EM1357 - Human Rights Act 1998 (HRA): Article 8: Activity must be Proportionate

In order for HMRC to comply with the conditions of Article 8(2) any planned activity must be proportionate to the underlying need.

To assess proportionality you should consider

• the nature and degree of the interference and
• whether the interference is reasonable in the circumstances of the case.

The greater the interference, the more justification you will need.

In addition, interference can only be proportionate if it is the minimum necessary to achieve your aim.

Public Authorities, such as HMRC must exercise judgement over what is reasonable in any particular circumstances.

Most of the activities permissible within HMRC interfere with rights of privacy to a relatively low extent. However, every case must be considered on its merits, as what is proportionate in one case may be excessive in another.

When considering proportionality it may help to take into account the following.

• What are the expected benefits?
• Could the information be gathered in a less intrusive way, for example, direct from the taxpayer rather than a third party?
• What is the degree and nature of the intrusion?
• How sensitive is the information you are seeking, for example medical information may raise particular sensitivities, see EM2277?
• What is the expectation of privacy? For example, a business may expect you to examine its primary financial records, but consider supporting documents (particularly correspondence with advisers) more private.

The more private the documents are, the more justification you will need to obtain them.