Commentary on Sections England and Wales and Northern Ireland Section 438: Disclosure of information by Director
582.Section 438 provides that the Director may disclose information to any person or body for any of the purposes set out in subsection (1)(a) to (i). Subsections (2) and (3), however, prohibit disclosure of any information obtained by the Director under Part 6 of the Act (Revenue Functions) except to the Commissioners of Inland Revenue, or to the Lord Advocate for the exercise of his functions under Part 3 of the Act. These measures again recognise the delicate nature of information relating to the tax affairs of an individual. The purpose of enabling such information to be disclosed to the Lord Advocate is to ensure that he is on the same footing in relation to his Part 3 functions as the Director would be in relation to his Part 2 functions – the Director would be able to use such information for his Part 2 functions by virtue of section 435. Similarly, subsection (4) allows the Lord Advocate to disclose such information to Scottish Ministers for the purpose of their functions under Part 5 of the Act; this is so that Scottish Ministers will be on the same footing as the Director, who, by virtue of section 435, would be able to use such information in connection with his Part 5 functions.
583.Subsection (5) provides for the Director to impose conditions on the further disclosure of any information disclosed by him. Subsection (6) prohibits the disclosure of the information in contravention of these conditions. Under subsection (9), the Secretary of State will be able to add to the list of disclosure purposes by order which, by virtue of section 459(6)(a), will be subject to approval by both Houses of Parliament.
584.As with section 436(3), exchanges of information which contravene the Data Protection Act 1998, or are prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000, are not permitted and any disclosure would be subject to the provisions of the Human Rights Act 1998.