BN66 - the road to Judicial Review

[TheBarCapBoyz]

Retrospection In the News Again

This time, curbs on bankers bonuses...

http://business.timesonline.co.uk/to...cle6927744.ece

In effect, the powers would enable the Financial Services Authority and Treasury to “interfere retrospectively with remnumeration contracts and with someone’s accrued right to a bonus,” he said

[smalldog]

great news one of the top judges is damning the retrospective element on bonuses unlawful and penal...all helps our cause!!!

[TheBarCapBoyz]

yes, retrospection seems to have become a hot topic at the moment.

[bananarepublic]

This time, curbs on bankers bonuses...

http://business.timesonline.co.uk/to...cle6927744.ece

In effect, the powers would enable the Financial Services Authority and Treasury to “interfere retrospectively with remnumeration contracts and with someone’s accrued right to a bonus,” he said

Yes, fine, but it would only apply to new contracts.

This is a vital point that people seem to keep on missing. Doing something in the knowledge that retrospection is possible is different from being the unwitting victim of retrospection.

If it is announced at time A, that something you may do in the future will be deemed against the rules and the change backdated to time A is fundamentally different from being told you are the victim of retrospection back to some arbitrary point in the past where no previous warning was given. It is all a question of legitimate expectations.

Please don't confuse the two !!!

[DonkeyRhubarb]

Doing something in the knowledge that retrospection is possible is different from being the unwitting victim of retrospection.

This is why HMRC/Government have made so much of the fact that s58 clarifies earlier legislation that was also retrospective ie. the 1987 Act was the warning/signal that retrospection was possible.

I suspect someone thought they were being really clever when they came up with this idea. Unfortunately, HMRC's actions between 1987 and 2008 tell a completely different story.

[Slobbo]

Yes, fine, but it would only apply to new contracts.

This is a vital point that people seem to keep on missing. Doing something in the knowledge that retrospection is possible is different from being the unwitting victim of retrospection.

If it is announced at time A, that something you may do in the future will be deemed against the rules and the change backdated to time A is fundamentally different from being told you are the victim of retrospection back to some arbitrary point in the past where no previous warning was given. It is all a question of legitimate expectations.

Please don't confuse the two !!!

Retrospection is wrong period. If you are working to the current interpretation of the law then that is what should stand. To tell people we might change our law in the future and will back date the punishment till today because we told you we might is criminal in my eye.

[bananarepublic]

Retrospection is wrong period. If you are working to the current interpretation of the law then that is what should stand. To tell people we might change our law in the future and will back date the punishment till today because we told you we might is criminal in my eye.

Where you have been told that your actions may result in retrospection - back to when the announcement was made - it is in my view defensible. As I said legitimate expectations. By muddling the two circumstances - where there was and where there wasn't a warning - you aren't helping our case as our argument is diluted.

I don't believe the 1987 retrospection can be counted as a warning. Why didn't HMRC mention it for 6 years? Why wasn't it mentioned in HMRC manuals. Why wasn't it mentioned in the 1987 legislation?

This is different from say the 2004 announcement on Employment Related Securities, say. This said that any avoidance in this area would be taxed backdated to November 2004. Although there would be ambiguity surrounding its application there was no ambiguity about when it would backdated - that is the date of the announcement.

Getting into a theological debate about the rights and wrongs of retrospection for all cases will get us nowhere.

[DonkeyRhubarb]

Where you have been told that your actions may result in retrospection - back to when the announcement was made - it is in my view defensible. As I said legitimate expectations. By muddling the two circumstances - where there was and where there wasn't a warning - you aren't helping our case as our argument is diluted.

I don't believe the 1987 retrospection can be counted as a warning. Why didn't HMRC mention it for 6 years? Why wasn't it mentioned in HMRC manuals. Why wasn't it mentioned in the 1987 legislation?

This is different from say the 2004 announcement on Employment Related Securities, say. This said that any avoidance in this area would be taxed backdated to November 2004. Although there would be ambiguity surrounding its application there was no ambiguity about when it would backdated - that is the date of the announcement.

Getting into a theological debate about the rights and wrongs of retrospection for all cases will get us nowhere.

Absolutely spot on.

If you think about it, virtually everything in a Finance Act is retrospective, since most measures take effect from 5th April, and yet it only receives royal assent in late July.

[bananarepublic]

In my view the JR will revolve around 2 issues

1) What constitutes a warning.
That is could the 1987 legislation be construed as a warning? And further to this, if it was a warning at the time, was its force negated by HMRC's inability or unwillingness to articulate it between 2001 and 2008 given all the chances they had?

2) Willingness of judge to overturn primary legislation
The judge may be unwilling to overturn legislation voted through parliament. That is we may get sympathy for our predicament, HMRC may be condemned for their woeful dereliction of duty but the judge may decide that he is unable to overturn the will of parliament. Has leglislation been overturned in the courts before?

What force does parliamentary legislation have when it is illegal in the context of another law?

[Slobbo]

In my view the JR will revolve around 2 issues

1) What constitutes a warning.
That is could the 1987 legislation be construed as a warning? And further to this, if it was a warning at the time, was its force negated by HMRC's inability or unwillingness to articulate it between 2001 and 2008 given all the chances they had?

2) Willingness of judge to overturn primary legislation
The judge may be unwilling to overturn legislation voted through parliament. That is we may get sympathy for our predicament, HMRC may be condemned for their woeful dereliction of duty but the judge may decide that he is unable to overturn the will of parliament. Has leglislation been overturned in the courts before?

What force does parliamentary legislation have when it is illegal in the context of another law?

One would hope that it will be overturned given that it is Human Rights we're talking about.