Section 209 | Declaration in relation to privileged material

(1)Subsection (2) applies where—

(a)HMRC have notified a lawyer that they intend to publish, or are considering publishing, information identifying the lawyer under a provision listed in subsection (5), and

(b)the lawyer—

(i)intends to make representations to the effect that the information should not be published, but

(ii)will not be able to substantiate some or all of those representations without disclosing the content of privileged communications.

(2)A lawyer (whether or not the lawyer intending to make the representations) may make a declaration to the effect that—

(a)the representations are true, and

(b)the content of privileged communications would be sufficient (whether alone or with other information) to demonstrate this on the balance of probabilities.

(3)When considering whether the information referred to in subsection (1)(a) may be published, HMRC and, in the context of proceedings, a court or tribunal must treat a declaration made under subsection (2) and provided under a provision listed in subsection (5) as conclusive evidence of the information included in the declaration.

(4)But subsection (3) does not apply if HMRC, or the court or tribunal, is satisfied that the declaration includes any information that is incorrect.

(5)The provisions are—

(a)section 316C of FA 2004 (disclosure of tax avoidance schemes);

(b)paragraph 36 of Schedule 17 to F(No.2)A 2017 (disclosure of tax avoidance schemes: VAT and other indirect taxes);

(c)section 86 of FA 2022 (publication of information about tax avoidance schemes).

(6)For the purposes of this section—

(a)references to a lawyer are references to a person in respect of whose communications a claim to legal professional privilege, or (in Scotland) to confidentiality of proceedings as between client and professional legal adviser, could be maintained in legal proceedings, and

(b)a communication is “privileged” if such a claim could be maintained in respect of it.

(7)In this section—

“HMRC” means—

where the provision referred to in subsection (1)(a) is section 316C of FA 2004, HMRC as defined for the purposes of that section;

where the provision referred to in subsection (1)(a) is paragraph 36 of Schedule 17 to F(No.2)A 2017, HMRC as defined for the purposes of that paragraph;

where the provision referred to in subsection (1)(a) is section 86 of FA 2022—

in subsection (1)(a), an officer of Revenue and Customs;

in subsections (3) and (4), an authorised officer as defined for the purposes of that section;

“tribunal” means the First-tier Tribunal or, where determined by or under Tribunal Procedure Rules, the Upper Tribunal.

(8)The Commissioners for His Majesty’s Revenue and Customs may by regulations make provision about—

(a)the form of a declaration made under subsection (2),

(b)the information to be included in a declaration,

(c)when and how a declaration is to be provided.

(9)Regulations under this section—

(a)are to be made by statutory instrument, and

(b)may make different provision for different purposes.

(10)A statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of the House of Commons.