I really felt the need to comment on Richard Murphy’s views on the Ingenious Media decision in the High Court.
Firstly, I appreciate that he is possibly trying to make a moral argument to his readers, rather than a legal one, but the headline does give the impression that HMRC are wrong in defending taxpayer’s rights to confidentiality. Which, given that they use a legal argument, suggests that they are legally wrong.
Obviously Richard would like to see more disclosure of sensitive information to the Public Accounts Committee from people-other-than-himself. His conclusions on the Ingenious Media case appear to be rather fanciful in a legal sense.
Mr Justice Sales pretty much states outright that the facts of this case aren’t going to be widely applicable:
- The second feature of the case which I emphasise is the very limited nature of the disclosures made by Mr Hartnett and the particular circumstances in which he made them.
What are those limited disclosure and particular circumstances? Well, Mr Hartnett was speaking in an “off the record” meeting where he expected to not be quoted.
In fact, HMRC were “surprised and disappointed” when The Times directly quoted Dave Hartnett.
- So far as HMRC were concerned, the interview was to be with responsible journalists from a national newspaper of good repute who could be relied upon not to publish anything said by Mr Hartnett in the course of the briefing.
The briefing, incidentally was ostensibly on the subject of film schemes, NOT the taxpayers who were named.
Now, I think it would be unethical were HMRC to disclose names “off the record” in the hope that they will find their way into the media. I don’t think HMRC would want to be seen to be the ones doing the leaking even if that were the intention. It rather undermines their relationship with their “customers”…
So, I think that HMRC might be doing less “off the record” talking to journalists in future. For starters, you can only rely on the defence that you expected that the journalists wouldn’t leak a few times. Naivety wears off except with the sort of person who probably needs to be sued to learn their lesson.
Anyway, my point is simply that there is a big difference between making off the record comments to journalists about controversial tax arrangements which accidentally get quoted against your wishes and deliberately and publicly revealing commercially sensitive data about whoever the newspapers are currently gossiping about.