BN66 - the road to Judicial Review

[DonkeyRhubarb]

JCHR bearing on the JR

Let's hope the Judge in our case gives similar weight to the JCHR's findings and Timms' failure to provide the information they asked for.

This case also involved retrospection, hence the JCHR's intervention.

Judgement in the Judicial Review of Highly Skilled Migrant Workers vs. Home Office
http://www.bailii.org/ew/cases/EWHC/Admin/2008/664.html

The Home Office eventually acceeded to the Court's decision and reversed the changes.

Note that the JR cannot overturn legislation, the Court can only rule it incompatible with convention rights. It's then down to the Government to respond.

[Slobbo]

What does that effectively mean to us? Could the revenue say "stuff em" and continue with the persecution?

[helen7]

Note that the JR cannot overturn legislation, the Court can only rule it incompatible with convention rights. It's then down to the Government to respond.

I was sent a torrid of abuse and accused of being a HMRC mole when I mentioned that particular piece of information a few months back.

Legally; is their anything to stop them just ignoring the findings of the JR, as they did to the JCHR?

[DonkeyRhubarb]

Legally; is their anything to stop them just ignoring the findings of the JR, as they did to the JCHR?

I am pretty sure they can't ignore a Court but I'll try and confirm the situation.

[ASB]

I am pretty sure they can't ignore a Court but I'll try and confirm the situation.

If the JR does result in a declaration of incompatibility then the government can (and often have) ignored it. The EC cannot FORCE the UK government to change the law to be compatible - parliament is still sovereign. However, we would be in breach of our treaty obligations if we failed to change the law (wouldn't be the first time). The EC are not particularly good at chasing, the ultimate end game would be that we would have to leave the EC if we absolutely refused to amend our legislation. Normally these issues seem to eventual resolve themselves (in about 10 years).

[DonkeyRhubarb]

Declaration of incompatibility

Yes, in theory the Government can ignore it, but I don't think it's something we should be worrying about.

Lets take things one step at a time, and win the JR first.

http://www.justice.gov.uk/news/sp150609a.htm

"But the Act quite explicitly imposes duties and pressures on government and Parliament to respect the Convention and its jurisprudence. By section 19 any minister sponsoring a Bill has to certify, on the face of the Bill, whether in their opinion the contents of the Bill are compatible with the Convention.

And if a declaration of incompatibility is made by the courts [under section 4], while it is possible for government and Parliament to ignore it, in practice the moral and political pressure which flows from such a declaration requires them to react to it. There is nothing wrong with that – it is a good thing. And it is right that ministers’ decisions are invigilated by the courts."

http://findarticles.com/p/articles/m...n7307900/pg_20

According to the Human Rights White Paper (UK), a judicial declaration of incompatibility is part of an inter-institutional dialogue. A declaration of incompatibility `will almost certainly prompt the Government and parliament to change the law' (160) and `the Government would have to consider, and in most cases [it] would consider the position pretty rapidly.' (161) There is likely to be intense public interest in response to a declaration of incompatibility and strong public pressure to change the law. The government and the legislature will not be able to ignore the situation because the victim of the violation retains the right of recourse to the European Court of Human Rights under the ECHR.

[Tax_shouldnt_be_taxing]

JR outcome and HMRC response

What does that effectively mean to us? Could the revenue say "stuff em" and continue with the persecution?

Folks, a good friend of mine who knows a thing or two about law reckons as follows:

We have the Executive (Government) who pass legislation
We have the Legislature (Parliament) who monitor the Executive
We have the Soveriegn (Monarch) who passes Royal Assent
We have the Judiciary (Courts) who interpret and rule on conflicts between common law and legislation and incompatability with EU law.

The JR cannot rule S58 to be illegal as it was passed by the first 3 legal bodies. However, it can rule it as incompatible on the basis of conflict. The Executive can ignore the Judiciary but in cases such as HR and EU law and if there is clear breach, they would be nuts to do so as in effect the Executive is giving 2 fingers to the Judiciary and the EU at the same time. Further, a JR can rule what the Executive must do to ensure that incompatability is removed and this will often involve the Legislature. If the JR goes in our favour and a clear breach is determined and recommendations made to the Executive to remedy any conflict it is most unlikely that the Executive would simply press on and come knocking. This opens up the risk of damages under the Law of Equity (hopefully to the tune of around £200M). So don't worry. Not even NuLabour want to throw the Election that much!

[DonkeyRhubarb]

FOI responses

HMRC appear to have decided not to invoke the "vexatious" option, and are now responding to the requests.

http://www.whatdotheyknow.com/body/hmrc

[ASB]

HMRC appear to have decided not to invoke the "vexatious" option, and are now responding to the requests.

http://www.whatdotheyknow.com/body/hmrc

There is of course a huge difference between them being vexed and you being being vexatious. A subtletly usually lost on HMRC.

[BolshieBastard]

Just been notified by those lovely people at HMRC that Im due a tax rebate of over £100 .

Then those miserable bastards at HMRC also notified me as I 'owe' them something under BN66, the rebate is being 'witheld' until I make repayment of all monies owed

Is the hundred quid automatically written off against the monies 'owed' thereby reducing my 'debt' or is it just kept in a dark room somewhere in the bowels of HMRC towers never to see the light of my account?