BN66 - Round 2 (Court of Appeal)

[normalbloke]

Heads we win, tails you lose...

What really scares me is point 13 of Davis' statement

"....litigation was likely to take some time to complete...."

".....the result of any litigation is inherently uncertain."

and using that as a justification for retrospective legislation!!!

Er, excuse me... so if
a) any legal challenge is going to take 'some time' (not defined) or
b) if the outcome may not be in our (HMRC's) favour,

then forget the original legislation - we'll just introduce a newly worded retrospective law so's we're guaranteed a win.

As one of the MP's said in the original debate on Padmore when referring to HMRC.. "Heads we win in the courts and tails you lose in the Finance Bill".

And we call ourselves a democracy, founded on Natural Justice. My ar*e. I'm really hoping three senior judges won't back up the feeble reasoning given by Davis, but I am not holding my breath.

[smalldog]

What really scares me is point 13 of Davis' statement

"....litigation was likely to take some time to complete...."

".....the result of any litigation is inherently uncertain."

and using that as a justification for retrospective legislation!!!

Er, excuse me... so if
a) any legal challenge is going to take 'some time' (not defined) or
b) if the outcome may not be in our (HMRC's) favour,

then forget the original legislation - we'll just introduce a newly worded retrospective law so's we're guaranteed a win.

As one of the MP's said in the original debate on Padmore when referring to HMRC.. "Heads we win in the courts and tails you lose in the Finance Bill".

And we call ourselves a democracy, founded on Natural Justice. My ar*e. I'm really hoping three senior judges won't back up the feeble reasoning given by Davis, but I am not holding my breath.

But their strategy didnt work, they arent guaranteed a win, it is going through litigation, unless Ive missed something. What did they expect us and MP to roll over and just say "oh go on then, heres the cash", like F***

[normalbloke]

But their strategy didnt work, they arent guaranteed a win, it is going through litigation, unless Ive missed something. What did they expect us and MP to roll over and just say "oh go on then, heres the cash", like F***

True... but its not a level playing field any more. Its down in black and white as a law now. This litigation is a far more difficult process than arguing the previous law in front of the Commissioners. Thats not to say we wont win... but it will be that much more difficult.

[smalldog]

True... but its not a level playing field any more. Its down in black and white as a law now. This litigation is a far more difficult process than arguing the previous law in front of the Commissioners. Thats not to say we wont win... but it will be that much more difficult.

Agreed, but I hope unlike Parker the 3 COA judges see it for what it was, a cynical attempt to backdoor something they knew they were unlikely to win through the normal judicial process

[DonkeyRhubarb]

True... but its not a level playing field any more. Its down in black and white as a law now. This litigation is a far more difficult process than arguing the previous law in front of the Commissioners. Thats not to say we wont win... but it will be that much more difficult.

You beat me to it.

I could even imagine this devious calculation taking place at the time ie.

(1) Litigating against the scheme = almost certain defeat.
(2) Retrospective (primary) legislation = extremely difficult to get overturned.

Not hard to see why they chose option (2).

The playing field is now on the side of a Mountain with us at the bottom.

[Toocan]

This is my theory of what went down and the timescales.

1st Nov 2007 - HMRC meet with Tax Counsel

From FOI, I know this was the first time retrospection was broached. I also know from FOI that the meeting was subject to legal privilege so lawyers were involved.

My guess is that Counsel advised HMRC they had no prospect of success through litigation. I also believe it was Counsel who came up with the idea of retrospective legislation. Whether HMRC were warned about possible legal challenges, or not, we will probably never know.

Nov 2007 - Martin Brooks requests the papers on the 1987 legislation from the HMRC Library.

Brooks worked in HMRC's internal Solicitors Office, and was probably responsible for drafting the clauses of the Bill. Simon Davis, who is also named in the BN66 press release, was the Assistant Director responsible for BN66.

Nov/Dec 2007 - HMRC informed HM Treasury of the proposal for retrospective legislation

Feb 2008 - HMRC writes to Montpelier, and some scheme users, informing them of their (new) view that 1987 applies to the scheme

7th Mar 2008 - Chancellor of the Exchequer approves the measure

12th Mar 2008 - BN66 press release is published

Based on this FoI release, it would appear that Brooks/Davis misled not only Ministers/Parliament but the Courts too. The release explicity states the purpose of the 1987 legislation, but their purpose is quite different.

[OnYourBikeGB]

You beat me to it.

I could even imagine this devious calculation taking place at the time ie.

(1) Litigating against the scheme = almost certain defeat.
(2) Retrospective (primary) legislation = extremely difficult to get overturned.

Not hard to see why they chose option (2).

The playing field is now on the side of a Mountain with us at the bottom.

Agreed. I'm hoping that what we will get out of this is new chinks in their argument, heavy criticisms etc. But there is one area that your digging has turned up I thought might be interesting. If I recall correctly, at the JR, HMRC moved rapidly away from Padmore, instead they focused on the right of Parliament to legislate being supreme. But their basis for doing so on us was that that they are clarifying the will of Parliament. However, your documents clearly show that it is not the will of Parliament to enact this type of legislation retrospectively. So the basis of their justification is wrong. I hope Elvin can convey that better than I can.

[DonkeyRhubarb]

Agreed. I'm hoping that what we will get out of this is new chinks in their argument, heavy criticisms etc. But there is one area that your digging has turned up I thought might be interesting. If I recall correctly, at the JR, HMRC moved rapidly away from Padmore, instead they focused on the right of Parliament to legislate being supreme. But their basis for doing so on us was that that they are clarifying the will of Parliament. However, your documents clearly show that it is not the will of Parliament to enact this type of legislation retrospectively. So the basis of their justification is wrong. I hope Elvin can convey that better than I can.

The supremacy of Parliament is a bit of a conundrum.

A1P1 ECHR confers a wide margin of appreciation on member States in the field of taxation.

Does this mean that anything passed by Parliament is, by definition, within the margin of appreciation? Or are their limits?

I don't know the answer to this but, if there are limits, it's certainly a very grey area.

The JCHR felt that s58 was an arguable breach of A1P1. Parker in the HC was unequivocal to the contrary.

Who is right? Who knows, but next month we might come closer to finding out.

[Lazylobster]

Had a IM chat with a fellow I used to work with. He has told me that he has received a letter from hector and chums saying they may request an interview with him This is in relation to the recent raid / arrests at the Montp offices. He was on another scheme which goes back many years.

This is not related to our scheme. Just some interesting news.

A new tactic?

LL

[swede]

However, your documents clearly show that it is not the will of Parliament to enact this type of legislation retrospectively. So the basis of their justification is wrong. I hope Elvin can convey that better than I can.

Presumably Elvin does hear about what gets written here from time to time? It would be a shame to let such good points fall by the wayside....