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)  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