ECH8026 - Working the Case: Human Rights Act 1998 (HRA) - Background

On 2 October 2000 the Human Rights Act came into force. From that date the provisions of the European Convention on Human Rights (ECHR) were incorporated into UK law. A citizen’s rights under the ECHR can now be enforced directly in the UK courts.

The provisions of ECHR apply to companies as well as individuals.

King v UK (ECtHR 13881/2004)

The European Court of Human Rights in Strasbourg gave their final decision in November 2004.

Following King the Department has accepted that a limited number of our penalties are “criminal” for the purposes of Article 6 of the ECHR.

The only penalties involved are those which are based on a maximum of 100% of the tax/NICs difference or the tax/NICs underpaid. We do not accept that any other of our penalties are subject to Article 6.

The most common examples of penalties caught by Article 6 are

• error penalties charged under TMA70/S98A(4) and
• failure penalties under TMA70/S98A(2)(b)

but any penalty with the same basis of calculation is caught by Article 6.

The classification of “criminal” within Article 6 is for the purposes of ECHR only. It does not make a case criminal for all usual UK domestic purposes and the penalties remain a civil proceeding.

Further information on King v UK can be found in the Enquiry Manual (EM1401) and in the summary of the decision at TCR39/04.

A person subject to proceedings involving Article 6 ECHR has

• the right not to self-incriminate and
• an entitlement to a fair and public hearing within a reasonable time.

For penalty cases where Article 6 may apply you must be careful not to infringe a person’s rights. It is therefore important that as soon as there is evidence of a liability to a penalty you

• advise employers that they do not have to co-operate with our compliance check and of the consequences of such actions and
• issue factsheets EC/FS3 and EC/FS4, and
• work cases without unreasonable delay and
• tell employers that we will issue early penalty determinations if
• • a contentious Commissioners hearing is necessary, or
  • they request it and it is appropriate

See ECH8028 for further guidance

(This text has been withheld because of exemptions in the Freedom of Information Act 2000)

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(This text has been withheld because of exemptions in the Freedom of Information Act 2000)