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N2-12: Human rights
DUTY OF CONSISTENT INTERPRETATION
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Legislation to be interpreted compatibly so far as possible
"(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility." (HRA 1998, s.3)
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- Goes well beyond normal cannons of construction
"[93] The approach to section 3 is well established and not controversial on this appeal. As it was described by Lord Reed (with whom Lords Hodge, Lloyd-Jones, Sales and Stephens agreed) in In re United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [2021] UKSC 42, [2021] 1 WLR 5106 at paras 25 and 26:
"25. Section 3 of the Human Rights Act was interpreted in Ghaidan v Godin-Mendoza as imposing a remarkably powerful interpretative obligation, which goes well beyond the normal canons of statutory construction. The nature of the obligation was explained by Lord Nicholls of Birkenhead at para 30:
'the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation.'
Lord Nicholls added at para 32:
'the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is "possible", a court can modify the meaning, and hence the effect, of primary and secondary legislation.'
[26] The House of Lords accordingly held that section 3 required, where necessary, that the courts, and other public authorities, should give to provisions in statutes, including statutes enacted subsequent to the Human Rights Act, a meaning and effect that conflicted with the legislative intention of the Parliaments enacting those statutes. ..." (Mercer v. Secretary of State for Business and Trade [2024] UKSC 12)
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- Limits: cannot cause a provision to say the opposite
"[94] Nonetheless, there are limits to its use and not all provisions in primary legislation can be rendered Convention-compliant by the application of section 3(1) of the HRA. While this section gives the court a powerful tool with which to interpret legislation, it does not enable the court to change the substance of a provision from one where it says one thing into one that says the opposite; or as Lord Nicholls explained at para 33 in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, to "adopt a meaning inconsistent with a fundamental feature of legislation". Further, as Lord Rodger observed at para 115, "difficult questions may also arise where, even if the proposed interpretation does not run counter to any underlying principle of the legislation, it would involve reading into the statute powers or duties with far-reaching practical repercussions". (Mercer v. Secretary of State for Business and Trade [2024] UKSC 12)
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- Limits: causing identical words to mean inconsistent things goes against a fundamental feature
"[108] The general presumption that the same words used in different sections of the same statute have the same meaning can be rebutted where it is appropriate to do so. But to do so here would create a stark inconsistency between two identically worded provisions. It would also have the effect of conferring on limb (b) workers broader protection in relation to being subjected to a detriment short of dismissal for taking lawful industrial action than on employees in relation to dismissal for taking the same action. It would involve giving section 146 a significantly different meaning and scope to section 152 that would be inconsistent with the shared source and history of these provisions. The appellant's reliance on Hurst to support a conclusion that the two sections can legitimately be interpreted differently is misplaced. Even when interpreting legislation using section 3 of the HRA, the courts cannot and should not ignore the internal coherence of the legislation concerned. Where the new interpretation involves a significant departure from a fundamental feature of the primary legislation concerned, giving rise to possible ramifications that the court is ill-equipped to evaluate, the limits of section 3 are reached, and a Convention-compliant interpretation is not possible." (Mercer v. Secretary of State for Business and Trade [2024] UKSC 12)
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- Limits: cannot be used where there are policy choices as to how to make compliant
"[104] There are other policy choices that will have to be made if Parliament decides that legislative protection is required. The formulation currently proposed by the appellant would permit an employer to dismiss a "limb (b) worker" (that is to say, a worker who is not an employee but who nonetheless enjoys protection within the wider definition of "worker", including those engaged under contracts to perform work personally) for participating in lawful industrial action (there being no other prohibition on dismissing workers as opposed to employees); and would prohibit an employer from subjecting an employee to any detriment short of dismissal in circumstances where the employer would be lawfully permitted to dismiss that employee under section 238A of TULRCA. It follows that the introduction of legislation in this area would necessarily require consideration of whether the protection in section 146 should mirror (or should be more or less protective than) the complex but limited protection against dismissal on grounds of taking industrial action contained in sections 237 to 238A of TULRCA, thus permitting detrimental action short of dismissal in certain circumstances. Related to this, and depending on the formulation adopted, there may have to be consideration of whether limb (b) workers should enjoy greater protection for detriment by way of dismissal for lawful participation in a strike.
[105] For this reason, seeking to interpret section 146 using section 3 of the HRA in this way, is tantamount to judicial legislation. It fundamentally alters the scope and structure of the rights conferred by TULRCA, re-drawing the balance between workers' and employers' rights. There is no formulation that does not involve making a series of policy choices that may have far-reaching practical ramifications. This goes beyond the permissible boundary of interpretation." (Mercer v. Secretary of State for Business and Trade [2024] UKSC 12)
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DECLARATION OF INCOMPATIBILITY
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Power for court
"(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied—
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,it may make a declaration of that incompatibility." (HRA 1998, s.4)
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Does not affect validity or enforcement of legislation
"(6) A declaration under this section (“a declaration of incompatibility”)—
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made." (HRA 1998, s.4)
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Court does not include Tribunal​
"(5) In this section “court” means—
(a) the Supreme Court;
(b) the Judicial Committee of the Privy Council;
(c) the Court Martial Appeal Court;
(d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;
(e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal.
(f) the Court of Protection, in any matter being dealt with by the President of the Family Division, the Chancellor of the High Court or a puisne judge of the High Court." (HRA 1998, s.4)
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But superior court can make declaration on appeal from Tribunal
"[120] In my view this is not one of those cases where it is inappropriate to make a declaration of incompatibility. The ultimate legislative solution to the problem identified in this case may call for enquiry. Questions of policy will have to be addressed and evaluated, their practical ramifications considered, and a fair balance struck between all the competing interests at stake. But the existence of policy choices in the means of giving effect to the lawful strike rights protected by article 11 is a reason in favour of making a declaration of incompatibility, not refusing one. It is for Parliament to decide whether to legislate and, if so, the scope and nature of such protection. Moreover, resolution of these issues being pre-eminently a matter for Parliament, it may consider that section 146 is not after all the correct vehicle to remedy the problem. That too is not a reason for refusing a declaration in this case. No legislation is pending or envisaged in this area, that might make it premature to make a declaration. Indeed, I can discern no good reason for rejecting the remedial measure provided for by section 4 of the HRA by making such a declaration." (Mercer v. Secretary of State for Business and Trade [2024] UKSC 12)
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"[81] Finally, we turn to the question whether there should be a declaration of incompatibility under section 4 of the 1998 Act. This is a remedy not available to either of the tribunals who have considered this case. It would be directed not so much at section 146 as at TULRCA as a whole." (Mercer v. Alternative Future Group Limited [2022] EWCA Civ 379)
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QUASHING ADMINISTRATIVE ACTIONS
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Public authorities
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"(3) In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
...
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private." (HRA 1998, s.6(3), (5))
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Duty to act compatibly unless could not have acted differently
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right." (HRA 1998, S.6(1))
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- Act includes failure to act (except failing to legislate)
"(6) “An act” includes a failure to act but does not include a failure to—
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order." (HRA 1998, S.6(6))
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Unless could not have acted differently
"(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions." (HRA 1998, S.6(2))
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GENERAL APPROACH TO INTERPRETING RIGHTS​​
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- Not for domestic courts to develop law well beyond ECtHR principles
"[7] The Court of Appeal rejected similar submissions on the basis of the existing case law of the European court, and the approach to the application of the Human Rights Act 1998 laid down by this court in a number of recent authorities. In the panel's view they were right to do so. Whether the Convention law should be developed as the Appellant argues is a matter which can only appropriately be decided by the European court, as the authoritative interpreter of the ECHR. It is not the role of this court to develop the law under the Convention well beyond the principles established by the European court." (Begum v. Secretary of State for the Home Department [2024] UKSC 96)
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- Not for the domestic court to adjudicate within the margin of appreciation left by European Courts
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"[85]...As has been explained, the margin of appreciation is itself a principle of interpretation. When the European court finds that the contracting states should be permitted a margin of appreciation, it does not cede the function of interpreting the Convention to the contracting states, or enable their domestic courts to divide that function between their domestic institutions. Contracting states can of course create rights going beyond those protected by the Convention, but that power exists independently of the Convention and the Human Rights Act, is not dependent on the margin of appreciation doctrine, and is exercisable in accordance with long-established constitutional principles, under which law-making is generally the function of the legislature." (R (oao Elan-Cane) v. Secretary of State for the Home Department [2021] UKSC 56)
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ARTICLE 6: RIGHT TO A FAIR TRIAL
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"[1] In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
[2] Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
[3] Everyone charged with a criminal offence has the following minimum rights:
(a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b)to have adequate time and facilities for the preparation of his defence;
(c)to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e)to have the free assistance of an interpreter if he cannot understand or speak the language used in court." (Article 6)
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Common law right to fair trial not dependent on categorisation of right or interest
"[53] The second matter that calls for comment is that this appeal arises because of counsel's reliance on the right to a fair hearing guaranteed by article 6(1) of the Convention, to the exclusion of the right to a fair trial under our domestic law. The fundamental importance of that domestic right should not, however, be disregarded. The object of all legal proceedings, including a review under section 11 of the 2015 Act, is to do justice according to law. As Lady Hale observed in Secretary of State for the Home Department v MB [2007] UKHL 46; [2008] 1 AC 440 ("MB"), para 57, doing justice means not only arriving at a just result but arriving at it in a just manner. As she went on to say (ibid), the essential ingredients of a fair trial can vary according to the subject matter and nature of the proceedings. But the right to a fair trial is fundamental under our domestic law, as the House of Lords emphasised in MB (eg at paras 29–30, 34, 57 and 91) and in AF (No 3) [2010] 2 AC 269 (eg at paras 83 and 96), and does not depend on the categorisation of the rights or interests at stake in the proceedings as "civil rights or obligations" within the meaning of article 6(1)." (QX v. Secretary of State for the Home Department [2024] UKSC 26)
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"[36] As Lord Bingham of Cornhill stated in Johnson v Gore Wood & Co [2002] 2 AC 1, 22:
"The rule of law depends upon the existence and availability of courts and tribunals to which citizens may resort for the determination of differences between them which they cannot otherwise resolve. Litigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject of litigation before the court".
As that dictum indicates, individuals have a fundamental right of access to the courts for the determination of their civil rights. That right has been recognised by the common law for many centuries, and has been protected by statute from Magna Carta (parts of which remain on the statute book, in the version issued in 1297) to the Human Rights Act 1998 ("the Human Rights Act")." (Mueen-Uddin v. Secretary of State for the Home Department [2024] UKSC 21)
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General purpose of Article 6
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- Guarantees right of access to justice with safeguards to ensure fairness
"[60] Article 6 of the Convention guarantees the right of access to justice, with the necessary safeguards to ensure the fairness of the hearing. It is a key human right, not only because access to justice is a pillar of the rule of law, but also because it is the means by which a wide range of other human rights are made enforceable. As the European Court of Human Rights ("the European court") has said, in a democratic society the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of article 6(1) would not correspond to the aim and the purpose of that provision: Delcourt v Belgium (1970) 1 EHRR 355, para 25. In principle, as the court stated in another judgment, the rule of law implies (among other things) that an interference by the executive authorities with an individual's rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure: Klass v Germany (1978) 2 EHRR 214, para 55." (QX v. Secretary of State for the Home Department [2024] UKSC 26)
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Civil rights and obligations
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- Progressive broadening of scope without sharp-edged principles
"[61] Article 6(1) applies to "the determination of ... civil rights and obligations or of any criminal charge". Each of those concepts is recognised as having an autonomous meaning which is not dependent upon the characterisation given to them by the domestic legal system. So far as the determination of civil rights and obligations is concerned, certain proceedings clearly fall within the scope of the provision. For example, litigation between private individuals in the civil courts will normally do so. What may be less certain is whether proceedings other than those normally disposed of in the civil courts, or issues which fall outside the ambit of private law, also involve the "determination" of "civil rights and obligations". A progressive broadening of the scope of these concepts is apparent in the case law of the European court, but this has tended to develop from case to case without the articulation of sharp-edged definitions or principles. As Lord Dyson observed in R (G) v Governors of X School [2011] UKSC 30; [2012] 1 AC 167, para 67, the European court "adopts a pragmatic context-sensitive approach", with the result that it "is not possible to classify all the cases into neat hermetically-sealed categories"." (QX v. Secretary of State for the Home Department [2024] UKSC 26)
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- Human rights are civil rights
"[87] It is common ground between the parties that the reporting and appointments obligations imposed upon the claimant in the present case were sufficiently intrusive to constitute interferences with his rights under article 8 of the Convention, as given effect in domestic law by the Human Rights Act. It is also common ground that those rights are "civil rights" within the meaning of article 6(1). Since the review of the decision to impose those obligations will determine whether the interference with those rights was lawful, and will therefore be decisive of the claimant's civil rights, it is undisputed that article 6(1) applies to the obligations review in this case." (QX v. Secretary of State for the Home Department [2024] UKSC 26)
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Determination of those rights or obligations
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- Must be a legal dispute that is directly decisive of the right or obligation
"[62] Although the European court has not laid down clear tests for deciding whether proceedings involve the determination of civil rights or obligations, it can be said in broad terms that three conditions must be satisfied: (i) there must be a legal dispute (the French version of the Convention refers to contestations); (ii) a civil right or obligation must be in issue; and (iii) the outcome of the dispute must be directly decisive for the right or obligation concerned. Each of those conditions needs to be greatly expanded in order to reflect the case law of the European court more fully. Nevertheless, they encapsulate succinctly the issues that need to be considered. In the present case, there is undoubtedly a legal dispute. It is the second and third conditions which are in question." (QX v. Secretary of State for the Home Department [2024] UKSC 26)
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- Sufficient that dispute is potentially decisive
"[91]...Accordingly, again as counsel for the Secretary of State put it, an imposition review is only "potentially" decisive of any article 8 rights interfered with by subsequent obligations. That is clearly correct, but the question is whether being potentially decisive is enough to engage article 6(1).
[92] As explained earlier, proceedings must lead to a "determination" of civil rights or obligations in order for article 6(1) to apply. Where there are two distinct sets of proceedings, only one of which is immediately concerned with civil rights, it is clear that article 6(1) can apply to both sets of proceedings, provided they are sufficiently closely linked. The point was first established in the case law of the European court in Deumeland v Germany (1986) 8 EHRR 448, which concerned a complaint that proceedings before the German courts had violated the reasonable time guarantee in article 6(1). The question arose whether proceedings before the Constitutional Court should be taken into account in the computation of time. The Constitutional Court had no jurisdiction to rule on the merits of the applicant's case, but he had referred the proceedings to that court for it to consider various complaints which he had made about the proceedings before the ordinary courts. The European court, sitting in plenary, held that article 6(1) applied to the proceedings before the Constitutional Court, because "although it had no jurisdiction to rule on the merits, its decision was capable of affecting the outcome of the claim" (para 77). That approach has been followed in subsequent cases." (QX v. Secretary of State for the Home Department [2024] UKSC 26)
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Right to know the case against
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- Sufficient information to be able to give effective instructions (more than purely general assertions)
"[28]...Farbey J then determined a number of issues: [2020] EWHC 1221 (Admin); [2021] QB 315. In her judgment, she concluded that:
...
(6) In the circumstances of the present case, any application by the Secretary of State for permission to withhold material from the claimant has to be determined in accordance with the principles governing the disclosure required by article 6(1) as established in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269 ("AF (No 3)") (paras 82–84). These principles were summarised by Lord Phillips at para 59 of his speech in that case, in the context of persons made subject to control orders under the Prevention of Terrorism Act 2005 ("the 2005 Act"):
"... the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists of purely general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be." (QX v. Secretary of State for the Home Department [2024] UKSC 26)
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ARTICLE 8: RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
"[1] Everyone has the right to respect for his private and family life, his home and his correspondence.
[2] There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." (Article 8)
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ARTICLE 14: PROHIBITION ON DISCRIMINATION
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." (Article 8)
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A1P1: PROTECTION OF PROPERTY
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." (Protocol 1, Article 1)
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- Discriminatory treatment producing anomalous results contrary to ECHR and read down
"[115] We accept that although tax avoidance in a broad sense is a legitimate aim of the provision, the literal interpretation of section 167(2) fails on proportionality grounds because of the anomalous position it creates. The importance of bright lines as a justification for discriminatory treatment in the context of Article 14 was also considered by the Supreme Court in Brewster. Lord Kerr cited at [60] a passage from the joint dissenting judgment of Lord Sumption and Lord Reed JJSC in R (Tigere) v Secretary of State for Business, Innovation and Skills (Just For Kids Law intervening) [2015] 1 WLR 3820. They described the advantages of a clear rule as being capable of being applied accurately and consistently, simplifying administration to enable speedy decisions to be made particularly where there is a need to process a very large number of applications within a short time. Lord Kerr contrasted the position in Tigere with the position in the instant case where no thought was given to possible difficulties with administration that might arise if the surviving cohabitee nomination procedure was not included in the new scheme. Further the respondent had not been able to produce tangible evidence that there would be significant problems if the requirement was abandoned: “Vague suggestions as to the workability of the scheme and the advantages of actuarial predictions were made but these were not supported by evidence”: [62].
[116] In our judgment, it is impossible to justify the application of section 167(2) by reference to the residence or non-residence of a spouse who holds no interest in the company to which the gift is being transferred. Indeed, the application of the provision in circumstances where the taxpayer happens to have a relative living abroad strikes us as precisely the kind of provision at which Article 14 in conjunction with A1P1 is aimed. First, its application is entirely unexpected. No UK resident taxpayer transferring a gift to a company which is wholly owned by other UK resident shareholders would expect to have any difficulty with relying on section 165(4) because of the operation of section 167(2). They are unlikely to seek advice in relation to the issue. It would be a very sharp-eyed adviser who would think of checking with his client the tax residence status of all his parents and grandparents, children and grandchildren, brothers and sisters. It operates as a potential trap for taxpayers and their advisers when trying to plan for the future of their business.
[117] Secondly, its application is entirely arbitrary because there is no reason why that taxpayer should be treated differently depending on the answers to those questions.
[118] Thirdly it may well be the case that many taxpayers over the years have claimed holdover relief in their self-assessment, this has not been queried by HMRC and they have successfully relied on section 165 when in fact on the literal interpretation they were not entitled to do so. It is therefore a provision which in fact places a discretion in the hands of a taxing authority to choose in respect of which taxpayers’ self-assessments it will open an enquiry in the expectation that in many cases there will be a non-resident associate within the taxpayer’s wider family whom they can point to, thereby depriving that particular taxpayer of holdover relief. We are not of course suggesting that HMRC have, in this instance, behaved in such a manner or that they ever would. But this is a provision which is open to abuse by a taxing authority which might be so minded..." (Reeves v. HMRC [2018] UKUT 293 (TCC), Rose J and Judge Sinfield)
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- Lawful for HMRC to have policy re restoration of seized property, but each case must be considered on its own facts
"[40] We reject the contention that the Review Decision contravenes Article 1 of the First Protocol of the ECHR. In Lindsay v C&E Commrs [2002] EWCA Civ 267, the Master of the Rolls, giving the leading judgment, said:
"[55] Broadly speaking, the aim of the commissioners' policy is the prevention of the evasion of excise duty that is imposed in accordance with European Community law. That is a legitimate aim under art 1 of the First Protocol to the convention. The issue is whether the policy is liable to result in the imposition of a penalty in the individual case that is disproportionate having regard to that legitimate aim.
...
[64] I consider that the principle of proportionality requires that each case should be considered on its particular facts, which will include the scale of importation, whether it is a 'first offence', whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship that will be caused by forfeiture."
[41] The Border Force policy achieves a legitimate aim, e.g. the prevention of the evasion of excise duty. The Officer Summers had regard to the policy and was not fettered by it. The policy states that vehicles in cases falling within paragraph 2b would ordinarily be returned for a fee equivalent to 100% of the revenue or the trade value of the vehicle, if lower. In this case, Officer Summers applied a reduction of 50% to the fee. In this context, the Review Decision clearly cannot be said to have been disproportionate." (Wierzbicka v. Director of Border Revenue [2024] UKFTT 566 (TC), Judge Jennifer Lee)
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- Failure to distinguish smuggling for personal use from commercial smuggling not proportionate
"[55] Broadly speaking, the aim of the Commissioners' policy is the prevention of the evasion of excise duty that is imposed in accordance with European Community law. That is a legitimate aim under Article 1 of the First Protocol to the Convention. The issue is whether the policy is liable to result in the imposition of a penalty in the individual case that is disproportionate having regard to that legitimate aim. More specifically, did it have that effect in the case of Mr Lindsay?
...
[64] The Commissioners' policy does not, however, draw a distinction between the commercial smuggler and the driver importing goods for social distribution to family or friends in circumstances where there is no attempt to make a profit. Of course even in such a case the scale of importation, or other circumstances, may be such as to justify forfeiture of the car. But where the importation is not for the purpose of making a profit, I consider that the principle of proportionality requires that each case should be considered on its particular facts, which will include the scale of importation, whether it is a 'first offence', whether there was an attempt at concealment or dissimulation, the value of the vehicle and the degree of hardship that will be caused by forfeiture. There is open to the Commissioners a wide range of lesser sanctions that will enable them to impose a sanction that is proportionate where forfeiture of the vehicle is not justified.
[65] I do not think that it would be impractical to distinguish between the truly commercial smuggler and others. The current regulations shift the burden to the driver of showing that he does not hold the goods 'for commercial purposes' when these exceed the quantity in the Schedule. In a case such as the present the driver importing for family or friends should be in a position to demonstrate that that is the case if called upon to do so (see the comments of Lord Woolf CJ in Goldsmith v Custom and Excise Commissioners [2001] 1 WLR 1673 at pp 1679-70).
[66] Unfortunately, in the present case and, I suspect, in others, the Customs Officers have drawn no distinction between the true commercial smuggler and the driver importing goods for family and friends. Because of the confusion to which I referred at the outset, the cars of both have been treated as subject to almost automatic forfeiture. Review Officer Florence appears to have understood that the Commissioners policy rendered it irrelevant whether or not Mr Lindsay's story was true and equally irrelevant the value of his car and the effect that its deprivation would have on him. I believe that she correctly interpreted the policy.
[67] For these reasons, I consider that the Tribunal was correct to decide that Mrs Florence's decision could not stand because she had failed, when reaching it, to have regard to all material considerations. To that extent the Commissioners' appeal must be dismissed. It remains to consider whether the terms of the relief directed by the Tribunal fell within their jurisdiction." (Lindsay v. CCE [2002] EWCA Civ 267, Lord Phillips MR)