Use of the phrase 'the elephant in the room' by HMRC within evidence provided as a response to FOI2020/01810

F Thompson made this Freedom of Information request to HM Revenue and Customs

This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was refused by HM Revenue and Customs.

Dear HM Revenue and Customs,

HMRC's Freedom of Information Team provided a response to a recent FOI request (FOI2020/01810) on 02 November. Within this response, a series of internal email exchanges were disclosed as an annex to the summary letter, which was headed Freedom of Information Act 2000 (FOIA) and explained HMRC's interpretation of the aforementioned request.

One of these emails (dated 30 September with a timestamp of 16:49) was sent from the Solicitor’s Office and Legal Services (SOLS) - the sender's name has been redacted. The subject line was 'Sensitive FOI's regarding HMRC contractors' and the recipients of this email were as follows:

Jim Harra (First Permanent Secretary and Chief Executive of HM Revenue and Customs)
Ruth Stanier (Director General Customer Strategy and Tax Design)
Penny Ciniewicz (Director General Customer Compliance)
Justin Holliday (Chief Finance Officer and Tax Assurance Commissioner)
Daljit Rehal (Chief Digital and Information Officer)
Alan Evans (General Counsel and Solicitor)

Further HMRC staff were copied into this same internal communication, as follows:

Sonia Agnew (CDIO Chief Operating Office)
Mary Aiston (Director of Counter Avoidance)
Nicole Newbury (Director of Wealthy & Mid-sized Business Compliance)
Rob Woodstock (Chief Commercial Officer)
Carol Bristow (Director of Individuals Policy Directorate)
Jackie McGeehan (Deputy Director for Income Tax Policy)
Mark Wilson (Director of Legal Operations and Business Transformation)
Zoe Hope (Head of Litigation and Independent Statutory Reviews)

The names of three additional HMRC staff, also copied into this email, have been redacted.

Within the body of this specific email, a paragraph was included which stated:

"Whilst we could respond to these requests with reference to just contingent labour it does still leave an elephant in the room which needs to be addressed and which would lead to further questions. To do so would also be inconsistent with how we have responded to previous questions."

As this information has now been disclosed under the auspices of the Freedom of Information Act 2000, it is reasonable to conclude that the content has been evaluated by HMRC as fully compliant with the provisions in said Act, and should therefore be available in the public domain for scrutiny, consideration and review by the general populace.

Apropos the above, please provide a clear, unambiguous and factual explanation of precisely what 'the elephant in the room' refers to in the specific context of this paragraph and email. Please also explain, and provide in full, those 'further questions' which would be raised as a result of the 'elephant in the room' being addressed. Additionally, please explain, in detail and in full, why addressing the 'elephant in the room' would be inconsistent with how you have responded to previous questions on this subject.

For the avoidance of any doubt and with the sole intention of assisting you with this exercise, I draw your attention to the meaning of the phrase 'elephant in the room' as defined on Wikipedia -

'The expression "elephant in the room" (usually "the elephant in the room") or "the elephant in the living room" is a metaphorical idiom in English for an important or enormous topic, question, or controversial issue that is obvious or that everyone knows about but no one mentions or wants to discuss because it makes at least some of them uncomfortable or is personally, socially, or politically embarrassing, controversial, inflammatory, or dangerous.'

I trust that, as four of the five main recipients are HMRC Commissioners and members of the Executive Committee, which duly oversees and assures all of HMRC’s work and is responsible for setting and delivering strategy, they will all have a clear and monosemous understanding of the explicit, intended meaning of this phrase by the sender, the reason for (and material significance of) its reference and the context within which it has been used.

I trust also that, based on the information which has already been revealed in response to FOI2020/01810, HMRC will now be able to comply with this follow-up request by providing a truthful, transparent and evidential response which establishes, with sufficient clarity and substance, exactly what is meant by 'the elephant in the room' within the previously referenced email.

Yours faithfully,

F Thompson

no-reply@hmrc.ecase.gsi.gov.uk on behalf of FOI Team, HM Revenue and Customs

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Dear Mr Thompson,

We are writing in response to your request for information, received 1
December.

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 'Use of the phrase 'the elephant in the room' by HMRC within evidence provided as a response to FOI2020/01810'.

Thank you for your previous reply.

Firstly, I note that the date applied to your official response was 8th December, yet was not communicated and delivered to the WhatDoTheyKnow platform until 14th December - could you kindly explain the reason for this unexplained and unexpected delay?

It is obvious, from the tone, nature and content of your reply, that you do not wish to reveal this information and have attempted to use your own preferred interpretation of key sections and clauses from the FOIA to dissuade anyone from pursuing this further. It begs serious inquiry as to the importance and significance you must place, particularly now it is in the public domain, on the phrase 'the elephant in the room' - when you are seemingly intent on the use of such spurious reasoning to refuse answering what is in essence a very simple and straightforward series of questions directly related to your usage of this metaphorical idiom?

On the basis of this initial refusal, and the justification I consider this request to have in the public interest (given the many thousands of victims currently suffering at the hands of HMRC and their relentless pursuit of unproven debt via the retrospective Loan Charge), I now formally request an internal review.

If I may, I would like to reference those statements you have made in reply and issue a response to each, in order to challenge this decision and ask that you re-evaluate your refusal to answer those questions tabled in the original request as part of this internal review.

Statement 1:
Section 1 of the FOIA gives applicants the right of access to recorded information held by a public authority.

Response 1:
That is not what the FOIA states - it clearly indicates that any person making a request for information to a public authority is entitled -
(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him.

NOTHING in this section of the FOIA refers to 'recorded' information. You 'hold' this information, because every single recipient of that email (including the highest ranking officials within HMRC) know precisely what that phrase means, the context of its use and the exact subject to which it refers. I am requesting a factual explanation of a term used by your Solicitor's Office and Legal Service department, in an internal communication to those senior officials, in direct relation to the subject which is referenced and described as 'the elephant in the room'. There is clearly and obviously an available answer 'held' by all those senior HMRC officials who received that email - in this circumstance, one suggestion might be to ask Mr. Harra directly, given the fact he has personally furnished you with a multitude of lines and answers to all manner of FOI requests in recent months, so perhaps you could expedite a response to this one by simply asking him to explain for you what is meant by 'the elephant in the room' and to share his apparent honesty in public office with us all?

Also, is it standard practice for the Chief Executive of any governmental department to be so closely involved in the response to a Freedom of Information request? Does not this fact itself strongly imply that the senior officials in HMRC, at the very highest level, wish to micro-manage any Loan Charge-related response to members of the public? If, as HMRC so industriously and publicly claim, the law has been so patently transparent and clear since 2010, why would he need to do this?

To ensure a resultant clarity with any answer which I trust WILL be provided, I repeat the original questions and inquiries for the benefit of Mr. Harra and his senior colleagues:
Apropos the above, please provide a clear, unambiguous and factual explanation of precisely what 'the elephant in the room' refers to in the specific context of this paragraph and email. Please also explain, and provide in full, those 'further questions' which would be raised as a result of the 'elephant in the room' being addressed. Additionally, please explain, in detail and in full, why addressing the 'elephant in the room' would be inconsistent with how you have responded to previous questions on this subject.

Statement 2:
Requests requiring explanation or clarification are not requests for recorded information and therefore do not fall within scope of the FOIA.

Response 2:
I am unaware of any section or clause within the FOIA which substantiates that view and note that, as part of your chosen strategy in the handling of this request, you have made no reference to exactly which section/clause of the FOIA supposedly lists that exclusion - please therefore provide the relevant section/clause which explicitly demonstrates that to be the case.

Statement 3:
Where requested information contains the personal information of officials to a degree which is contrary to their expectation of privacy, this has been withheld under section 40(2) FOIA.

Response 3:
I have quite obviously not asked you to identify the official who sent the mail from SOLS and have no intention of doing so - thus the reference to any exemption under section 40(2) is entirely otiose and irrelevant in the context of this request. I am not asking for ANYTHING which would identify an individual - I am asking for precisely, specifically and exactly what the 'elephant in the room' refers to. The phrase is not used in any way other than to refer to an item, or fact, which you apparently wish to keep concealed.

Additionally, with reference to the annex you provided, containing an email from Mr. Harra and an attached document to which he has applied two separate comments, as detailed below:
1. 'directly managed by HMRC but paid through an agency' - which was subsequently removed from the FOI responses referenced by the SOLS team member. Mr. Harra states 'What precisely does this mean? It implies we have a line management relationship with these people but pay them through an agency. Please clarify'.

2. 'The remainder of these contractors are brought in via fully contracted out professional service provision. In these circumstances, the arrangement is between HMRC and the supplier. The contractors then have their own arrangements with and are directly managed by the supplier'. The first sentence was altered in the final version to 'There are other contractors who provide services as part of fully contracted out professional service provisions'. Mr. Harra states ' Again, I am not sure what this means. Surely if we contract with a supplier to provide a professional service, then the people they deploy to provide that service cannot be described as contractors of ours?'

How were those proposed revisions discussed and agreed after Mr. Harra's request for the sender to 'clarify' and answer the questions he posed? Please can you supply evidence of any exchanges and communications which provide conclusive proof that these questions were subsequently discussed, answered and agreed?

It is indeed most notable that Mr. Harra's suggested revisions and 'corrections' were ALL accepted for those final versions of responses to two separate FOI requests (FOI2020/01615 and FOI2020/01613) which were used by the responsible person within the drafting team (as evidenced in the email from the SOLS member to Mr. Harra and his senior officials on 01 October at 09:53) in order to 'ensure consistency' with a number of parliamentary questions the department had received on this issue.

It appears as no coincidence that this communication to Mr. Harra on the matter of 'consistency' is a clear and manifest attempt to align and stage-manage departmental messaging and deliberately avoid addressing the 'elephant in the room', which (to quote the email from the SOLS member to Mr. Harra and his senior officials the previous day at 16:49) 'would lead to further questions. To do so would also be INCONSISTENT with how we have responded to previous questions'.

Of course it would, hence the need once again for HMRC to manipulate the message.

To reinforce the case for this request to be properly answered, I also refer to statements made within the body of your response to FOI2020/01810 on 2nd November, and my comments thereon.

SOLS - 'This technicality is generally ignored by those seeking to exploit this issue but is something which I have always tried to define in correspondence as it is on this basis that we provide that we have never used these schemes'.

This is a repetitive mantra and one which you seem to use with alarming frequency, despite its lack of relevance to the issue at hand - the accusation is not that HMRC have 'used these schemes' themselves, but that HMRC knew full well that numerous contractors, engaged as contingent labour through the CCF service providers and suppliers, along with those engaged through external service providers, were working on HMRC/RCDTS systems and using so-called 'DR' schemes over many, many years.

Jim Harra - 'I am conscious that while we have included a lot of explanation, the recipient is likely to publish an edited extract, aimed at showing the department in a bad light. Do we have plans to prevent this and tell the full story ourselves?'

Mr. Harra's first sentence illustrates precisely the approach which HMRC take themselves when publishing any (mis)information about the Loan Charge, which is all designed to distort fact, evade truth, and to unrelentingly 'control the media narrative' in order to place the victims themselves in a bad light. His second sentence speaks volumes - if only HMRC WOULD tell the FULL story themselves (and reveal truths they already know are evident within the organisation), this scandal would (very swiftly) be over.

It is also clear that you seem to require your Solicitor's Office and Legal Service department, containing many hundreds of people (including lawyers, tax and operational delivery professionals, advocates, paralegals and support teams at their disposal), to seek approval from the CEO of HMRC in order to craft, manipulate and publish a reply to an FOI request asking for emails that contain the words 'disguised remuneration'. Again, what must you want to hide in the face of such simple questions? These are not honest Freedom of Information responses - these are the kinds of defences utilised and deployed by an organisation with something serious to conceal - otherwise, you would provide the information being requested without the slightest concern to your stated 'position' on the Loan Charge.

Further to the above, these contrived replies, drafted by selected members of a team within SOLS, and with the approach and disclosure of the content formally approved by the most senior ranks within HMRC (as shown in the FOI2020/01810 email trails) include a comment that 'contractors are required to use umbrella providers approved by the Financial Conduct Authority'. This is not, under any circumstances, true. Umbrellas are entirely unregulated, so this is either a lamentable mistake (for which an immediate apology should be issued) or a blatant lie, which, at best, should call into question the capabilities of the SOLS member responsible for the draft, or at worst, considered a serious breach of the Civil Service Code, with its core values of integrity, honesty, objectivity and impartiality patently set aside for the purposes of protecting your own interests and refusing to acknowledge your own failings.

Another section from the SOLS email includes a statement 'those for whom HMRC is responsible for ensuring tax compliance under the public sector reforms and those for which they are not'. By definition, the use of these words asserts that HMRC acknowledges it definitely HAS a responsibility for some contract workers, whilst claiming for others it does not. This is followed by the paragraph which references the 'elephant in the room', which you have still not answered - one could readily speculate on the array of possibilities, but the public would much prefer the actual truth, hard and difficult as that always appears to be for HMRC to reveal.

Furthermore, the press briefing included in the annex to FOI2020/01810 states 'Until November 2019, HMRC had not been aware of any contingent workers engaged by either it or RCDTS who were believed to be scheme users'.

This is yet another clear example of deliberate misinformation (or alternatively, a lie, as some might choose to label it), as FOI2020/01832 states 'in November 2018, HMRC was aware of five individuals who had a history of using DR schemes and providing services to HMRC. HMRC records did not show these individuals to have utilised a scheme while services were provided to the department'.

Of course, as we would all expect after a statement so far removed from reality, it was later found that two of those five individuals HAD used DR schemes whilst concurrently working for the department. How can anyone possibly have any faith or trust in your 'evidence' when it is consistently misleading and plainly inaccurate?

We are frequently informed in any exchanges, both public and private, that 'HMRC as engager' and 'HMRC as Tax Authority' are separate entities, and that due to taxpayer confidentiality, no information can be evidenced and released by the latter which would breach that confidence to the former. Yet remarkably, Justin Holliday, HMRC's Chief Finance Officer writes to Panny Ciniewicz, Ruth Stanier and Mary Aiston on 28 November 2019 (as evidenced once again in FOI2020/01810) and clearly confirms that 'HMRC as engager has been alerted by HMRC as Tax Authority that a number of current contractors in HMRC and RCDTS are or appear to be current users of DR schemes' - and duly attached 'reactive press lines' for information and comment. As we always suspected (and this email confirms), it appears the two bodies ARE able to communicate after all, despite the persistent and misleading claims to the contrary. Where does this dishonesty end?

Your ubiquitous template responses to Freedom of Information requests, parliamentary inquiries, letters from MPs and parliamentary committees, alongside questions from numerous other parties, consistently claim it is possible a contractor might have used a DR scheme without HMRC's knowledge. You state in these template responses that 'all contracts with agencies supplying contractors to HMRC include standard tax compliance clauses and that THIS IS FOR BOTH FULLY CONTRACTED OUT PROVISION AND CONTINGENT LABOUR. There is also clear guidance around tax compliance and what checks will be completed on ANYBODY supplying labour to HMRC'.

It is perhaps what you deliberately exclude and fail to mention in any of these responses which is key to this whole, continuous raft of disingenuous and duplicitous rhetoric. There are, as you will know, published documents which govern and control the contractual obligations and responsibilities of HMRC, their chosen service provider(s) and the range of suppliers and agencies which support their ongoing need for provision and contingent labour. Scrutiny of these documents provides clear and unambiguous evidence that these contracts provide the terms and conditions specific to tax compliance which are applicable to the entire supply chain for contingent labour. They include numerous, detailed provisions, sections and clauses which identify the accountable entity within that supply chain, and that all records and information (confidential or otherwise) are able to be released to to the British Parliament and any committees of the British Parliament on request. All government departments and their arm’s length bodies which employ appointees ‘off payroll’ for more than six months have to report to the Treasury about any financial arrangement, to make sure it is transparent and that the appointee(s) in question are paying the right amount of tax and National Insurance. Until July 2019, there were two Procurement Policy Notes issued by the Cabinet Office containing the specific rules which were to be followed by ALL government departments. These provide departments, their agencies and NDPBs with a guide to help them seek ASSURANCE about the tax arrangements of their contractors. It also provides illustrative contractual clauses allowing that assurance to be sought, which departments should adapt as appropriate BEFORE including in contracts they let.

It is possible, perhaps even probable, that these legally-binding government documents constitute something of a dilemma for HMRC in the face of the Loan Charge, their long-term use of contractors now subject to that retrospective legislation and the bitter controversy and dispute which has accompanied its introduction.

On that closing note, I hereby reiterate my request for HMRC, without hesitation, deviation or delay, to clearly explain exactly what is meant by the 'elephant in the room' within the body of the referenced email and to use the platform of this internal review to finally disclose the truth regarding their use of this specific phrase in the context of the relevant (and now public) internal communication.

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

Yours faithfully,

F Thompson

FOI Team, HM Revenue and Customs

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Dear F. Thompson,

We are writing in response to your request for information, received 6
February.

Yours sincerely,

HMRC Freedom of Information Team

Dear FOI Team,

I disappointedly acknowledge your steadfast refusal to provide the requested information and your continued subterfuge and intransigence in the face of simple, straightforward questions.

This appears to be a worrying and unedifying pattern for members of the public as they strive to seek information from government bodies, as evidenced by a number of recent press articles on the subject. I reliably assume that you will have been made fully aware of the surrounding controversies yourselves given the fact that you are the team responsible for issuing those responses on behalf of HMRC, and therefore perceived as an instrumental and strategic part of the overall problem.

https://www.opendemocracy.net/en/opendem...

https://www.bbc.co.uk/news/uk-55988252

Not only do you reject and dismiss this particular request out of hand (no doubt on instruction from senior officials), you completely ignore any other question which was included in the call for this internal review - examples below.

Firstly, I note that the date applied to your official response was 8th December, yet was not communicated and delivered to the WhatDoTheyKnow platform until 14th December - could you kindly explain the reason for this unexplained and unexpected delay? NOT ANSWERED

Also, is it standard practice for the Chief Executive of any governmental department to be so closely involved in the response to a Freedom of Information request? Does not this fact itself strongly imply that the senior officials in HMRC, at the very highest level, wish to micro-manage any Loan Charge-related response to members of the public? If, as HMRC so industriously and publicly claim, the law has been so patently transparent and clear since 2010, why would he need to do this? NOT ANSWERED

How were those proposed revisions discussed and agreed after Mr. Harra's request for the sender to 'clarify' and answer the questions he posed? Please can you supply evidence of any exchanges and communications which provide conclusive proof that these questions were subsequently discussed, answered and agreed? NOT ANSWERED

You provide a link to the Freedom of Information Guide, from which you extract one specific paragraph, whilst carefully avoiding drawing any attention to other paragraphs within the exact same document. For your benefit, and in case you've inadvertently overlooked them yourselves, let me point out some of those -

Under the Act, if you have information in your records that answers the question you should provide it in response to the request. You are not required to answer a question if you do not already have the relevant information in recorded form.

In practice this can be a difficult area for public authorities. Many of those who ask questions just want a simple answer, not all the recorded information you hold. It can be frustrating for applicants to receive a formal response under the Act stating that you hold no recorded information, when this doesn’t answer their simple question. However, requesters do have a right to all the relevant recorded information you hold, and some may be equally frustrated if you take a less formal approach and fail to provide recorded information.

You should also remember that even though the Act requires you to provide recorded information, THIS DOESN'T PREVENT YOU PROVIDING ANSWERS OR EXPLANATIONS AS WELL, AS A MATTER OF NORMAL CUSTOMER SERVICE.

The Information Commissioner’s Office (ICO) recognises that some public authorities may initially respond to questions informally, but we will expect you to consider your obligations under the Act as soon as it becomes clear that the applicant is dissatisfied with this approach. Ultimately, if there is a complaint to the ICO, the Commissioner will make her decision based on whether recorded information is held and has been provided.

Before you decide that you don’t hold any recorded information, you should make sure that you have carried out adequate and properly directed searches, and that you have convincing reasons for concluding that no recorded information is held. If an applicant complains to the ICO that you haven’t identified all the information you hold, we will consider the scope, quality and thoroughness of your searches and test the strength of your reasoning and conclusions.

"Unnecessary secrecy in government leads to arrogance in governance and defective decision-making." - Your Right to Know

On that salient and profound note, taken from a highlighted entry on the ICO's own website, I will mark this request as 'refused'. However, please be assured that all content within this request will now be swiftly escalated to other interested and representative parties. Tens of thousands of people remain mired in the scandal of the retrospective Loan Charge and the cursory dismissal of this important and genuine request to help establish those facts and truths which HMRC quite patently appear so desperate to evade, will be considered and deliberated upon most carefully by those recipients. To be continued.

Yours sincerely,

F Thompson