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Safeguards re retrospectivity in releation to the "Loan Charge"
Source: WhatDoTheyKnow
Authority: HM Revenue and Customs
Status: The request was
refused
by
HM Revenue and Customs
.
Imported path: /opt/loancharge/imports/wdtk/requests/safeguards_re_retrospectivity_in
Open original request on WhatDoTheyKnow
Imported text
SOURCE: WhatDoTheyKnow
SOURCE_URL: https://www.whatdotheyknow.com/request/safeguards_re_retrospectivity_in
TITLE: Safeguards re retrospectivity in releation to the "Loan Charge"
AUTHORITY: HM Revenue and Customs
AUTHORITY_URL: https://www.whatdotheyknow.com/body/hmrc
STATUS: The request was
refused
by
HM Revenue and Customs
.
REQUEST_SLUG: safeguards_re_retrospectivity_in
CAPTURED_AT: 2026-05-19T07:04:28+00:00
PROVENANCE: {"first_seen_at": "2026-05-18T12:54:55", "first_seen_page": "1", "first_query_term": "\"Loan Charge\"", "first_date_after": "2022/01/01", "first_date_before": "2023/01/01", "matched_query_terms": "\"Loan Charge\"", "matched_date_ranges": "2022/01/01 to 2023/01/01", "first_search_url_template": "https://www.whatdotheyknow.com/search/%22Loan%20Charge%22/requests?commit=Filter&query=%22Loan+Charge%22&request_date_after=2022%2F01%2F01&request_date_before=2023%2F01%2F01&request_variety%5B%5D=sent&request_variety%5B%5D=response&request_variety%5B%5D=comment&sortby=&utf8=%E2%9C%93&page="}
ATTACHMENTS:
- FOI2022_02084.pdf | https://www.whatdotheyknow.com/request/safeguards_re_retrospectivity_in/response/1977433/attach/3/FOI2022%2002084.pdf?cookie_passthrough=1 | application/pdf | 205291 bytes
- [not downloaded] | https://www.whatdotheyknow.com/request/safeguards_re_retrospectivity_in/response/1977433/attach/html/3/FOI2022%2002084.pdf.html | | 0 bytes
- IR2022_08582.pdf | https://www.whatdotheyknow.com/request/safeguards_re_retrospectivity_in/response/2066032/attach/3/IR2022%2008582.pdf?cookie_passthrough=1 | application/pdf | 214115 bytes
- [not downloaded] | https://www.whatdotheyknow.com/request/safeguards_re_retrospectivity_in/response/2066032/attach/html/3/IR2022%2008582.pdf.html | | 0 bytes
================================================================================
MESSAGE 1 [outgoing]
HEADER: Arthur Lewis
29 January 2022
Delivered
--------------------------------------------------------------------------------
Dear HM Revenue and Customs,
The Cabinet Office "Guide to Making Legislation S.41" states:
"No substantive provision of an Act should be brought into operation earlier than two months after Royal Assent..... In exceptional circumstances, approval for early commencement should be sought from the Law Officers and the chair of the PBL Committee. Retrospective provisions also need to be agreed by the Law Officers (contact details for the Attorney General’s Office and the Legal Secretariat to the Advocate General for Scotland can be found at Appendix B)."
Please provide details re what analysis was undertaken/approvals obtained before the date of Royal Assent re the "Loan Charge" being applied to tax years back to 20 years prior. In addition, related discussion post Royal Assent including:
a) all correspondence and records within HMRC & any other department in relation to S.41 (or any predecessor guidelines in force at the time the Loan Charge was passed) to show how S.41 was considered/properly applied pre Royal Assent
b) Any correspondence post Royal Assent discussing how the loan charge is (or is not) retrospective or retroactive and why S.41 approval were not sought (if that is the case)
c) what dialogue seeking "agreement" or approvals given as per S.41 occurred with:
i). the Law Officers and/or
ii. the Chair of the PBL Committee and/or
iii. the Legal Secretariat to the Advocate General for Scotland and/or
iv) any other person or body who did/should have reviewed or approved re S.41
Yours faithfully,
Arthur Lewis
================================================================================
MESSAGE 2 [incoming]
HEADER: FOI Team,
HM Revenue and Customs
31 January 2022
--------------------------------------------------------------------------------
Our ref: FOI2022/02084
Dear Mr Lewis,
Freedom of Information Act 2000 Acknowledgement
Thank you for your communication of 29 January.
We have allocated the above reference which you should quote if you need
to contact us.
We will arrange for a reply to be sent to you which will either comply
with our obligations under Freedom of Information Act or, if we think it's
an enquiry that we don't need to address under the terms of the Act, let
you know why. If it is the latter we will, if possible, pass it on to a
more appropriate part of the Department for answer.
While we aim to r espond to all freedom of information requests within 20
working days, if for some reason this timescale cannot be complied with,
we will, where possible, write to you explaining the reason for the delay
and provide an estimated time for response.
Yours sincerely
HMRC Freedom of Information Team
================================================================================
MESSAGE 3 [incoming]
HEADER: FOI Team,
HM Revenue and Customs
18 February 2022
--------------------------------------------------------------------------------
1 Attachment
FOI2022 02084.pdf
200K
View
Download
Dear Mr Lewis,
We are writing in response to your request for information, received 29
January.
Yours sincerely,
HMRC Freedom of Information Team
================================================================================
MESSAGE 4 [outgoing]
HEADER: Arthur Lewis
26 February 2022
Delivered
--------------------------------------------------------------------------------
Dear HM Revenue and Customs,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of HM Revenue and Customs's handling of my FOI request 'Safeguards re retrospectivity in relation to the "Loan Charge"'.
I am not interested in why the Government decided to create the loan charge. That is already known and understood.
However, my request is whether the Government FOLLOWED MANDATORY RULES protecting against retrospective legislation.
That is a reasonable request and seeking exemptions to hide whether citizen protections were observed or not is of national importance in a democracy.
A full history of my FOI request and all correspondence is available on the Internet at this address:
https://www.whatdotheyknow.com/request/s...
Yours faithfully,
Arthur Lewis
================================================================================
MESSAGE 5 [incoming]
HEADER: FOI Team,
HM Revenue and Customs
28 February 2022
--------------------------------------------------------------------------------
Our ref: IR2022/08582
Dear Mr Lewis,
Freedom of Information Act 2000 Acknowledgement
Thank you for your communication of 26 February.
We have allocated the above reference which you should quote if you need
to contact us.
We will arrange for a reply to be sent to you which will either comply
with our obligations under Freedom of Information Act or, if we think it's
an enquiry that we don't need to address under the terms of the Act, let
you know why. If it is the latter we will, if possible, pass it on to a
more appropriate part of the Department for answer.
While we aim to r espond to all freedom of information requests within 20
working days, if for some reason this timescale cannot be complied with,
we will, where possible, write to you explaining the reason for the delay
and provide an estimated time for response.
Yours sincerely
HMRC Freedom of Information Team
================================================================================
MESSAGE 6 [incoming]
HEADER: Team, FOI,
HM Revenue and Customs
22 June 2022
--------------------------------------------------------------------------------
1 Attachment
IR2022 08582.pdf
209K
View
Download
Dear Mr Lewis,
We are writing in response to your request for information, received 26
February.
Yours sincerely,
HMRC Freedom of Information Team
================================================================================
ATTACHMENT TEXT EXTRACTION / OCR
================================================================================
--------------------------------------------------------------------------------
ATTACHMENT: FOI2022_02084.pdf
TEXT_FILE: FOI2022_02084.pdf.txt
METHOD: pdf_native
OCR_USED: False
PAGES: 3
--------------------------------------------------------------------------------
--- PDF page 1 ---
If you need extra support, for example if you have a disability, a mental health condition, or
do not speak English/Welsh, go to www.gov.uk and search for ‘get help from HMRC’.
Text Relay service prefix number – 18001
OFFICIAL
Freedom of Information Team
S1715
6 Floor
Central Mail Unit
Newcastle Upon Tyne
NE98 1ZZ
Mr Arthur Lewis
By email: request-828312-
5fddbbde@whatdotheyknow.com
Email
foi.request@hmrc.gov.uk
Web
www.gov.uk
Date: 18 February 2022
Our ref:
FOI2022/02084
Dear Mr Lewis
Freedom of Information Act 2000 (FOIA)
Thank you for your request, which was received on 29 January, for the following information:
“The Cabinet Office "Guide to Making Legislation S.41" states:
"No substantive provision of an Act should be brought into operation earlier than two months
after Royal Assent..... In exceptional circumstances, approval for early commencement
should be sought from the Law Officers and the chair of the PBL Committee. Retrospective
provisions also need to be agreed by the Law Officers (contact details for the Attorney
General's Office and the Legal Secretariat to the Advocate General for Scotland can be
found at Appendix B)."
Please provide details re what analysis was undertaken/approvals obtained before the date
of Royal Assent re the "Loan Charge" being applied to tax years back to 20 years prior. In
addition, related discussion post Royal Assent including:
a) all correspondence and records within HMRC & any other department in relation to S.41
(or any predecessor guidelines in force at the time the Loan Charge was passed) to show
how S.41 was considered/properly applied pre Royal Assent
b) Any correspondence post Royal Assent discussing how the loan charge is (or is not)
retrospective or retroactive and why S.41 approval were not sought (if that is the case)
c) what dialogue seeking "agreement" or approvals given as per S.41 occurred with:
i). the Law Officers and/or
ii. the Chair of the PBL Committee and/or
iii. the Legal Secretariat to the Advocate General for Scotland and/or
iv) any other person or body who did/should have reviewed or approved re S.41”
Our response
--- PDF page 2 ---
2
OFFICIAL
HMRC can neither confirm nor deny whether it holds any information within the scope of the
request on the basis of the provisions in sections 35(1)(c) and 35(3) FOIA.
Section 35(1) provides:
‘Information held by a government department or by the Welsh Assembly
Government is exempt information if it relates to—
(a) the formulation or development of government policy,
(b) Ministerial communications,
(c) the provision of advice by any of the Law Officers or any request for the provision
of such advice, or
(d) the operation of any Ministerial private office.
Section 35(3) provides:
‘The duty to confirm or deny does not arise in relation to information which is (or if it
were held by the public authority would be) exempt information by virtue of
subsection (1).
A public authority’s duty to confirm or deny whether it holds information requested by an
applicant is imposed by section 1(1)(a) FOIA. A public authority may however exclude itself
from complying with section 1(1)(a) on the basis of section 35(3).
The exemptions at section 35 are qualified exemptions. Therefore, the Commissioner next
has to consider whether in all the circumstances of the case, the public interest in
maintaining the exemption at sections 35(1)(c) and 35(3) outweighs the public interest in the
public authority confirming or denying whether it held any information within the scope of the
request.
The Law Officers are described in section 35(5) FOIA as: the Attorney General, the Solicitor
General, the Advocate General for Scotland, the Lord Advocate, the Solicitor General for
Scotland and the Attorney General for Northern Ireland. The Law Officers are therefore the
United Kingdom’s (UK) most senior legal advisers.
There is a clear public interest in securing for the government, confidential space within
which it can evaluate matters internally with candour and free from the pressures of public
political debate.
Government departments are entitled to seek and receive frank and confidential advice from
its legal advisers, and there is a strong public interest in ensuring that the government is
able to act free from external pressure in deciding what sort of legal advice it obtains, at
what stage, from whom, and in particular whether it should seek advice from the Law
Officers. This strong public interest is reflected in the long-standing convention, observed by
successive governments, that neither the advice of Law Officers, nor the fact that their
advice has been sought, is disclosed outside government. This is recognised in paragraph
2.13 of the Ministerial Code. It is also an interest which is recognised by the particular form
of words used in section 35(1)(c) in contrast to the general provision in relation to legal
professional privilege in section 42(1) FOIA.
Since the Law Officers are the government’s most senior legal advisers, their advice has a
particularly authoritative status. However, the need for the government to obtain legal advice
on a very wide range of matters is such that it would be impossible for such advice to be
provided by the Law Officers in every case. Disclosure of the occasions when legal advice
has been sought from the Law Officers would therefore have the effect of disclosing those
matters which, in the judgement of the government, have a particularly high political priority
or are assessed to be of particular legal difficulty. This would be directly counter to the
strong public interest which underlies the whole of section 35.
To disclose routinely whether the Law Officers have advised on particular issues would
potentially create a two-fold detriment. On the one hand, to disclose that they have advised
on an issue would be taken to indicate that particular importance was attached to it or even
--- PDF page 3 ---
3
OFFICIAL
that the government was in particular doubt about the strength of its legal position. Even if
the impression were unfounded, the risk of creating it might deter the government from
consulting the Law Officers in appropriate cases. On the other hand, to disclose that the Law
Officers have not advised on an issue might expose the government to criticism for not
having consulted them, and hence having failed to give sufficient weight to an issue or
obtain the best advice. Again, even if unfounded this could lead to pressure to consult the
Law Officers in inappropriate cases or in an unmanageably large number of cases.
HMRC acknowledges that there is a general public interest in public authorities being open
and transparent but would stress that that what is in the public interest is not the same as
what is of interest to the public.
In light of this HMRC has decided that in all the circumstances of the case the public interest
in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in
confirming if the requested information is held.
If you are not satisfied with our reply, you may request a review within 40 working days of
receiving this letter by emailing foi.review@hmrc.gov.uk or by writing to our address at the
top.
If you are not content with the outcome of an internal review you can complain to the
Information Commissioner’s Office.
Yours sincerely,
HM Revenue and Customs
--------------------------------------------------------------------------------
ATTACHMENT: IR2022_08582.pdf
TEXT_FILE: IR2022_08582.pdf.txt
METHOD: pdf_native
OCR_USED: False
PAGES: 2
--------------------------------------------------------------------------------
--- PDF page 1 ---
If you need extra support, for example if you have a disability, a mental health condition, or
do not speak English/Welsh, go to www.gov.uk and search for ‘get help from HMRC’.
Text Relay service prefix number – 18001
OFFICIAL
Freedom of Information Team
S1715
6 Floor
Central Mail Unit
Newcastle Upon Tyne
NE98 1ZZ
Mr Arthur Lewis
By email: request-828312-
5fddbbde@whatdotheyknow.com
Email
foi.request@hmrc.gov.uk
Web
www.gov.uk
Date: 22 June 2022
Our ref:
IR2022/08582
Dear Mr Lewis
Freedom of Information Act 2000 (FOIA)
Thank you for your email of 26 February, which seeks a review of our original response to
your information request.
HMRC interpreted your request with reference to section 3.41 of the Guide to Making
Legislation which considers the commencement dates to Acts.
Your request, at parts ’a’ and ‘b’ sought any and all correspondence held by HMRC, on this
matter with reference to the Loan Charge. Part ‘c’ of your request sought specific
correspondence with those bodies provided within section 3.41 of the Guide to Making
Legislation relating to the Loan Charge. In response HMRC neither confirmed nor denied
holding such information by virtue of section 35(1)(c) FOIA.
Section 35(1)(c) covers information relating to Law Officers’ advice:
35.—(1) Information held by a government department or by the Welsh Assembly
Government is exempt information if it relates to—
(c) the provision of advice by any of the Law Officers or any request for the
provision of such advice
Section 35(1)(c) reflects the longstanding constitutional convention that government does
not reveal whether Law Officers have or have not advised on a particular issue, or the
content of any such advice. The underlying purpose of this confidentiality is to protect fully
informed decision making by allowing government to seek legal advice in private, without
fear of any adverse inferences being drawn from either the content of the advice or the fact
that it was sought. It ensures that government is neither discouraged from seeking advice in
appropriate cases, nor pressured to seek advice in inappropriate cases.
As part of this review, I have considered what information may fall within scope of such a
request. I have concluded that whilst information within the class of section 35(1)(c) may be
included within the search results of the first two parts of your request, this is not necessarily
the case. This could not be determined without first collating and reviewing the requested
information.
--- PDF page 2 ---
2
OFFICIAL
It is noted that the first two parts of your request are particularly broad, as I have stated
above, encompassing any and all correspondence on this matter. Such information could
only be collated following a search of the records of all staff involved in this specific policy
both pre and post Royal Assent.
I estimate, that due to the number of individuals whose records would have to be searched,
along with the numerous possible search terms which may apply, this exercise would far
surpass the FOIA cost limit.
Section 12 of FOIA allows a public authority to refuse to deal with a request where it
estimates that it would exceed the appropriate limit to:
- either comply with the request in its entirety or;
- confirm or deny whether the requested information is held.
Regulation 3 of the Fees Regulations states that the appropriate limit for central government,
legislative bodies and the armed forces (in other words, those bodies covered by Part 1 of
Schedule 1 of the Act) is £600.
Regulation 4(3) of the Fees Regulations states that a public authority can only take into
account the costs it reasonably expects to incur in carrying out the following permitted
activities in complying with the request:
•
determining whether the information is held;
•
locating the information, or a document containing it;
•
retrieving the information, or a document containing it; and
•
extracting the information from a document containing it
All public authorities are required to calculate the time spent on the permitted activities at the
flat rate of £25 per person, per hour. This means that the appropriate limit will be exceeded if
it would require more than 24 hours work.
The ICO provides that where a public authority claims that section 12 is engaged, it should,
where reasonable, provide advice and assistance to help the requestor to refine the request
so that it can be dealt with under the appropriate limit.
In this case, this could be done by increasing the specificity of parts ‘a’ and ‘b’ and/or
focussing your request on part ‘c’ which in itself is specific.
It is of note that part ‘c’ of your request is directed to obtain information which would attract
the exemption at section 35(1)(c) FOIA and would likely be withheld.
In conclusion, I have found that the exemption at section 35(1)(c) was incorrectly cited in
HMRC’s initial response to you. This is because it would exceed the appropriate limit to
confirm whether information, if held, would fall within the specified class
If you are not content with the outcome of this internal review you can complain to the
Information Commissioner’s Office.
Yours sincerely,
HM Revenue and Customs
.