Select Committee on Treasury Third Report


Appendix 1: Letter from the Paymaster General to the Chairman of the Sub-Committee


Thank you for your letter of 27 October in which you request that I publish the advice that was the subject of earlier correspondence between David Laws MP and myself.

Officials in HMRC, as holders of the information, have advised me that, after careful consideration, they cannot agree to your request to disclose their legal advice.

I asked HMRC officials to provide me with a detailed explanation of their decision that I could pass on to you. I have set out below the reasoning behind HMRC decision.

HMRC's legal advice is that the information you requested is information that attracts legal professional privilege. The most recent consideration of the importance of this legal principle was the House of Lords in Three Rivers DC v Bank of England (No. 6) [2005] 1 AC 610:

The underlying rationale for having a strongest rule against disclosure is that it encourages full and frank exchanges between clients and their legal advisers, which is judicially recognised as being something strongly in the public interest, for a variety of reasons.

These reasons apply with particular force in relation to legal advice concerning governmental policies, because (i) it is strongly in the public interest that governmental action should respect the rule of law, which makes it imperative that clear, fully informed and fully reasoned and balanced legal advice should be available to the decision-makers with responsibility for such decisions; (ii) if the advice provided to the government were liable to be disclosed, the advice (and possibly the instructions underpinning that advice) might come to be tailored to take into account the impact they would have.

It is also an important factor, which underlies the general rationale for legal professional privilege and its particular application in the case of governmental decisions, that the rule against disclosure should be known to operate with reasonable certainty in advance. If its application were uncertain and too readily displaced, that would undermine the very public interest in encouraging full and frank exchanges between government and its legal advisers which the rule is supposed to promote.

For the above reasons, HMRC have concluded that it would not be appropriate to waive legal professional privilege and provide a copy of Counsel's advice, in response to your request.

I appreciate that this advice will be disappointing to the Committee. However, I have already set out, in my letter of 30 June to David Laws MP, the broad structure of Counsel's advice. A copy of that letter has been placed in the House.

Dawn Primarolo MP, 29 November 2006


 
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