BKM506800 - Governance protocol: circumstances in which HMRC can override the Independent Reviewer.

The final decision on whether a bank is in breach of the Code, and if so whether to name that bank, is made by HMRC’s Commissioners. The legislation requires that the Commissioners consider the particular bank’s conduct when determining whether they have breached the Code – FA14/S287.

The circumstances in which HMRC can override the Independent Reviewer are set out in FA14/S287(10).

These provisions limit the circumstances in which the Commissioners are legally entitled to make a different determination from the Independent Reviewer in a case where the reviewer has determined that the bank should not be named. Specifically, HMRC may reach a different determination from the Independent Reviewer only in two limited and exceptional circumstances:

• if the Independent Reviewer’s opinion is flawed when considered in the light of the principles applicable in proceedings for judicial review (the Wednesbury test of unreasonableness); or
• there are other compelling reasons for HMRC reaching a different conclusion. These compelling reasons must relate to specific actions of the bank and be in relation to tax matters.

The question of whether either of those exceptional circumstances arise is to be determined objectively. If, as a matter of fact, the decision was not flawed or there are no other compelling reasons, the Commissioners are not entitled to do anything apart from accept the Independent Reviewer’s determination.

If the Commissioners do make a different determination which the bank challenges by judicial review on the grounds that it is ultra vires, the effect of FA14/S287(11)(b) is that the burden of proof is on the Commissioners to show that the Independent Reviewer’s determination was flawed or other compelling reasons exist. In deciding that issue, the court will apply an objective test to determine whether in its view the determination was flawed or other compelling reasons exist.

Full details of the behaviours or circumstances that might lead HMRC to have concerns over a bank’s compliance with the Code are included in BKM507000 covering HMRC’s operation of the Code. Further guidance on HMRC’s views on how the Code applies including the “intentions of Parliament” are included in BKM503000, BKM504000 and BKM505000.