Throughout my career, I have sought to make the law and practice in my area (taxation and trusts) as accessible and understandable as possible. I believe that this benefits practitioners and the general public, and is indeed in the best interests of HMRC.
Since HMRC do not altogether share this view, this has led me to run two Freedom of Information cases against HMRC, details of which are on this page.
In this case, decided July 2011, I applied to see the skeleton argument which HMRC put to the Court of Appeal in the case of R (on the application of Gaines-Cooper) v HMRC (a case on the meaning of residence for tax purposes).
Open justice is a fundamental principle of English law. Justice should be seen to be done and open to public scrutiny. This applies to court hearings and to skeleton arguments put before the court, which are to help the judges understand the case.
HMRC refused to supply their skeleton argument.
The Court of Appeal ordered that the skeleton argument should be disclosed.
This has established the important principle that HMRC skeleton arguments should be disclosed on request.
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In this case I applied to see a copy of advice which HMRC had received on an issue of EU law.
The EU law issue was important to the UK financial industry: whether the statutory definition of trustee residence, which was in force from 1965 to 2007, was compliant with EU law. HMRC said that it was not. Some leading EU lawyers, including Chris Vajda QC did not agree. Fully informed debate on the point would require HMRC to disclose why they reached their view, so I asked to see a copy of their advice. HMRC refused to provide it.
HMRC successfully persuaded the Information Tribunal not to order disclosure.
However, the Tribunal "urged HMRC to provide an updated and fuller public statement of reasoning" (decision para 81) which is essentially what the application had been asking for. The Tribunal also criticized HMRC for the way they handled the matter - HMRC's view was "bald and substantially unexplained" - para 65.
So there was something in the decision for both sides.
Unfortunately HMRC refused to do what the Tribunal urged should be done. The Information Commissioner did not order the HMRC to disclose. By then so many years had passed that I did not take the matter back to the Information Tribunal. So no statement of the reasons for the HMRC view has ever been provided and the underlying EU law issue has never been fully debated in public, and it never will be.
The other - somewhat sinister - aspect of this case is the decision of the Tribunal to accept secret submissions from HMRC which the appellant was not allowed to see. English common law and European human rights law require that each side in litigation hears the evidence and arguments put forward by the other side. It is unfortunate that this aspect of the decision is not to be reviewed in a higher court, but after some hesitation I decided to leave this point for another litigant. I hope the Tribunal’s practice of accepting secret submissions will be stamped on when it comes to be reviewed in the higher courts.
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For a short summary see Article in Taxation
James
Kessler QC
15 Old Square
Lincoln's Inn
WC2A
3UE