The statutory instrument published on legislation.gov.uk creates a new procedural rule for lawyers involved in disputes over HMRC publication decisions. The Publication of Information About Tax Avoidance Schemes (Legally Privileged Communications Declarations) Regulations 2026 were made on 1 June 2026, laid before the House of Commons on 2 June and will come into force on 23 June. Signed for HMRC by Commissioners Penny Ciniewicz and Carol Bristow, the measure deals with a narrow but important point in tax enforcement procedure. It sets out what a lawyer must include in a formal declaration where privileged communications are relied on to support representations that information about a tax avoidance scheme, or a person connected with it, should not be published.
The legal basis sits in section 209 of the Finance Act 2026. As the explanatory note records, HMRC already has publication powers under earlier legislation, including section 316C of the Finance Act 2004, paragraph 36 of Schedule 17 to the Finance (No. 2) Act 2017 and section 86 of the Finance Act 2022. Where HMRC proposes publication, the person concerned may make representations against that step. If the person is a lawyer, legal professional privilege, or in Scotland confidentiality of communications, may prevent disclosure of the material that would otherwise support those representations. Section 209 creates a route for a lawyer to confirm that privileged communications substantiate the case without disclosing the communications themselves.
The regulations make that declaration highly specific. A lawyer must provide the name, home address and practising address of the lawyer intending to make the representations, the lawyer signing the declaration if that is a different person, and any other lawyer whose privileged communications are being relied on. The declaration must also identify each lawyer's professional regulator and, where one exists, the regulator-issued identifying number. That moves the process beyond a general assertion of privilege and towards a clearly attributable professional statement with named individuals and traceable regulatory details.
The instrument also requires the declaration to identify the arrangements in question and the individual facts in the representations that the lawyer says are supported. For this purpose, arrangements takes the meaning given in section 212(5) of the Finance Act 2026. The lawyer must then state whether the privileged communications alone are sufficient, on the balance of probabilities, to show that the representations are true, or whether the privileged communications only do so when read with other information. If other information is part of the evidential basis, that material must be identified. HMRC therefore receives a clearer account of the case being advanced, even though the privileged material itself remains protected.
The timing requirement is strict. Regulation 3 provides that the declaration must be given to HMRC no later than the representations to which it relates. The instrument does not treat the declaration as a document that can routinely follow afterwards. For advisers, that point is likely to matter as much as the content requirements. Any firm preparing representations against publication will need the privilege analysis, the factual basis and the sign-off process completed before the representations are submitted, particularly where more than one lawyer's communications are being relied on.
The requirement for the declaration to confirm that its contents are true to the best of the signatory's knowledge and belief gives it a formal compliance character rather than the status of ordinary correspondence. The lawyer making the declaration must sign and date it, which places personal responsibility on the signatory for the accuracy of what is asserted. For HMRC, the practical effect is a standardised format for privilege-based objections to publication. The department gains clearer identification of the professionals involved, a more precise statement of what facts are said to be supported, and a better basis for testing whether an objection has been properly framed without requiring disclosure of protected legal advice.
The measure is procedural rather than expansive. It does not create a new HMRC publication power, and it does not remove or narrow legal professional privilege. Its function is to set the conditions under which privilege may be invoked when lawyers challenge HMRC's intention to publish information about tax avoidance arrangements. The explanatory note also states that the Tax Information and Impact Note published on GOV.UK on 26 November 2025 alongside Autumn Budget 2025 remains an accurate summary of the expected effects. Read in that context, the regulations form part of a wider enforcement package aimed at promoters of marketed tax avoidance, while leaving the underlying law of privilege intact.