K Gordon v Information Commissioner & Anor

Section 18(1) of the Commissioners for Revenue & Customs Act 2005 prohibits disclosure of information held by HMRC in connection with an HMRC function. Its scope is not confined to information protected by the common-law or Marcel principle of taxpayer confidentiality. Consequently, section 23 of the Act and section 44(1)(a) of the Freedom of Information Act 2000 may exempt HMRC information even where it would not otherwise be confidential. Obiter observations in R (Ingenious Media Holdings plc and another) v HMRC [2016] UKSC 54, insofar as they suggested a narrower scope, were not followed.

The appellant requested confirmation of, and information about, words redacted from an HMRC email concerning loan-charge and disguised-remuneration matters. HMRC refused disclosure under section 44(1)(a) of the Freedom of Information Act 2000, relying on section 23 of the Commissioners for Revenue & Customs Act 2005 and the prohibition in section 18(1).

The Information Commissioner upheld the refusal. The First-tier Tribunal, in decision EA/2022/0039 dated 2 December 2022, dismissed the appeal, accepting that the requested information was HMRC information relating to a person and that disclosure could identify that person. The issue before the Upper Tribunal was whether section 18(1) was confined to information subject to taxpayer confidentiality under the Marcel principle, and whether the First-tier Tribunal had erred in applying the absolute exemption.

1. The appeal was dismissed. The First-tier Tribunal had made no error of law. Its decision was upheld under section 11 of the Tribunals, Courts and Enforcement Act 2007.
2. Section 23 of the Commissioners for Revenue & Customs Act 2005 identifies the relevant category of section 18(1) information for the purposes of section 44(1)(a) of the Freedom of Information Act 2000. The information must be prohibited from disclosure by section 18(1), be revenue and customs information relating to a person within section 19(2), and be information whose disclosure would identify that person or enable the person’s identity to be deduced.
3. Section 18(1) is expressed in broad terms. It prohibits disclosure of information held by HMRC in connection with any HMRC function. Neither section 18(1), nor the other provisions headed confidentiality, refers to the common law of confidence or the Marcel principle. The structure of sections 17 to 23, including the numerous exceptions in section 18(2), the consent exception in section 18(2)(h), the treatment of internal administrative information in section 19(2), and the interface with FOIA in section 23, confirms that Parliament intended a statutory code extending beyond Marcel-type information.
4. The Upper Tribunal considered the ratio of R (Ingenious Media Holdings plc and another) v HMRC [2016] UKSC 54 to be that section 18(1) includes information protected by the Marcel principle and that section 18(2)(a)(i) must be construed so as to preserve that protection. Any wider view that section 18(1) was confined to Marcel-type information was obiter. The Upper Tribunal declined to follow that view because it could not be reconciled with the statutory scheme.
5. It was impermissible to use Hansard under Pepper (Inspector of Taxes) v Hart [1993] AC 593. Section 18(1) was neither ambiguous nor obscure, and its literal meaning did not produce an absurd result. The interpretative principle against doubtful penalisation did not justify a constrained construction in proceedings concerned with the FOIA exemption rather than the criminal offence in section 19(1).
6. The Upper Tribunal also rejected the challenge to the earlier decision in Gordon v Information Commissioner & HMRC [2020] UKUT 92 (AAC), which was part of the same litigation and is not separately treated as a cited authority.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed. The First-tier Tribunal decision involved no error on a point of law.
• First-tier Tribunal (General Regulatory Chamber): decision dated 2 December 2022 under case reference EA/2022/0039. The appellant’s challenge to HMRC’s refusal of disclosure was dismissed.