thompson

Dear FOI Requests,

Thank you for your reply of 2nd December 2021.

My original request, submitted on 4th November 2021, asked HM Treasury to disclose information on three closely connected points. These were all directly linked to your previous refusal to provide evidence of the decision-making process which led to the selection and appointment of Sir (now Lord) Amyas Morse, and which you withheld based on your claim that disclosure of this information is apparently not in the public interest.

The first of these points was clear in requesting the name of the qualified person who provided the opinion which HM Treasury claim justifies the use of section 36 of the Freedom of Information Act in this instance. Instead of supplying the name of that person, you just include a statement that the Exchequer Secretary to the Treasury is the 'qualified person' in relation to HM Treasury, but which does not answer the question as posed.

Helen Whately was appointed Exchequer Secretary to the Treasury on 16 September 2021 and is (currently) still in that role. Her predecessor was Kemi Badenoch, who held the post from 13th February 2020 to 15th September 2021. Can you please therefore confirm - with a straight 'yes' or 'no' response for complete clarity on this matter - that it was Kemi Badenoch herself who provided the opinion that disclosure of the requested information was not in the public interest?

For the purposes of this reply, I will draw the assumption that the answer is 'yes' - otherwise, one might reasonably conclude that your prior statement indicating that the Exchequer Secretary to the Treasury is the 'qualified person' in relation to HM Treasury was an attempt to somehow obfuscate the facts or supply a misleading answer, which I trust will not turn out to be the case.

The second point asked for 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. You have confirmed that HM Treasury does hold information within the scope of my request.

The third point asked for all metadata held in any recorded form by the department which relates to my original request (reference FOI2021/09786), the subsequent request (FOI2021/15854), the next allocated request (reference FOI2021/22729) and the recently allocated internal review (reference IR2021/25860). Again, you have confirmed that HM Treasury does hold information within the scope of my request.

However, you claim that this request is 'very wide in scope' and that your search has identified a large number of documents to consider, declaring that you would need to review each document separately with a view to determining whether any information was exempt from release due to sensitivities or personal data, and to then redact any exempt material. You contend that my request engages section 14(1) of the Freedom of Information Act due to the disproportionate effort that would be required to comply, but state that you may be able to comply with a future request if the focus was narrowed.

This claim - that you have identified a large number of documents in relation to this request - reveals the serious significance and importance of the matter at hand and self-evidently exposes the lengths to which HM Treasury is prepared to go in order to prevent disclosure of this information, lest it demonstrably reveals the internal unease and apprehension about its own culpability being unwillingly divulged, as well as the liberal disregard for public transparency and truth which still seems to ferment within the department. The authority will be fully conversant with the report published by the Loan Charge All-Party Parliamentary Group (now the Loan Charge and Taxpayer Fairness All-Party Parliamentary Group) in June 2020, which laid bare the distinct lack of independence and the unacceptable level of interference with the review by those government departments with a hugely vested interest in the outcome. The contents of this report, supported and endorsed by hundreds of MPs as members of this group, were ignored by government. From the very day on which the appointment of Sir (now Lord) Morse was announced as head of this review, there has been a consistent series of allegations broadcast and published in the media that Morse was not an independent reviewer and that the review itself, and the subsequent report, were both subject to interference by HM Treasury and HMRC.

Any reasonable observer would conclude that the public interest is best served by the full disclosure of the information requested, in order to establish the facts around that controversial appointment. I - and tens of thousands of other UK citizens - can see no basis on which HM Treasury could possibly disagree. It would seem entirely sensible - and indeed reasonable to anyone who fully understands the definition of independence - that HM Treasury should WANT to provide evidence which helps to stem the ever-expanding flow of these allegations and which confirms their position that this was a wholly impartial and independent review - whereas continuing to withhold and refusing to disclose the evidence simply confirms the opposite. It could not be any clearer, unless one remains blind to the truth and committed to a cover-up.

Additionally, there are numerous elements within your response which require challenge, clarity and a more detailed focus, which I will now seek to patiently address.

On the premise that it was indeed Kemi Badenoch who provided the opinion - which by now you will have confirmed either way - then the recorded information you hold will include the full and unabridged text of her singular communication to that effect. You could - had you helpfully chosen to do so - have simply provided that in isolation and informed me that the remainder of this request (the submissions and/or exchanges of opinion provided to the qualified person for consideration of that request, plus the metadata held in any recorded form by the department which relates to the entirety of my original request) was, in your opinion, subject to the engagement of other exemptions as stated. Is there a particular reason for the selective withholding of this eminent 'opinion' other than the fact it might be considered as being of a much more significant benefit to HM Treasury than those tens of thousands of UK citizens diligently attempting to establish the cold, hard truth about the careful and strategic selection of Sir (now Lord) Morse as opposed to an informed, knowledgeable, experienced - and properly independent - tax judge?

The first reference which HM Treasury made to the claimed engagement of section 36 was in the interim reply (to FOI2021/15854) dated 6th July 2021. This response made the claim that section 36(2)(b)(ii) of the FOI Act applied as HM Treasury believe disclosure would, or would be considered as likely, to inhibit the free and frank exchanges of views of the purposes of deliberation. On that basis, you extended the time for consideration of the public interest test using section 10(3). On 1st September 2021, HM Treasury communicated that they considered that the information requested also engaged additional sections 36(2)(b)(i) and 36(2)(c) - having taken 61 full working days to come to that conclusion, well beyond the guidelines laid out by the Information Commissioner's Office. It is notable - and once again self-evident - that the cause of this excessive delay was HM Treasury's own internal discussions and their concerted efforts to ensure that this information was withheld at any cost and with no regard to, or respect for, the statutory timescales laid out under the Freedom of Information Act.

You state that your search has identified a 'large number' of documents to consider, but fail to give any indication, or a sensible and realistic estimate, as to the actual volume concerned. Whilst it is understood that an authority cannot claim section 12 for the cost and effort associated with considering exemptions or redacting exempt information, it may apply section 14(1) where it can make a case that the amount of time required to review and prepare the information for disclosure would impose a grossly oppressive burden on the organisation - which is what you are claiming in this case.

The Information Commissioner's Office consider there to be a high threshold for refusing a request on such grounds, meaning that an authority is most likely to have a viable case where:
a) the requester has asked for a substantial volume of information AND
b) the authority has real concerns about potentially exempt information, which it will be able to substantiate if asked to do so by the ICO AND
c) any potentially exempt information cannot easily be isolated because it is scattered throughout the requested material.

In the event that a refusal should lead the requester to complain to the ICO, they would expect the authority to provide them with clear evidence to substantiate its claim that the request is grossly oppressive, with any requests which are referred to the Commissioner being considered on the individual circumstances of each case. It is reiterated by the ICO that "public authorities must keep in mind that meeting their underlying commitment to transparency and openness may involve absorbing a certain level of disruption and annoyance."

There are many other factors which would need to be duly considered should such a complaint be escalated to the ICO (assessing purpose and value, considering whether the purpose and value justifies the impact on the public authority, taking into account context and history, etc.) but if possible and in the spirit of compromise, I would like to help the authority avoid such an outcome.

Whilst the request for the full and unabridged text of the qualified person's opinion in the second point remains unchanged, I would be willing to narrow the scope (date range) of my original request for the remainder of this second section. Please therefore provide 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 between 6th July 2021 and 1st September 2021. On the continued assumption that it was Kemi Badenoch who provided the opinion, then all communications covering this request should be held within a single mailbox - unless you are likely to inform me that there are other forms of recorded information on other types of media which contain this data? Please kindly confirm - thank you.

With regard to the third point, which asked for all metadata held in any recorded form by the department which relates to my original request (reference FOI2021/09786), the subsequent request (FOI2021/15854), the next allocated request (reference FOI2021/22729) and the internal review (reference IR2021/25860), please restrict your search for metadata to dates between 7th June 2021 and 1st December 2021, which I respectfully calculate will indeed reduce the burden on the authority, and enable you to publicly demonstrate your stated commitment to transparency and openness - thank you.

Yours sincerely,

F Thompson

Dear Her Majesty's Treasury,

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

I am writing to request an internal review of Her Majesty's Treasury's handling of my FOI request 'Section 36 refusal - request to provide qualified person's name, opinion and associated metadata'.

Thank you for your reply of 28 February 2022.

You have raised a number of highly contentious points within this response, and made allegations which I believe are wholly unfounded. It is therefore my duty and responsibility to address these for the benefit of any future investigation by the Information Commissioner's Office, in its role as impartial adjudicator for requests made to authorities under the Freedom of Information Act. The length of this response is therefore reflective of the detail required to make that case.

Firstly, you claim that since 2020, I have made 10x FOI requests to HM Treasury in relation to the 2019 Loan Charge. That number is incorrect. For accuracy, I have listed the 6x requests I have actually made to HM Treasury since 2020 below in chronological order, and have included the respective status of each on the www.whatdotheyknow.com site as at today's date.

*19 May 2020 (FOI2020/15187)
Revised estimate of revenue to be generated from Loan Charge as a result of Covid-19
Information not held by HM Treasury

*10 March 2021 (FOI2021/09786)
Evidence of the decision-making process which led to the selection and appointment of Sir Amyas Morse
Refused by HM Treasury

*07 June 2021 (FOI2021/15856)
All incoming and outgoing messages from the Treasury smart phone which was supplied to Amyas Morse
Refused by HM Treasury

*04 November 2021 (FOI2021/25946)
Emails / recorded information from/to HM Treasury senior officials containing the search terms 'Morse' and/or 'Amyas' and/or 'LCAG' and/or 'Loan Charge Action Group'
Awaiting internal review response from HM Treasury

*04 November 2021 (FOI2021/25911)
Section 36 refusal - request to provide qualified person's name, opinion and associated metadata
Awaiting internal review response from HM Treasury (THIS FOI REQUEST)

*08 November 2021 (FOI2021/26072)
Information relating to the agreement/contract which covered the appointment/engagement of Sir (now Lord) Morse
Awaiting internal review response from HM Treasury

Your internal decision to issue updated reference numbers during the course of communication exchanges is quite clearly your prerogative; however, it does not detract from the fact that the source request stands unchanged - and, in the vast majority of instances, remains unanswered or simply refused. In effect, this is the crux of my own concern, as it is abundantly and transparently clear to any interested party (and there are many thousands spread across all sectors of society) that HM Treasury are deeply resistant to the disclosure of information on the subject of, or related in any way to, the controversial and retrospective government policy known as the Loan Charge.

Following intensive research, investigation and scrutiny over the last few years by members of parliamentary committees, constituent MPs, professional bodies, independent tax experts and the victims of this policy themselves, there is now a wealth of compelling evidence currently available in the public domain to both challenge and discredit the claims from government that this has supposedly been subject to what is laughably referred to by HM Treasury as an 'independent' review.

To try to add yet further weight and fact to that evidence, I have raised Freedom of Information requests using the constitutional rights available to me under the FOIA in an attempt to seek - in the public interest - the necessary answers to those serious and hugely important questions that the existence of that evidence prompts, and raises. It is noted that whenever this evidence is referenced within any requests which are submitted to HM Treasury using a public platform, there is invariably not a single comment made in return, nor a hint of acknowledgement that it even exists. This telling silence also extends to reports which have been compiled by the associated All-Party Parliamentary Group (comprised of 248 parliamentarians at the last available count) such as that published in June 2020 exposing the lack of independence in the aforementioned review (link below), but which has gone unanswered ever since. None of this is conjecture, or speculation - all this evidence contains plain, simple truths and cold, hard facts, but continues to be ignored and sidestepped by government, and HM Treasury as one of the primary instigators of this policy.

http://www.loanchargeappg.co.uk/wp-conte...

As a complete nobody - a lowly, unimportant, average worker-citizen of this country - I am not afforded the opportunity to sit in the same room as ministers or policymakers, senior officials or advisers, to debate this evidence and to ask for truthful and honest answers to those many questions. My only route, indeed my only option, is to try to utilise the Freedom of Information Act and to exercise the rights which that legislation bestows upon me. Other than the request I raised on 19 May 2020 (FOI2020/15187), every other I have made to HM Treasury has been on the subject of, or related to, the Morse review and the process which allowed him to be placed at the forefront of this exercise by government.

The dearth of information supplied by HM Treasury in response is testament to that entrenched and manifest resistance to disclosure; should any individual feel so inclined to read the content and discern the nature of those responses, they will be left in no doubt as to the profound significance of the information being withheld. By any means necessary, it would appear.

On the premise of your inaccurate calculation as to the number of requests I have made, you have informed me that you intend to apply an exemption under section 14(1) of the FOIA to prevent disclosure of any information under this request, and potentially all others I might submit in future. At this point, I would like to be granted the chance to reply to each element of your argument and to formulate a defence to that charge of "a disproportionate or unjustified level of disruption, irritation or distress."

Your first accusation, that I have made 10x FOI requests to HM Treasury in relation to the 2019 Loan Charge, has already been proven incorrect. What you visibly fail to share is the number of requests from an individual which are considered acceptable or appropriate by HM Treasury given the enormous public interest on the subject of the Loan Charge, as well as the attention and regard which continues to be focused on the flawed and heavily-biased conclusions arising from the Morse review - does such a figure exist?

Secondly, you unambiguously extract selective paragraphs relating to the use of section 14 which support your 'view' that this request (and others) should now be refused. There are, as you will be aware, many other paragraphs and clauses which would negate that prejudiced and partisan 'view'. Should this stance be maintained, it is almost certain that the Commissioner will be forced to adjudicate, despite the expanding workload which they already face as a result of the refusal by public authorities to properly comply with their obligations under the terms of the FOIA. On the face of it and contrary to the essence of the Freedom of Information legislation, it would seem to be a shameful dereliction of public duty and service to demonstrate such an overt unwillingness to be transparent and open to members of the public; yet it sadly appears to be a consistent modus operandi within HM Treasury at the present time on this subject.

To counter this view which you suggest is sufficient on its own to refuse disclosure, I would like to draw your own attention to those many others which would formulate a different, and support an opposite, conclusion. As mentioned in the most recent response I have made to HM Treasury, I have looked closely at the revised and updated guidance recently published by the ICO on section 14 of the FOIA. It bears repeating here that the FOIA gives individuals a greater right of access to official information in order to make bodies more transparent and accountable, and as such it is an important constitutional right. More significantly perhaps, the ICO state that the claimed engagement of section 14(1) is a 'high hurdle' for any public authority and that it is concerned with the nature of the request rather than any damage releasing the requested information may have - an important and notable distinction. If a larger public authority (such as HM Treasury with a confirmed FTE workforce of around 1300 people) is attempting to claim use of section 14, then it is not sufficient to argue that a request is burdensome because you have only allocated a small number of officers to handle requests.

The guidance published by the ICO makes it clear that section 14(1) can only be applied to the request itself and not the individual who submitted it. You cannot, therefore, refuse a request on the grounds that the requester themself is 'vexatious'. Similarly, you cannot refuse a new request solely on the basis that you have classified previous requests from the same individual as vexatious. You state that you have reviewed the impact of my recent FOI requests and consider that dealing with these has resulted in an unjustified level of disruption. No documented evidence or tangible commentary to support that claim is offered, or shared. Were HM Treasury to honestly redraw and impartially re-examine the lines of engagement with members of the public on the subject of the Loan Charge and the Morse review, this perceived level of disruption would immediately disappear. By not doing so, as is the case currently, then those members of the public who hold an interest in these subjects will persist in their attempts to seek information which reveals the truth behind this unjustified and ill-conceived policy.

It is of some topical note that the Post Office Scandal (also known as the Horizon IT Scandal) has been so conspicuous in the broadcast media over recent weeks, with the ongoing public inquiry expected to run for most of this year. The most senior officials at the Post Office, supported by its single shareholder that is the UK government, roundly and falsely condemned victims to financial ruin, or even worse, jail. Years later, it is established by the courts that the evidence used was unsound, the processes around prosecution fundamentally flawed, and that a complete (and avoidable) miscarriage of justice had taken place in plain sight of government and its wholly state-owned company, despite the continued warnings and red flags that had been raised by those representing and defending the SPMs. The parallels here are not lost on victims of the Loan Charge, which number in their tens of thousands and contrast with the 700+ SPMs who were targeted using deceitful, underhand methods and dishonest tactics and strategies by those responsible for those prosecutions and who themselves were shamefully and deliberately intent on evading any culpability, avoiding any comeback or taking any blame. Only now are victims being properly heard, and their lives being returned. History has a habit of often repeating itself - governments never seem to learn from their mistakes, as the Loan Charge controversy continues to prove.

Your original response of 02 December 2021 claimed my request was too wide and refused it under section 14(1). I made it clear in my reply to that refusal, in the spirit of compromise, that I wished to help the authority avoid an escalation to the Information Commissioner's Office, and narrowed the scope accordingly. I commented in that same reply that your search had identified a 'large number' of documents to consider, but you had failed to give any indication, or a sensible and realistic estimate, as to the actual volume concerned. In your most recent response, you once again fail to give any indication, or a sensible and realistic estimate, as to the actual volume concerned, and just repeat the same phrasing used previously. It would appear that you consider this statement quite sufficient when dealing with a nobody like me, but it is my understanding that the Commissioner will require actual evidence. It would also appear that now might be an appropriate point at which to repeat a phrase I have previously referenced myself (and as reiterated by the ICO in their guidance) - that "public authorities must keep in mind that meeting their underlying commitment to transparency and openness may involve absorbing a certain level of disruption and annoyance." Not at HM Treasury, apparently.

It is noted within the same ICO guidance that when section 14(1) is being claimed, context and history can indicate that the requester had a reasonable justification for making their request, and that because of this the public authority should accept more of a burden or detrimental impact than might otherwise be the case - weakening any argument that the request could be cast as vexatious. Even more important and significant (particularly in the context of this request) in that published guidance is the entry that states "where serious failings at the authority have been widely publicised by the media, giving the requester genuine grounds for concern about the organisation’s actions, the authority should be mindful to take into account the extent to which oversights on its own part might have contributed to that request being generated." Those oversights have been consistently shared and well documented by many others, not least the All-Party Parliamentary Group, different parliamentary committees, tax professionals and countless news journalists and media commentators; yet still, HM Treasury remain in denial.

I am encouraged that you made reference to the Dransfield case (the Information Commissioner vs Devon County Council & Dransfield [2012] UKUT440 (ACC), (28 January 2013), where purpose and public interest were both under scrutiny at the Upper Tribunal. You claim that when considering all the factors associated with my requests, you do not find a serious purpose to outweigh this impact.

I wonder where I should start.

On the assessment of value or serious purpose, the Upper Tribunal in Dransfield asked itself, “Does the request have a value or serious purpose in terms of there being an objective public interest in the information sought?” (paragraph 38). The public interest can encompass a wide range of values and principles relating to what is in the best interests of society, including, but not limited to:
holding public authorities to account for their performance; understanding their decisions; transparency; and ensuring justice.

It is clear from the Upper Tribunal’s findings in Dransfield that when considering value and serious purpose, the concern is with assessing whether there is public interest in disclosure. In many cases the value and purpose of the request is apparent from the:
nature of the information requested; context of the request; or history of the requester’s engagement with you.

In other cases it may be less clear what purpose would be served by disclosing the information, but as the Upper Tribunal in Dransfield observed:
“public authorities should be wary of jumping to conclusions about there being a lack of any value or serious purpose behind a request simply because it is not immediately self-evident.”

If the value or purpose of the request is not immediately obvious, an authority may take account of any comments the requester might have made about the purpose behind their request or any evidence they are willing to volunteer. The FOIA does not require a requester to give their reasons for making a request and they cannot insist they do.

I have tried - with very little success to date - to hold HM Treasury to account for the major part they have played in the Loan Charge, and the subsequent failings associated with the Morse review which were unquestionably influenced and engineered by the authority. I have provided evidence and fact along the way to substantiate these findings, all of which has been ignored, with my requests for information being consistently refused and the data withheld. One might consider that to help the public understand their decisions, HM Treasury would be only too willing to share the information being sought for the removal of any doubt in that arena; however, each request for anything which references the Loan Charge or the Morse review meets the same fate, with tenuous exemptions and spurious reasoning applied to ensure non-disclosure. No sane, reasonable or objective person could possibly claim that there is the slightest transparency to this process - it is alarmingly evident that government and HM Treasury wish to close this debate down, to suppress access to the truth and to stifle the possibility of any further change to this policy. The key element here is perhaps 'ensuring justice'. HM Treasury holds information which would expose not only the lack of a proper legal basis for the Loan Charge (as is evident from numerous letters and reports from the All-Party Parliamentary Group to ministers and senior officials, none of which have received a satisfactory or comprehensive answer) but also the complete lack of any independence to the stage-managed review which was assured a pre-determined outcome by the appointment of Lord Morse to lead the team (which itself was comprised entirely of HMT and HMRC senior staff members) by government. I will provide further evidence to support this later within this same submission.

The nature of the information requested, in and of itself, is enough of a clear indication to contradict the claim from HM Treasury that there is no serious purpose. Five of the six requests I have made to HM Treasury are directly linked to the appointment of Lord Morse to head the government's review, the concealed and unverified process which enabled that appointment and his communications, at the time and since, on the subject of that review. The context of these combined requests therefore requires no further explanation and no extended logic or reasoning - my focus with these five requests is precisely what I have summarised in that previous sentence. There is a firm, legitimate and widespread belief, based on information revealed in other FOI disclosures that the Morse review, claimed by government as an independent exercise, was anything but. This information has provided weight and substance to the conclusion which all those seeking justice have long expressed as fact - that there is a pronounced and plausible suspicion of wrongdoing by the authority, and that this evidence, held by HM Treasury, should be disclosed into the public domain to finally confirm what has been consistently alleged since the very date Morse was appointed.

My own approach to these Freedom of Information requests to HM Treasury is mirrored in the case of Marsh vs ICO (EA/2012/0064, 1 October 2012), where the appellant had asked Southwark council for information about the outcome of a review into the methodology for an increase in court costs (which had followed on from previous enquiries on the same subject). The council had refused the request as vexatious on the grounds that it was part of a long series of related, overlapping correspondence which was both obsessive and having the effect of harassing the council. The Tribunal considered the history of Mr Marsh’s contact with the council from his first request about the calculation of court costs in 2006, through to 2008 when the council broke off further discussions and on to 2011 and the refusal of his most recent request. They also took account of an Audit Commission investigation, instigated by Mr Marsh, which had found that there was scope for the council to improve its arrangements for managing court costs and liability orders. No different to the All-Party Parliamentary Group, made up of 248 MPs and peers, publishing a report into the clear lack of independence of the Morse review - to which no government response has ever been received.

In allowing the appeal they commented that: “We think it appropriate, and indeed necessary, for us to take into account this evidence because it reinforces our own view that the Central Enquiry was not vexatious. We have demonstrated how Mr Marsh pursued a legitimate concern on an issue of some significance, at first with a degree of co-operation from the council and, when that was removed, by dogged, forensic investigation of the information the council provided to him or to the public. It was a campaign that led the council’s own Overview and Security Committee to investigate in 2008 and some of its members to express concern about the way in which cost claims appeared to have been assessed. The issue under consideration was also a relatively complex one (exactly as this one happens to be) and provides further justification for different strands of enquiry when seen in context of previous requests having been pursued in parallel and investigated in some depth.” (paragraph 30).

All record of my engagement with HM Treasury is in the public domain and available for anyone to see. I have provided substantiated evidence to back up my requests for information, and have myself doggedly, forensically and repeatedly investigated the information which has been drip-fed by the authority, and which in turn has persuaded me to seek those in-depth answers and disclosures from HM Treasury on the referenced subject. I have been informed that the public interest is not served by these requests - try telling that to the tens of thousands of victims and their families who remain mired in this long-running debacle. I would suggest in the strongest possible terms that these 5x requests - all on or related to the subject of the Morse review - are entirely self-evident in their clear demonstration of value and serious purpose. For the authority to state otherwise is a plain and obvious attempt to shut this line of inquiry down, lest it eventually reveal further information which exposes the lengths and measures taken by senior officials within HM Treasury to silence the sizeable opposition to this policy and to withhold data which justifies and validates those accusations of a non-independent review from MPs, peers and the wider public. There is an obvious question to table in this situation - if the authority truly has nothing to hide, then why are they so intensely resistant to disclosure of any of the information which has been requested?

You conclude your response by stating your belief that "several different requesters are acting in concert as part of a campaign that disrupts the organisation", and that this "has caused a disproportionate and unjustified level of disruption, irritation or distress."

My requests have been made in concert with no-one. If you believe that others might be acting in such a manner, then you are surely obliged to produce evidence to that effect. What actual number or volume of requests constitute a "disproportionate and unjustified" amount of "disruption, irritation or distress"? It would appear more likely that it is the undisguised fear of disclosure which is causing the latter within HM Treasury, for I believe that I have provided both proportionate and justified reasoning behind every request I have made. If you continue to claim otherwise, then is there a published limit or threshold which is officially deemed 'acceptable'?

In their published guidance, the ICO confirm that it is important to recognise that campaigns are not in themselves vexatious. The existence of a campaign may be the result of a legitimate public concern about an issue and so reflect a weighty public interest in the disclosure of the information. The subjects of the Loan Charge and the associated Morse review have prompted unprecedented numbers of MPs, peers, tax and legal experts, journalists and media commentators to speak out in opposition - there could be no higher level of 'legitimate public concern' on display, or 'weighty public interest' in the disclosure of the information sought.

The ICO proceed to explain that it is also important to bear in mind that sometimes a large number of individuals will independently ask for information on the same subject because an issue is of media or local interest, and that an authority should therefore rule this explanation out before arriving at the conclusion that the requesters are acting in concert or as part of a campaign. It is loosely estimated by government that 50,000 people and their extended families are impacted by this legislation and these (unproven in law) demands - it would be reasonable to suggest that the actual figure is therefore closer to 200,000 people. All of those people have access to, and the constitutional right, to submit a Freedom of Information request to HM Treasury or any other public authority. Moreover, at what point, or at what number, is the public interest considered positively 'engaged'? How many more people need to commit suicide as a result of this policy - are eight confirmed cases not quite enough to tip that balance?

In Thackeray vs ICO, (EA/2011/0082 18 May 2012), the Tribunal unanimously upheld the complainant’s appeal and observed that:
“The dogged pursuit of an investigation should not lightly be characterised as an obsessive campaign of harassment. It is inevitable that, in some circumstances, information disclosed in response to one request will generate a further request, designed to pursue a particular aspect of the matter in which the requester in interested. We would not like to see section 14 being used to prevent a requester, who has submitted a general request, then narrowing the focus of a second request in order to pursue a particular line of enquiry suggested by the disclosure made under the first request” (paragraph 26).

No reasonable person could fail to agree.

Earlier in this message, I made reference to further evidence which reveals the careful stage-management within HM Treasury of the scope, terms and conditions, timing and potential candidates for what became the 'Morse' review. In early September 2019, the Prime Minister (maintaining an earlier promise he had made during the leadership contest) announced a review of the Loan Charge, saying, "It is a very, very difficult issue and what I have undertaken to do is have a thorough going review."

At the time of this announcement, loud and vociferous calls were made by MPs and opponents of this policy for this review to be led by an experienced and knowledgeable - and truly independent - tax judge, as that was considered the only feasible solution to the unravelling of complex tax and legal issues which needed to be scrutinised, investigated and properly analysed. The government instead appointed Sir Amyas Morse. On 21 October 2021, the Loan Charge Action Group wrote a 12-page letter to Lord Morse, titled 'Loan Charge Review in light of evidence not known at the time' (http://www.hmrcloancharge.info/wp-conten...). This letter summarised the flaws in the review's conclusions and asked Lord Morse to respond to those serious concerns. To date, no reply has been received despite a follow-up on 04 February 2022 (http://www.hmrcloancharge.info/wp-conten...) asking once again for a response to that letter. As a recently appointed parliamentary peer, now subject to the House of Lords Code of Conduct and compelled to observe the seven general principles of conduct identified by the Committee on Standards in Public Life, his lack of a response, or even a respectful acknowledgement of receipt, is something which will come to define his role in that review and fittingly exposes the clear and obvious lack of independence which he brought to the position.

A recent Freedom of Information response (to request FOI2021/27262 - https://www.whatdotheyknow.com/request/8...) by HM Revenue & Customs included a 6x page memorandum from HM Treasury, dated 27 August 2019 and headed 'Loan Charge Review'. The author starts their introductory comments "The Prime Minister has committed to a ‘proper independent review’ of the disguised remuneration Loan Charge.", but follows this with "This submission sets out a range of options for a review and seeks a steer on the main design choices: the scope, independence, and timing." Note use of the revealing word 'choice' on the subject of 'independence'. An oxymoron to truly savour.

The author continues - "The central choice will be between satisfying campaigners opposed to the Loan Charge, and keeping the policy, including its revenue, intact." Would any reasonable person conclude that an honest, legitimate and properly independent review of a controversial government policy could possibly be 'steered' beforehand to ensure that the choice of 'keeping the policy' remained intact? What truly independent reviewer would ever accept such limit and constraint? Perhaps an experienced tax judge would have insisted upon such autonomy - which is probably why that option was not 'chosen'.

Further entries from the same introduction section of the memorandum include:
"Those pressing for a review will very strongly criticise anything that does not look like it will repeal the Loan Charge", "We would strongly recommend a review which aims to protect the policy as much as possible", "We are never going to satisfy the campaigners without a full reversal, but we might show some MPs we have taken concerns seriously, and give them enough of a reason to change their views", "We will also need to find someone to lead the review within days and any individual will face hostile personal criticism if they do not recommend reversing the charge", "We propose adapting this into a note to send to No 10 reflecting your steers". There's that 'steer' word again, on what is still foolhardily claimed as an 'independent' review.

The section headed 'overall scope' and states:
"You asked for advice on how to mitigate the risks around the review", "The most fundamental question is whether to review the Loan Charge policy itself", "At official level, our view is that we recommend ruling out a repeal from the start for fiscal, practical, and wider reputational reasons", "As covered in detail later, any review that looks at the merits of the entire policy (as opposed to some elements of it) will take longer, potentially require primary legislation as a result, and strengthen the APPG’s case for a pause in settlements and collections", "Reversing or pausing the Charge would create parliamentary difficulties, and definitely require primary legislation", " it will demonstrate that non-compliance and campaigning can be successful, including to campaigners against off-payroll reform". So much for that false, and perverse claim to 'independence'.

Another section, headed 'scope and MP reaction':
"However, we understand that this does not fully honour the spirit of the Prime Minister’s commitment, and a sizeable number of MPs’ expectations, and we have discussed this issue with the FST", "He supports a short, independent review “of the policy”, so that the option of repealing it is implicitly in scope. His view is that anything short of that will lay us open to the charge of not having done the review fairly, and it would not to draw a line under the issue with MPs as a result".
It certainly has not drawn that line and quite justifiably has not done so, given the fact that well over two years after the review's conclusion, the issue remains as contentious and disputed as ever in the public domain.

I could continue ad nauseam, but it is perhaps better to let the author have the last word on this section:
"At official level, we recommend not including the Loan Charge policy itself in the scope of the review, but recognise this may not go far enough for MPs. Do you want the repeal of the Loan Charge to be in scope?" For the benefit of the Information Commissioner - should this be necessary to share at any stage - the Loan Charge was never allowed to be 'independently' reviewed, hence the 5x related requests I have made to reveal that important, additional fact and evidence, and to determine the actual truth in this matter - which is a far cry from what we continue to be told by HM Treasury - "A longer, judicial style review does not meet your aims and we have therefore ruled it out". Those 'aims' would clearly include a notable lack of any independence from the 'selected' reviewer.

To corroborate this evidence, other FOI requests have revealed and echoed similarly worded exchanges at senior levels within HM Treasury and HM Revenue & Customs.

FOI2021/25439

Beth Russell, HMT Director General Tax and Welfare, in an email dated 08 September 2019 to senior colleagues in HM Treasury and HM Revenue & Customs, wrote "A few thoughts below on the handling plan. Also cc’ing HMRC seniors." The email continues -
"I think it is a good idea for FST to write to MPs (or at least those who have been interested). In particular, good in that to head off criticisms that LCAG will make of the review in particular why we have not suspended the charge while the review is being undertaken, why we are focusing it on individuals etc."
"Beyond that, i don’t think FST or other ministers should meet any stakeholders to explain further or during the period of the review (with ref to the last bullet of stakeholder section in the note)."
"Strongly agree we need to ensure No10, whips, CX’s PPS etc all have good briefing, particularly on the issues LCAG are likely to complain about after the announcement."
"On press handling, I’m not the expert but I would have thought we do want to contact those journalists who have been particularly interested in this eg. REDACTED, to explain the review. And again, try and head off the inevitable LCAG criticisms on suspension etc."
"I also paused on FST doing media. Not sure that’s a good idea."
"The biggest risk on Tuesday is LCAG coming out and complaining about the review not being wide enough and the charge not being suspended. Indeed we know they will so key is being on the front foot on rebutting/explaining why."
"We shouldn’t sound too defensive on these points – we’ve got good reasoning why we are doing what we are doing and the review itself is a major concession".

Name redacted, HMT (Strategy, Planning and Budget Projects), in an email dated 23 August 2019 to senior colleagues in HM Treasury and HM Revenue & Customs, wrote "Here is a skeleton of the advice on what a review of the Loan Charge could look like." The email continues -
"Separately, as discussed, the Chancellor has asked us to work up, on a contingency basis, what the minimum form of an independent review would look like, in case the PM wants to proceed with one. Welcome your views on what this should cover, but at the minimum it should set out something that that can reasonably be described as an independent review, but that minimises the spending/legislative/other risks that a review creates."
"You have options for what a review could potentially look like"
"The key question is what you would want to achieve with a review, and what it is practically possible for it to achieve."
"The Prime Minister committed to a “proper, independent review”. He also signed a letter that implicitly said that such a review went beyond what the government did with the previous Section 95 report."
"We recognise that you might want to try to meet the PM’s commitment in some form, as a way of demonstrating that he’s meeting his promises, and dampening criticism of the Loan Charge."
"You will therefore face strong criticism of anything that falls short of a full review of the entire policy, lasting months, led by an independent judge, and including a pause in the Loan Charge created by primary legislation."
"Our conclusion is that our arguments in support of a short review will only get us so far and you will need to accept that the APPG and LCAG will strongly dispute in the press that we have met the PM’s commitment."
"It would explicitly not look at whether there should be a Loan Charge. This will need to be made clear from the start to avoid raising expectations that the Loan Charge will be reversed."
"Anything that falls short of a full review, potentially leading to the repeal of the Loan Charge, will be criticised by MPs and in the press. You would also face renewed criticism in October when the review reports."
"We are not suggesting that you hold a review. A larger one puts £3.4bn at risk... A smaller one would probably still be criticised as falling short of the PM’s commitment."

FOI2019/02052

Name redacted, HMT Senior Policy Advisor - Specialist Personal Tax, Personal Tax Team, PTWP, in emails dated 09 September 2019 to senior colleagues in HM Treasury and HM Revenue & Customs, wrote "You previously cleared a version of the terms of reference which limited the scope to individuals who entered schemes directly, and explicitly ruled out employers from the scope of the review."
" He (Morse) understood the rationale for restricting the review to individuals – and that this is where most of the criticism lies – but on a point of principle didn’t want the scope of the review to explicitly rule out covering employers so he has the discretion to go wider if necessary. Officials agreed a compromise wording with Sir Amyas which makes clear (BR) that the focus of the review is to consider the impact on individuals, but does not explicitly rule employers out of scope." (BR)
"...officials believe he (Morse) wants the discretion to look at things broadly but in practice, will be guided by the focus of the review on individuals." (BR)
"Discussions today with Sir Amyas show he has a 'sensible' approach to the review." (BR)
"Thanks all, happy to go with simply contractors and no further detail in the ToRs as we have a clear definition we could point to if needed in future communications with the reviewer about scope. If concerns are raised about this definition, I would like to flag to seniors that the alternative option is just to say individuals, but as this definition is less clear there is more scope for the reviewer to look at transfer of liability from employers etc."
"In terms of handling the concerns of MPs and campaigners, the updated scope would be less subject to the criticism that we are excluding worthy groups such as individuals who claim they were forced into schemes by their employers."

(BR) - also includes suggested wording by Beth Russell (in her responses to the above on the same date)

Suzy Kantor, HMT Deputy Director Personal Tax, in an email dated 09 September 2019 to senior colleagues in HM Treasury and HM Revenue & Customs, wrote "He (Morse) didn't want to explicitly limit the terms of reference to take employers out of scope but was content with the focus on individuals and the likely impact on the scope of recommendations." The email continues -
"I was relatively reassured - would be interested in Carol's views - that in reality, he'll stay focussed on individuals and not stray further."

There are many more examples from senior officials' comments within both HM Treasury and HM Revenue & Customs which reinforce the exact same message - that despite the Prime Minister's public commitment to a ‘proper independent review’, the engineered reality of that review was altogether different. It was deliberately narrowed in scope to implicitly exclude employers, which was made transparently clear to Morse in those meetings which took place prior to the work commencing. Any potential for a full repeal of the policy by the reviewer was entirely ruled out - again, this was made clear to Morse in those same meetings. He was also made aware that any recommendations he might consider appropriate would be limited in scope due to the artificially confined nature of the terms of reference, all of which had been discussed in minute detail at senior level in HM Treasury and HM Revenue & Customs to ensure, with absolute confidence, that any proposed changes which Morse could potentially make would only have a minimum effect on the policy as it stood. Those same officials were intent on maintaining focus only on those individuals being targeted by government - again, shutting the door on any party being held liable other than the individual and ignoring the Supreme Court ruling from 2017 (in Rangers) which held that the employer was liable for any tax deemed to be due.

Suzy Kantor's communication to senior colleagues that Morse would not 'stray further' was proved 'reassuringly' correct and duly protected the vested interests of those defending the retrospective policy in HM Treasury and HM Revenue & Customs. The wealth, indeed the overload of evidence which is available can lead to only one conclusion - that it was not, in any sense or meaning of the word, an 'independent' review. When the Director General Tax and Welfare at HM Treasury states that "the review itself is a major concession", one can form a clear sense of the indignation and annoyance felt by those senior officials at being forced to face, and submit to, such an unexpected affront to their 'authority', following concerted pressure from Members of Parliament so vehemently opposed to their punishment-driven policy.

It is commonly quoted that the first casualty in any war is the truth. I would not hesitate to state that in the war of words which has ensued over the Loan Charge and the Morse review, truth has been institutionally set aside and covered up by HM Treasury with what would appear to be an alarming and unacceptable regularity. Any reasonable, objective or considered request on these subjects is consistently withheld because the truth would further undermine the (already overstretched) credulity of HM Treasury's claims that this review was afforded any kind of independence. Continuing to maintain the same, tired 'line' now just looks desperate - but it continues nonetheless.

There is still an opportunity for HM Treasury to alter position and change tack by disclosing the information I have requested. Should those responsible for making that decision choose to deny this legitimate request and continue to withhold in order to prevent the truth which this information holds from being exposed, and for the authority to be held accountable, then this will be taken to the Information Commissioner's Office on appeal.

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

Yours faithfully,

F Thompson