Principle of Legality

A senior British tax official disclosed, in an “off the record” interview with some journalists, that the schemes of a particular promoter of film tax shelters had been generating large losses to the fisc, and they published this and other confidential information. HMRC argued that this disclosure was justified by a statutory provision which authorized a “disclosure … made for the purposes of a function” of HMRC, noting their “general desire to foster good relations with the media or to publicise HMRC’s views about elaborate tax avoidance schemes,” as well as to the possibility of getting tips from the journalists.

In rejecting HMRC’s position, Lord Toulson J noted that under “the common law of confidentiality”:

where information of a personal or confidential nature is obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient will in general owe a duty to the person from whom it was received or to whom it relates not to use it for other purposes.

He then stated (at para. 19) that to construe the statutory exception to confidentiality broadly:

would run counter to the principle of construction known as the principle of legality, after Lord Hoffmann’s use of the term in R v Secretary of State for the Home Office, Ex p Simms [2000] 2 AC 115, 131. He explained the principle as follows:

“Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”