Commissioners for Revenue and Customs Act 2005

Commissioners for Revenue and Customs Act 2005

2005 CHAPTER 11

Commentary on Clauses

Section 18: Confidentiality

93. The section lays down a code of confidentiality for the new Commissioners and their officers in relation to information held by "the Revenue and Customs", and the circumstances in which disclosures can be made. The section is based on the provisions of the Inland Revenue statutory declaration (Schedule 1 Taxes Management Act 1970), extended as a statutory duty to all Commissioners and officers of the new department.

94. Subsection (1) lays down the general principle that "Revenue and Customs officials" may not disclose information held by "the Revenue and Customs". The terms are defined in subsection (4).

95. Subsection (2) then provides for a limited number of specific circumstances where disclosure may be allowed.

96. Paragraph (a) allows a disclosure to be made for the purposes of a function of the Revenue and Customs, which does not contravene any restriction imposed by the Commissioners. This would cover, for example, a disclosure made in connection with the levy of distress for unpaid taxes, or disclosure to a bank by paying in a tax refund.

97. Paragraph (b) allows a disclosure in the public interest, or to the prosecuting authority (in accordance with procedures laid down in section 20 and 21).

98. Paragraph (c) allows a disclosure to be made for the purposes of civil proceedings (whether or not within the United Kingdom) relating to a matter in respect of which the Revenue and Customs have functions. This would cover, for example, a disclosure in the course of Special Commissioners, VAT and Duties Tribunal or other civil proceedings, or a disclosure to a foreign revenue authority to assist the recovery of UK tax debts abroad, under EU mutual recovery arrangements.

99. Paragraph (d) allows a disclosure to be made for the purposes of criminal investigation or criminal proceedings (whether or not within the United Kingdom) relating to a matter in respect of which the Revenue and Customs have functions. This would cover, for example, disclosure to the court under the disclosure provisions (sections 3 to 9) of the Criminal Procedure and Investigation Act 1996. It would also cover disclosure to a person other than the prosecutor for the purposes of criminal investigation, such as the Sheriff in connection with the grant of a search warrant at common law in Scotland, or to a foreign police or judicial authority for authority to continue a hot pursuit surveillance into a foreign jurisdiction, pursuant to the foreign equivalent of section 83 Crime (International Co-operation) Act 2003. In addition this would cover further HMRC investigations abroad, under the direction of RCPO, following commencement of proceedings with a foreign component or straddling EU Member State boundaries (e.g. in respect of the offence under section 71 Criminal Justice Act 1993).

100. Paragraph (e) allows a disclosure in pursuance of any order of a court. This would cover, for example, a disclosure in accordance with a witness summons.

101. Paragraph (f) covers a disclosure to HM Inspectors of Constabulary and their Scottish and Northern Ireland counterparts, termed “the Scottish Inspectors” and “the Northern Ireland inspectors”, who are to take on an inspectorial function for the new department, under section 27.

102. Paragraph (g) covers a disclosure to the Independent Police Complaints Commission, who are to take on an oversight of complaint handling about allegations of criminal conduct or gross misconduct for the new department, under section 28.

103. Paragraph (h) covers a disclosure made with the consent of each person to whom the information relates. This would cover for example an individual case where a taxpayer raised their circumstances with their Member of Parliament, asked them to take the case up with Treasury Ministers, and authorised the Commissioners to disclose what they knew of the case to the Minister for that purpose.

104. Subsection (3) makes subsection (1) subject to any other enactment permitting disclosure, e.g. section 8 Finance Act 1988, which authorises the Commissioners of Customs and Excise (and in future the Commissioners for HMRC, by virtue of the working of section 50(1)) to disclose information about imported goods.

105. Subsection (4)(a) to (c) defines "Revenue and Customs officials" and "the Revenue and Customs" for the purposes of the section. The definition looks forward to the time when there will be persons who were Commissioners and officers of the new department, but have ceased to be so, e.g. by retirement or resignation. "Revenue and Customs officials", the persons to be subject to the statutory duty imposed by subsection (1), are therefore defined to be any current or former:

• Commissioner for HMRC;

• officer of Revenue and Customs;

• person acting on behalf of the Commissioners or an officer, for example a contractor; and

• member of a committee established by the Commissioners under section 12(1)(b).

106. Subsection 4(d) defines the meaning of the terms “Scottish inspectors” and “Northern Ireland inspectors” with reference to section 27.

107. Subsection 4(e) defines that the term enactment referred to in the section does not relate to an Act of the Scottish Parliament or an Act of the Northern Ireland Assembly or any statutory instrument made under these Acts.

108. "The Revenue and Customs", whose holdings of information define the subject matter of the statutory duty under subsection (1), has the same meaning as in section 17 above, and therefore includes the holdings of information inherited from the predecessor departments within the scope of the statutory duty of confidentiality of the new department.