The functions of the Commissioners generally are limited to
determining appeals and it is only within this limited field that
they can give effect to rights under the European Convention on
Human Rights. They have no powers to award damages or restitution
for breach of convention rights and a taxpayer who wishes to claim
damages for breach of a convention right will have to commence
proceedings in a court with the powers to do so.
If it is alleged that the exercise of that discretion is
unlawful owing to a breach of a convention right the Commissioners
may only review the exercise of a discretion by HMRC where they are
given specific jurisdiction by statute. So where HMRC has refused
to exercise an ESC in favour of a taxpayer who then appeals against
the resulting amendment, assessment etc on the basis that there has
been a breach of his Convention right not to be discriminated
against, the Commissioners can only determine that appeal in
accordance with statute. Judicial Review is the taxpayer’s
route of objection to the non-application of the ESC (see
AH1950).
