BN66 - Court of Appeal and beyond

[DonkeyRhubarb]

Consider the following fanciful hypothetical scenario.

Suppose HMRC had bribed MPs to vote for s58.

Would that have any bearing on whether the end result (s58 as enacted) complied with HR conventions and EU treaties?

I don't believe it would, and so it would not be the concern of a court hearing a judicial review.

It sounds crazy doesn't it but sadly I don't think it matters how s58 came about.

[moira under the stairs]

I'm probably being really stupid, but is this, therefore, what it boils down to?

1) HMRC knew about the scheme and recognised it's legality, but then...
2) ...embarked on a 6 year campaign of intimidation and unsubstantiated threats until...
3) ...a QC turned up and said "Why don't we change the meaning of this 1987 text?", but...
4) ...HMRC called it a 'clarification' so as to slip it under the radar of...
5) ...Parliament, who made it retrospective Law.
6) A Court Hearing was then held, solely to answer the question...
7) ... "Is it fair for the Government to treat its citizens in this way?" and the Judge replied...
8) ... "Yes, that's perfectly OK".

Pretty much in a nutshell !!!

[DonkeyRhubarb]

I'm probably being really stupid, but is this, therefore, what it boils down to?

1) HMRC knew about the scheme and recognised it's legality, but then...
2) ...embarked on a 6 year campaign of intimidation and unsubstantiated threats until...
3) ...a QC turned up and said "Why don't we change the meaning of this 1987 text?", but...
4) ...HMRC called it a 'clarification' so as to slip it under the radar of...
5) ...Parliament, who made it retrospective Law.
6) A Court Hearing was then held, solely to answer the question...
7) ... "Is it fair for the Government to treat its citizens in this way?" and the Judge replied...
8) ... "Yes, that's perfectly OK".

More or less, except the question in 7 was "is s58 compatible with A1P1 ECHR?", although this seems to have been lost in a fog of fairness and social policy.

[BrilloPad]

Suppose HMRC had bribed MPs to vote for s58.

I can't imagine MPs are bribable as they are all upright honest citizens. The opposite of HMRC in fact.

[normalbloke]

Is this possible or feasible?

The courts can only consider whether the end result (the enacted legislation) complies with the conventions and treaties.

It is largely immaterial how it came to pass.

Only Parliament itself, or the likes of the Parliamentary Ombudsman, can scrutinise whether the legislature was misled.

It is not for the courts to ascertain whether MPs were in full possession of the true facts and knew what they were voting for.

So assuming the worst possible end scenario in the current litigation process, would it be then possible to appeal to the Parliamentary Ombudsman? I know through FOI requests and statements made in court that there is prima facie evidence to back up the assertion that Parliament (Jane Kennedy especially) was misled. Or would this be a non-starter? I suppose it depends on the quantity (and quality) of the evidence that is available?

[DonkeyRhubarb]

So assuming the worst possible end scenario in the current litigation process, would it be then possible to appeal to the Parliamentary Ombudsman? I know through FOI requests and statements made in court that there is prima facie evidence to back up the assertion that Parliament (Jane Kennedy especially) was misled. Or would this be a non-starter? I suppose it depends on the quantity (and quality) of the evidence that is available?

Not an "appeal" as such but a complaint. First it would be necessary to exhaust the HMRC 3-stage complaints procedure, then ask an MP to refer it to the ombudsman (only MPs are allowed to do this).

This wouldn't stop HMRC enforcing collection and I'm not sure that even if the ombudsman found in our favour there would be much in the way of restitution. Like the Human Rights committee, the ombudsman stikes me as a bit toothless.

The other difficulty is that we are dealing with an organisation (HMRC) which is institutionally dishonest. They would have no qualms about lying to the ombudsman and twisting the facts to make sure nothing sticks.

So, yes it's possible but I'm not sure what it would achieve.

[seadog]

Not an "appeal" as such but a complaint. First it would be necessary to exhaust the HMRC 3-stage complaints procedure, then ask an MP to refer it to the ombudsman (only MPs are allowed to do this).

This wouldn't stop HMRC enforcing collection and I'm not sure that even if the ombudsman found in our favour there would be much in the way of restitution. Like the Human Rights committee, the ombudsman stikes me as a bit toothless.

The other difficulty is that we are dealing with an organisation (HMRC) which is institutionally dishonest. They would have no qualms about lying to the ombudsman and twisting the facts to make sure nothing sticks.

So, yes it's possible but I'm not sure what it would achieve.

HMRC would have difficulty in misleading the Ombudsman as they did parliament because of all the evidence which has come to light not only in the court case but in our own investigations.

Also rememeber that the Ombudsman would be able to look at all the internal documents of meetings and QC's advice which has been denied to us in FOI requests or on grounds of Legal Privilege.

I am sure that any independant observer looking at all that documentation could only conclude that HMRC's conduct had been unacceptable.

A severe censure by the Ombudsman would have a powerful influence on MP's if we tried to get S58 amended to limit any retrospection of S58 to March 2008. That was the date of the announcement of BN66 and that date would be in line with parliamentary Rees rules for introducing retrospective legislation.

A complaint to the Ombudsman can only come about after a pursuing the formal HMRC complaint procedure followed up by a referral from an MP.

[DonkeyRhubarb]

A complaint to the Ombudsman can only come about after a pursuing the formal HMRC complaint procedure followed up by a referral from an MP.

Timing would be key.

Because of sub judice I don't think the Ombudsman could consider a complaint until the legal case has run its course. This may also be an issue if any appeals are being heard in the tax courts.

Remember, when a complaint is referred to the Ombudsman one of the first things they will do is notify the respondent (HMRC). All HMRC would have to do is cite sub judice and that would kill it stone dead.

After exhausting the HMRC complaints procedure, I suspect there is probably a time limit for complaining to the Ombudsman.

[LisaContractorUmbrella]

In order to make a complaint about HMR&C (after you have exhausted their own internal processes) you have to go through the adjudicator - if that does not resolve the problem you can then go to the Ombudsmen. However, the adjudicator cannot consider complaints about policy or matters in law and I would suspect the same may be true of the ombudsman.

[DonkeyRhubarb]

In order to make a complaint about HMR&C (after you have exhausted their own internal processes) you have to go through the adjudicator - if that does not resolve the problem you can then go to the Ombudsmen. However, the adjudicator cannot consider complaints about policy or matters in law and I would suspect the same may be true of the ombudsman.

There's no doubt you need to know precisely what you're doing before you lodge such a complaint.

It would be all too easy some considerable way down the road for HMRC/Adjudicator/Ombudsman to deem a complaint inadmissible due to sub judice or some other technicality.

I know from my own experience with FOI that HMRC are masters of evasion and obfuscation. Nailing jelly to a wall is a walk in the park compared to pinning these buggers down.