Tax Avoidance and Me

It has been said, and rightly, that I act for tax avoiders. But there is some context.

In the area in which specialist tax barristers work, there are only two types of client. There is HMRC, which is always arguing that someone should pay more tax. And there are those on the other side (let’s call them ‘taxpayers’) who are arguing that they should pay less tax. Those are the only clients there are.

Throughout my career – from the very earliest moments – I have sought work from HMRC. I have sought it because I wanted to appear on both sides of the divide, because I thought it would be interesting, and because I thought I had something to offer to HMRC. In 2013, after many rejected applications to join the Attorney General’s Panels, from which HMRC chooses its advocates, I was accepted onto the A Panel, the most prestigious of those panels. To the best of my knowledge, I was then the only pure specialist tax barrister ever to be appointed onto the A Panel. So I have always sought work from HMRC – despite the fact that the rates of pay have been much lower.

The vast majority of my work has been for taxpayers – and a majority of that work involves acting in courts and tribunals for taxpayers who have engaged in what are called (in the trade) “marketed tax avoidance schemes.” That work is exceptionally technically demanding – and the members of the Bar who are experienced in it are few in number. I am subject (as are all barristers) to the ‘cab rank rule’. That rule obliges me to accept such instructions as I am offered. It exists to protect the principle that everyone is entitled to a fair trial. And although the operation of the cab rank rule is (in practice) easy to escape, it’s an important rule and I have never sought to escape it. These factors have dictated the practice that I have today. I make no apology for it: it is where a professional life properly lived has taken me.

However, during my career at the Bar, I have worn two hats. I have worn a barrister’s hat – as set out above – and I have worn a policy hat.

That has at times been an uncomfortable wardrobe.

Wearing my policy hat I have often and publicly called for measures – some of which have subsequently found their way into law, some of which the Coalition has promised to introduce and some of which are in Labour’s Manifesto – which have made life more difficult for my taxpayer clients. I have on a number of occasions met with Directors at HMRC to advise on how HMRC should tackle tax avoidance. I have (in a formal setting) given advice to teams of Inspectors – and Managers – in HMRC’s Counter Avoidance Unit. I have written publicly about abuses by (a small group of) my colleagues at the tax bar. I have proposed measures to the relevant Conservative Party Treasury Minister – and at least one of those measures has become law. I have done all of this without financial reward, without the desire for personal advancement, and I have done it because I have wanted to see our tax system function better.

My clients are entitled to expect that I observe my professional obligations to them – and that I fearlessly advance their interests in court. I have always sought to do that – and the strength of my taxpayer practice is testimony to my success. My clients have not always appreciated the fact that, wearing my policy hat, I have argued, on occasion, against what I might anticipate to be their interests. I have no doubt that this will have cost me new clients. But that has not weighed in my calculations.

In June 2013 I took the decision to start writing this blog. My very first post was entitled ‘How do we solve a problem like avoidance?’ Colleagues have described it (repeatedly) as the longest suicide note in history of a successful practice, but I continue to write and argue for better understanding of the complex field in which I work. But for the fact I represent in court clients who engage in tax avoidance, I would not be able effectively to do this policy work. This is not why I represent taxpayer clients engaging in avoidance, but it is nevertheless true.

I have always been transparent about the type of work that I do. None of this has – as two newspapers, one on the right and one on the left of the political spectrum have put the matter – “emerged”. You have been able to read it in the “About” page of this blog from the first day I started writing it, and indeed on my personal profile page at Devereux Chambers. It has “emerged” in the same way as it has “emerged” that I am a barrister: it has always been there.

So, yes, I act for tax avoiders. But there is some context.

I believe I can document all of the claims set out above.

17 thoughts on “Tax Avoidance and Me

  1. On a certain tax blogger’s website where you were criticised for your representation in these matters and where it was said that you past history was ‘baggage’ I attempted to defend you but my post was deleted.

    From past postings you will know that there are many aspects of tax on which we do not agree but I would defend you to the hilt on this point (feeling a bit ‘Voltaire’ here!)

    We live in a democracy where even mass murderers are afforded competent defence and where barristers such as yourself take on a duty to defend your clients to the best of your ability no matter what their case.

    It is a shame that you feel you have to write a blog to defend and explain yourself on this point. Those that matter shouldn’t need it, those that don’t matter don’t deserve it

  2. That’s very kind, Andrew, not least because we’ve had our differences. It’s not so much that I feel compelled to write it but rather that I just wanted to put it on the record.

  3. Those mud-slingers!

    How different do they think a barrister on the cab-rank is from a career civil servant who must dutifully and to the best of his or her ability serve the government of the day? This can mean proposing policy and drafting and implementing legislation one year to accomplish the complete opposite of what was sought the previous year. Over a career of any length this might mean labelling something one day as the most egregious form of avoidance and taking furious action against it when one had previously actively encouraged the very same something (yes indeed).

    The relative anonymity of most civil servants and the fact that no one really finds out the level and intensity of debate and what ‘side’ people might be on means that they rarely have to endure such attacks. Indeed limits are set to the Freedom of Information Act precisely to ensure free and frank internal discussion and advice.

    Ad hominem stuff directed at people who do seek to stimulate debate in the public space can only reduce the quality of debate by discouraging others. And as always, who benefits from that?

  4. Thanks Michael. As always.

  5. Jolyon – you epitomise what is best in the traditional Bar. Although I disagree with you on many issues and I support a political party of a different hue to the one you support, your creed of speaking truth to power is fundamental to the development of a fair society. It is also the reason why you are respected as an advisor.

    Arguing a case requires the ability to see both sides so that you can promote your client’s point of view in a realistic manner. The Bar today is badly served by advocates who only prosecute or only defend – a practice that has infected us from America where loyalty to your tribe appears to have become the Golden Rule amongst lawyers.

    Kind Regards

    Alistair KELMAN

  6. Thank you Alistair. Very much appreciated.

  7. There is of course a third type of client-advocacy groups (National Federation; UK Uncut, Avaaz) 🙂 Steve

  8. A well written defence (as I guess one would expect from an eminent QC). I think for those areas (such as criminal defence) where a genuine cab rank rule is applicable then I would agree that your points are reasonable.

    However there is a difference in trying to defend someone post hoc (as you claim here) and where barristers and solicitors are engaged a priori to construct schemes for would be avoiders. I do not know if you conduct that kind of work, but if you do then I believe there could be justifiable criticism there.

    I see parallels to libel work where I believe certain well known solicitors do bear moral responsibility for muzzling the press over matters in the public interest (e.g. child abuse) even if they were simply acting on instructions from clients.

    It seems to me that few in the legal profession are able to sensibly evaluate the moral position they take when under instruction and often use the cab rank rule (or other forms of ‘client instruction’) to shield themselves from sometimes difficult criticism.

    As I say I don’t believe this is a problem in your case, but it does bear wider consideration.

  9. For reference, this is what the cab rank rule provides (you can read it in context here):

    rC29 If you receive instructions from a professional client, and you are:
    .1 a self-employed barrister instructed by a professional client; or
    .2 an authorised individual working within a BSB authorised body; or
    .3 a BSB authorised body and the instructions seek the services of a named authorised individual
    working for you,
    and the instructions are appropriate taking into account the experience, seniority and/or field of practice
    of yourself or (as appropriate) of the named authorised individual you must, subject to Rule C30 below,
    accept the instructions addressed specifically to you, irrespective of:
    .a the identity of the client;
    .b the nature of the case to which the instructions relate;
    .c whether the client is paying privately or is publicly funded; and
    .d any belief or opinion which you may have formed as to the character, reputation, cause,
    conduct, guilt or innocence of the client.

  10. Thanks for the reference, but I’m not sure stating the rules answers the moral question. My employer could require me to do an immoral act (e.g. working on an account that legitimised or supported some awful regime), I would then be left with a choice to leave my company or compromise my morals.

    You seem to state that the moral good in the cab rank rule outweighs any moral harm in helping people avoid tax. I’m not convinced that is true in areas such as taxation, libel, planning etc, but would be happy to be persuaded.

    I remember a similar view being expressed at a talk on libel reform where a prominent legal campaigner whilst pointing out egregious abuses of libel law, refused to condemn the lawyers involved in soliciting and pursuing those cases as they were merely following instruction.

    Again I don’t think any attacks on you in the papers have been right and I very much value your writing, but I do think the legal profession has a blind spot when it comes to their own moral responsibility for certain abuses of the law.

  11. I don’t think you can fairly read my posting of the cab rank rule as an attempt to answer the moral question you pose: I quite explicitly state “for reference.” I have freely stated elsewhere that I don’t find the cab rank rule a particularly satisfactory defence to the full moral charge. My personal opinion is that such value it has is confined to (as you, I think rightly, point out) arguing the legal consequences of a course of behaviour after the fact. But of course that is where I consider my skills lie – and that is where my practice is concentrated. Of course, all of that having been said, if I do not comply with the cab rank rule I will be unable to practice. The analogy you pose – of leaving your employer – is somewhat imperfect: my choice is to leave my profession.

    Can I also add this: I (personally) have some sympathy with your broader point about the legal profession and its blind spots. But, of course, the law is far from the only area where people, in their work lives, sometimes behave in ways that morally compromise them.

    I have pointed to the actions I have taken to improve the functioning of the law in my field. To such extent as you find me persuasive – harking back to your initial comment – it is not (or not just) because I write well. It is because I have taken the actions I describe.

    Thanks for your thoughts. Please do feel free to continue to comment.

  12. Sorry that I misread your reason for posting the cab rank rules and for missing the Telegraph quote. I agree that my analogy wasn’t perfect and the law law is far from the only place where these hard choices are to be made.

    As I said I do very much respect both your writing and of course the more important policy arguments that flow from these. Perhaps it is unfair to ask the moral question here, because it seems as though I’m singling you out and expecting more of you because you do advocate for reform. This isn’t my intention.

    Perhaps in future you might write about your sympathy with the legal profession’s blind spots and what might be done about them.

    Have a good bank holiday weekend.

  13. Jolyon

    Thank you for explaining yourself. Many of our politicians could learn a lot from your approach.

    I have to say, that your posts (as compelling and insightful as they are to a layman like me) seem to flit from one side to the other on a regular basis. At first I thought that you were just trying to ensure that you still got the work by playing for both sides!! I thought that you were rather capricious to be honest !! Sort of keeping your options open.

    Obviously you have chosen to inhabit a world between the two sides of the tax debate which I have to say makes you very brave but also when one thinks about it – very well informed about the issues around tax. You’re obviously a naturally reflective person and like to share this with others. And long may you do so. In a world where too many of us (especially politicians) want to simplify too much and portray their ideas as truth, I applaud you Jolyon!

  14. Don’t mention it. The challenge was well intentioned, politely advanced and (most importantly) necessary.

  15. The cab rank system is not an accurate assessment of how the barrister rule applies.A more accurate comparison is with a prostitute working in a brothel.You take instruction from the next punter.The cabbie on the taxi rank has a ( limited) right of refusal.A barrister does not have such an entitlement although he may in breach of his charter avoid/evade his obligation.
    Comparing this to you acting for HMRC or taking more lucrative assignments from tax avoiders is inaccurate.
    Making pronouncements on tax policy is a world away from taking briefs from HMRC

  16. I thought we had this discussion months ago!

  17. The cycle of clever promoters and advisers finding ways to exploit the tax incentives intended by Parliament to boost certain industry sectors etc and HMRC re-interpreting those “intentions” and attempting to clamp down, has thrown up a number of apparent hypocritical situations.

    Many of us who designed or developed what is now classified as a mass marketed tax avoidance scheme find ourselves in demand from advisers seeking exits for their clients. The fact that the advisers are sometimes the same as those who put clients into such schemes does not seem to be a burden on most.

    For those of us operating at one remove from the client however it throws up a number of potential issues, not the least of which is described here.

    One wonders whether todays’ “safe” tax incentives (EIS etc) will also be tomorrow’s tax avoidance?

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