BN66 - Court of Appeal and beyond

[seadog]

The purpose of a Judicial Review

This is a crucial point and, moreover, it is not a "fight" with Parliament at all since Parliament gave the courts power to scrutinise it's own legislation by virtue of the Human Rights Act.

Perverse as it sounds, the courts are actually respecting the will/supremacy of Parliament by challenging Parliament.

There is only one Act of Parliament that the courts cannot question, and that is the Human Rights Act itself.

Mummery in his Shiner judgement said

"The proper function of judicial review proceedings is to determine whether there has been an abuse or excess of power by a public authority"

Knowing the full background to the whole BN66 & S58 issue can anyone honestly argue that HMRC have not abused their power.

[DonkeyRhubarb]

I would like to put forward something very controversial.

HMRC's behaviour is irrelevant.
The alleged misleading of Parliament is irrelevant.

None of it matters.

I know what you're probably thinking. DR has finally lost his marbles. But bear with me.

Up to now, our contention has always been that Parliament was not given the full facts of the case. In effect they were misled, or if you prefer lied to.

However, consider this.

Suppose Parliament had been given the full facts and still passed it, which would have been a definite possibility with such a large Labour majority. (After all they ignored stinging criticism from the Law Society, CIOT etc.)

Would that have made s58 ok?

What I am driving at is that it doesn't matter whether Parliament knew what they were voting for or not. The real issue is whether s58, as it stands, is compatible with the Human Rights Act.

This brings me on to what I believe will be the main question the Supreme Court will have to consider.

Is a 6-year retrospective anti-avoidance provision within the margin of appreciation afforded under article 1 protocol 1 of the European Convention on Human Rights?

[screwthis]

I would like to put forward something very controversial.


This brings me on to what I believe will be the main question the Supreme Court will have to consider.

Is a 6-year retrospective anti-avoidance provision within the margin of appreciation afforded under article 1 protocol 1 of the European Convention on Human Rights?

And has this not been answered with a resounding yes thus far?
What would be different in the SC?

[DonkeyRhubarb]

And has this not been answered with a resounding yes thus far?
What would be different in the SC?

As the highest court in the land, I don't believe the SC can answer "yes" without considering the wide ranging implications ie. the precedent that such a judgment would set.

Notice I phrased the question "a 6-year retrospective anti-avoidance provision", not s58.

If they uphold the CoA then "Huitson -v- HMRC" becomes case law and it will be virtually impossible to challenge any future retrospective anti-avoidance provisions in the courts.

They will abhor the idea of ruling in our favour but the alternative might be even less palatable.

[johnnyguitar]

Case law

But we've been saying this about the last 2 rounds - 'they need to consider the wider ramifications' - but the last 2 courts didn't and I've seen nothing to convince me that the SC will be any different.
If we go in with the same angle/argument as last time we can expect the same verdict.

[Tax_shouldnt_be_taxing]

As the highest court in the land, I don't believe the SC can answer "yes" without considering the wide ranging implications ie. the precedent that such a judgment would set.

Notice I phrased the question "a 6-year retrospective anti-avoidance provision", not s58.

If they uphold the CoA then "Huitson -v- HMRC" becomes case law and it will be virtually impossible to challenge any future retrospective anti-avoidance provisions in the courts.

They will abhor the idea of ruling in our favour but the alternative might be even less palatable.

DR's point is subtle but relevant and the only court that could rule on that is the SC. It's not about s.58 or us or tax avoidance. On the grander scale it's about if left to stand "Huitson -v- HMRC" would stand in case law on all grounds including HR for ANY AND ALL retrospective tax legislation, even that drafted with such an appalling and deceptive approach as BN66.

So long after everyone affected by BN66 jumped off a cliff if we lost and nobody remembers a certain Donkey or HMRC officials who dreamed this stuff up have retired with a gold plated pension and Forums are replaced with mind meld, "Huitson -v- HMRC" will forever remain and can come up in any and all litigation cases where the hounds of hell want to apply retrospection for any purpose that suits and use it as not a gold standard ruling, but the absolute ruling that trumps all else including HR. If BN66 was defined as the "nuclear option" on us, imagine what the legal ramifications could be on any and all parts of society. That's certainly in the public interest.

Strange that A1P1 states "wide margin of appreciation", yet in practice, not principle, the ruling in favour of BN66 actually translates into "a 6 year retrospective tax measure can be applied". Don't need to say why, to whom and for what since the statement in bold is what a ruling in favour of BN66 actually produces in case law. And I think this is what DR is pointing to. s.58 does not stand as such, that is mere legislation. It's the application of it which via case law provides for the statement highlighted.

Anyone reading this Forum who is not affected by BN66 or who have called us tax dodgers and the like, might want to consider that point since you might want to get behind these tax dodgers as we're the only ones who stand between where we all are today and where everyone could be after a ruling in favour of BN66.

And frankly if I was on the outside of all of this looking in and calling us all tax dodgers and saying "you got what you deserved" and the like, I might given the above consider things differently since what the case law result means is what it says on the tin. There would not be quotes in court about s.58, there would be as there always have been quotes of "A -v- B" and that should frighten the life out of everyone. Anything you do in the present needs to be frozen for 6 years in case the "6 year law" is applied. So every financial transaction you undertake could be at risk without let or hindrance of being looked at 6 years in the future and taxed backward with interest. You might as well as get rid of HMRC and SA and simply have an accountant check the coffers every 6 years and say "need some money, pay now due to "Huitson -v- HMRC". Might as well give up any notion of keeping your tax bill as legally low as you can. Doesn't matter who you are. Tax avoidance? Just the tip. Retrospection just became law and the ECHR aint going to stop it and even opting out of HRA won't stop it. It's here to stay for the benefit of everyone.

[DonkeyRhubarb]

But we've been saying this about the last 2 rounds - 'they need to consider the wider ramifications' - but the last 2 courts didn't and I've seen nothing to convince me that the SC will be any different.
If we go in with the same angle/argument as last time we can expect the same verdict.

These quotes are taken directly from the Supreme Court website.

"The impact of Supreme Court decisions extend far beyond the parties involved in any given case, shaping our society, and directly affecting our everyday lives."

"The Supreme Court, as well as being the final court of appeal, plays an important role in the development of United Kingdom law."

"The Supreme Court concentrates on cases of the greatest public and constitutional importance; maintains and develops the role of the highest court in the United Kingdom as a leader in the common law world"

This court is not just one up from the Court of Appeal. It's in a different league altogether.

[centurian]

What I am driving at is that it doesn't matter whether Parliament knew what they were voting for or not. The real issue is whether s58, as it stands, is compatible with the Human Rights Act.

WDRS

It's fine to have a punt with the "HMRC were very naughty" line - and maybe it might have worked out (it may still do). But it was always (and still remains) an outside shot.

[centurian]

do we think we could get 100,000 to sign a petition, then this could get BN66 debated in house of commons.

Well as of yesterday, the only petition to get 100,000 votes is one that calls for retrospective action - to strip those who rioted of their benefits. Seems that a reasonable chunk of the wider public are pretty cool with the idea of retrospective legislation.

Mind you, it will be interesting when this goes to the next phase. If it gets knocked back because "we couldn't possibly do this - it's retrospective - and that would be wrong/illegal..."

[DonkeyRhubarb]

Well as of yesterday, the only petition to get 100,000 votes is one that calls for retrospective action - to strip those who rioted of their benefits. Seems that a reasonable chunk of the wider public are pretty cool with the idea of retrospective legislation.

Mind you, it will be interesting when this goes to the next phase. If it gets knocked back because "we couldn't possibly do this - it's retrospective - and that would be wrong/illegal..."

It doesn't actually say that it should be retrospective.

Convicted London rioters should loose all benefits. - e-petitions

By the way, what does it mean to loose all benefits?