Commentary

A4.591 Human rights legislation and penalties

Administration and compliance

A4.591 Human rights legislation and penalties

A4.591 Human rights legislation and penalties

Introduction

The European Convention on Human Rights and Fundamental Freedoms ('ECHR') was incorporated into domestic law by the Human Rights Act 1998 ('HRA 1998'). This means that the ECHR, as interpreted by the European Court of Human Rights ('ECtHR') in Strasbourg, is binding upon the courts and tribunals and HMRC, albeit subject to certain important caveats (see below).

The UK negotiated a Withdrawal Agreement and left the EU on 31 January 2020 (referred to as 'exit day') with an 11-month implementation period which ended at 11pm (GMT) on 31 December 2020. Brexit has no automatic impact on the HRA 1998, or the incorporation of the ECHR provided for by the HRA 1998. This means that individuals in the UK can continue to rely on the protections provided by the HRA 1998 and the ECHR. See A2.302.

HRA 1998 has presented the opportunity for a variety of challenges to penalties on grounds that would not have been possible on the basis of tax legislation and procedure as previously applied.

Criminal classification for purposes of Article 6

A persistent issue has been whether ECHR Article 6 (right to a fair trial) is engaged in relation to tax penalties. For tax penalties to fall within Article 6's ambit, they must be classified as 'criminal'. The classification of a penalty by the domestic regime is not conclusive for this purpose. Under the jurisprudence of the ECtHR, a tax penalty is criminal in nature if:

  1.  

    (a)     the domestic classification is that of

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