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Brexit minister defines new strategy to bypass contractual terms
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Legal purism: A new, all-purpose defence strategy

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Lord Frost believes that the law is such an ass that it can be superseded by accusations of "legal purism".

16th Jun 2021
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Last week, the man who, when accepting his peerage should surely have designated himself Lord Frost of Brexit, might inadvertently have changed the legal landscape forever.

Although the United Kingdom’s increasingly tetchy negotiations with the European Union might not initially appear to have much direct relevance to our own efforts to subdue terriers from HM Revenue and Customs, read on.

Frosty (as he is reputedly known to his intimates) attacked the European Commission for its unwillingness to accept his Prime Minister’s proposition that the UK would ignore the terms Boris Johnson had negotiated and signed up to in the agreement between the parties when the United Kingdom left in the European Union.

His Lordship’s rationale was that by demanding that our kingdom should apply the legal terms of a contract the European Commission was guilty of “legal purism”. Apparently, such an approach is wholly unreasonable and unacceptable.

Exciting precedents

The precedents that this sets are exciting, to say the least. To pick a quick example, if she likes the look of a Rolls-Royce in the local showroom, presumably there’s nothing to stop even a respectable accountant from driving off loudly calling through the window that any attempt to claim payment for the car would merely be a rather crass example of “legal purism”.

Closer to home, if any client accused an adviser of failing to carry out their duties in accordance with a letter of engagement, the immediate defence must be that such wholly unwarranted assertions represent “legal purism”. Mind you, that could meet with a puristic rejoinder that any claim for fees set down in the engagement letter would be met with little more than laughter and, perhaps, a photo of the perpetually smirking Frosty.

In case readers think that Lord Frost is alone in advancing such a concept, his colleague, Cabinet Secretary Michael Gove, recently attacked the High Court decision in the case brought by Jolyon Maugham and his Good Law Project which condemned the awarding of a Covid-related PR contract to old friends (shared with that beacon of reliability Dominic Cummings) in similar fashion.

We are accountants rather than lawyers, but it might still come as something of a surprise to discover that senior ministers view the High Court’s decision to apply the law as it is written is unacceptable because it is “purist” .

This writer would like to pay tribute to barrister and Prospect Magazine contributor George Peretz, who succinctly identified the weakness in the legal purism argument. “The obligation of governments to comply with the law is fundamental in a democratic society. The law sets out the instructions that we, through parliament, have given our governments. If a government treats those rules as nothing but guidance, or ignores them completely, then we are no longer living in a democracy and there is no rule of law.”

However, if that is the way the government wishes the law to be interpreted in future, then this will undoubtedly provide our profession with numerous opportunities to capitalise for the benefit of our clients and, at times, even our own practices.

Practical applications

The most practical application of this new legal precedent is likely to be of benefit to anyone who specialises in negotiating tax liabilities of HMRC.

To begin at the beginning, some of us may decide that entering large amounts of income on tax returns is unnecessary and, if challenged by a tedious tax inspector, accuse them of “legal purism”.

Further down the chain, many of our number like nothing more than the cut and thrust of defending clients against demands for tax that we believe to be unreasonable.

In the past, with the assistance of the legal profession, we have generally taken the approach that it is necessary to read the law in detail, construe it and prove that officers of HMRC have interpreted it incorrectly. This has often been a successful means of boosting the bank balances of grateful clients and, by extension, those that represent them.

In future, if such an approach is not going as well as it should, due to stubborn negativity on the part of the department’s representatives, then we all know what to do - play the Frost card.

Replies (3)

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By mumpin
17th Jun 2021 13:43

I've got no problem with the government's position. We were in a trading block. There was a democratic decision to leave it. Said trading block is trying to screw us over on a massive scale (by annexing part of our country).
You must be able to see the difference between this and statute tax law or stealing a Roller.
Boris got an 80 seat majority and I think you're in denial.
Top man Frosty! Give them hell.

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By Paul Crowley
18th Jun 2021 13:05

How does any reasonable person deal with unreasonable others.
If you are dealing with a Prig, use Prig reasoning

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By Hugo Fair
21st Jun 2021 19:35

“The law sets out the instructions that we, through parliament, have given our governments.”
What tosh!

Laws may be reviewed and voted upon by Parliament (and the House of Lords which is an unelected chamber), but the exact wording is NOT set by a nebulous "us" (which is presumably meant to indicate the general population).
The shape & direction of legislation may still be predominantly be set by Ministerial diktat (despite the increasing influence of pressure groups and personal contacts), but the scope and overarching 'rules' are defined by (unelected) civil servants ... and the ensuing drafting/revisions owes at least as much to individual 'experts' (again unelected) as to parliamentary oversight.
[I should know having done a lot of, unpaid, work in this capacity ... in the hope of improving the efficacy and practicability before it all becomes set like concrete, but you only have my (honest) word that I'm untainted by ulterior motives.]

So the general population does NOT set out any instructions that we have given our governments ... and any attempt to dress up the reality as some paragon of democratic procedure is itself a wholly (and I presume deliberate) deception!

This doesn't mean that all laws are irrelevant and should be ignored wholesale in all circumstances, but we all accept that individuals and corporate bodies can challenge them - which by definition must mean opposing them if not merely seeking clarification.
I can see no reason why a national government should be constrained from taking equivalent actions ... and, as any student of history can tell you, confrontation & disputes between nations are often resolved not just in the court.

In that context, inter-national negotiation (involving threats and posturing by both sides) is the modern methodology (far preferable to warfare) adopted when muddling towards a solution!

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