HM Inspector of Taxes v Dextra Accessories Ltd & Ors

This is an appeal by the Revenue from an order made by Neuberger J on 15 April 2003 dismissing its appeal from a decision of the Special Commissioners (Dr John Avery-Jones CBE and Mr A. Edward Sadler) dated 3 September 2002. Although additional issues were raised before the Special Commissioners, the only issue before the judge was as to the application to the facts of the instant case of section 43 of the Finance Act 1989, and in particular the definition of the expression ‘potential emoluments’ in section 43(11)(a).

In broad terms, section 43 is concerned with the time at which an employer, in computing its liability for corporation tax, may make a deduction in respect of emoluments provided or to be provided to his employees. Again in broad terms, the effect of section 43(1) and (2) is that where an emolument is not paid within nine months after the end of the period of account in which it was ‘allocated’, no deduction in respect of that emolument may be made by the employer in computing its liability for corporation tax until the end of the period of account in which the emolument is actually paid. Thus the broad effect of section 43(1) and (2), where those subsections apply, is to postpone a deduction in respect of an emolument until there is a matching taxable receipt of the emolument by the employee. Section 43(11) extends the operation of section 43 to ‘potential emoluments’ as there defined.

The respondents to the appeal are six members of a group of companies known as the Caudwell Group. The Caudwell Group carries on the business of selling mobile telephones and mobile airtime: a business which was started in about 1989 and which has since been developed and expanded with very considerable commercial success.

By a Settlement dated 18 December 1998 and made between Caudwell Holdings Ltd (the holding company of the Group) as settlor and Regent Capital Trust Corporation Ltd, a Jersey trust corporation (defined as ‘the Original Trustee’), as trustee, Caudwell Holdings Ltd set up an employee benefit trust (an EBT). I will refer to this Settlement hereafter as “the EBT”.

Each of the respondents is and has at all material times been a ‘Participating Company’, as defined in the EBT. The class of beneficiaries under the EBT includes present and future employees of Participating Companies, their spouses, co-habitees, children and dependants.

In December 1998 the respondents made substantial payments into the EBT. They sought to deduct such payments in computing their corporation tax liability for the accounting period in which the payments were made (the calendar year 1998). The Inspector accepted that the payments represented ‘money wholly and exclusively laid out or expended for the purposes of [the respondents’] trade’ within the meaning of section 74(1)(a) of the Income and Corporation Taxes Act 1988 (“the 1988 Act”), but he concluded they were ‘potential emoluments’ within section 43(11) and he accordingly disallowed the deductions. The respondents appealed to the Special Commissioners.

Before the Special Commissioners, the Revenue put forward alternative arguments for disallowing the deductions, including an argument based on the Ramsay principle (as explained by the House of Lords in MacNiven v. Westmoreland Investments Ltd [2001] STC 273).

The Special Commissioners allowed the respondents’ appeals. They held that the contributions to the EBT were not ‘potential emoluments’, as defined in section 43(11)(a). They also rejected the Revenue’s alternative arguments, including its argument based on the Ramsay principle. They found the EBT to be a genuine trust, with an independent trustee exercising an unfettered discretion.

The Revenue appealed to the High Court on the section 43 issue only.

Neuberger J dismissed the Revenue’s appeal, albeit he differed from the Special Commissioners as to the true construction of the definition of ‘potential emoluments’ in section 43(11)(a). The judge’s judgment is now reported at [2003] STC 749.

The Revenue appeals to this court. Permission for a second appeal was granted by Chadwick LJ on the papers on 28 May 2003.

Section 43 is in the following terms (so far as material):

The recital to the EBT is in the following terms:

Clause 1(1) of the EBT contains a list of definitions. ‘Beneficiaries’ means all or any of the persons specified in the Third Schedule. ‘Employee’ means a person described in paragraph 1 of the Third Schedule. ‘Participating Company’ includes companies within the Caudwell Group. ‘The trustees’ means Regent Capital Trust Corporation Ltd and other the trustees or trustee for the time being of the EBT. ‘The Trust Period’ means, for present purposes, 100 years (a valid perpetuity period under Jersey law, which is the proper law of the EBT: see clause 2).

Clause 4 of the EBT contains the trusts of income and capital. Clause 4(2) provides as follows (so far as material):

Clause 4(7) provides that at the end of the Trust Period the Trust Fund shall be held on trust for such of the beneficiaries as are then living in such shares and proportions and generally in such manner as the trustees shall determine, and in default in equal shares absolutely. Clause 4(8) contains an ultimate trust in favour of charity.

Clause 5 contains very wide discretionary powers of appointment over capital and income exercisable during the Trust Period.

The Revenue accepts that the trusts and powers in the EBT are not limited to the provision of ‘emoluments’ to employees, however widely the word ‘emoluments’ is to be construed. On the other hand, there is an issue between the parties as to the scope for applying trust funds otherwise than in the provision of emoluments: Mr Brennan QC (leading Mr Hugh McKay, for the Revenue) submits that the the scope for such application is in practice limited, whilst Mr Thornhill QC (for the respondents) submits that it is virtually limitless.

Clause 11 of the EBT confers on the trustees very wide powers of investment, including (in paragraph 5 of the Regulations contained in the First Schedule to the EBT) power to make loans to beneficiaries.

Clause 12(2) of the EBT provides that every discretion vested in the trustees shall be an absolute and uncontrolled discretion. Clause 16(7) contains a power to remove a trustee. Clause 20 excludes the settlor and participating companies from benefit. Clause 23 provides that the EBT is irrevocable.

The Third Schedule to the EBT (which lists the classes of beneficiaries) is in the following terms (so far as material):

After setting out the relevant provisions of section 43, the Special Commissioners say this (in paragraph 6 of their decision):

In paragraph 7 of their decision the Special Commissioners refer to an additional argument which had been advanced by Mr Brennan (but which is not advanced on this appeal) relating to the creation of sub-funds by the trustee under a power in the behalf in the EBT.

The Special Commissioners continue (in paragraph 8 of their decision):

In rejecting the Revenue’s argument based on the Ramsay principle, the Special Commissioners made the following findings of fact (among others):

that the documents were to be accepted at face value (paragraph 16);

that employees were not free to do what they liked with funds in the EBT, even funds which had been allocated to sub-funds in their individual names (paragraph 16);

that loans from the EBT to employees were genuine loans and not disguised distributions (paragraph 16);

that the highest the case could be put by the Revenue was that the trustee was likely to comply with any reasonable request that was for the benefit of the beneficiaries (paragraph 16);

that the trustee was not a cipher which did what it was told (paragraph 16);

that the controlling shareholder/directors had no control over the trustee (paragraph 18);

that even the shareholders’ power to remove the trustee would not ensure that a successor trustee would carry out their wishes (paragraph 18);

that if the controlling shareholders fell out, there was no reason to suppose that loans might not be called in by the trustee (paragraph 18); and

that having a trustee which was independent of the group was an important feature of the EBT, establishing its credibility in the eyes of employees (paragraph 19).

In paragraph 17 of his judgment, the judge identifies the issue for decision, as follows:

In paragraph 21 of his judgment the judge breaks that issue down into three sub-issues, as follows:

As to the third of those sub-issues, the judge concludes (in paragraphs 25 and 26 of his judgment) that the relevant date is the expiry of the nine-month period prescribed by section 43(1)(c).

As to the second sub-issue, the judge says this (in paragraphs 27 and 28 of his judgment):

The judge then turns to the first sub-issue, saying this (in paragraphs 29 and 30 of his judgment):

The judge gives three reasons for this conclusion. He expresses his first reason in paragraphs 30 and 31 of his judgment, as follows:

As his second reason, the judge draws support from authorities (Peat v. Gresham Trust Ltd [1934] AC 252 and Re Cutts [1956] 1 WLR 728) relating to the true construction of the expression ‘with a view to giving such creditor …. preference over other creditors’ in section 44(1) of the Bankruptcy Act 1914.

The judge expresses his third reason in paragraphs 34 to 40 of his judgment, as follows:

The judge then turns to the application of section 43 to the facts of the instant case. In paragraphs 42 to 45 of his judgment, he says this:

The judge accordingly dismissed the Revenue’s appeal.

By its grounds of appeal, the Revenue contends that the judge ought to have held that the effect of the definition of ‘potential emoluments’ in section 43(11)(a) is to postpone the deductibility of the payments until such time as emoluments are paid, on the footing that the funds subject to the EBT are held by the trustee ‘with a view to any of the realistic potential outcomes which were within the terms of [the EBT] and the payment of emoluments was one such outcome’; and that the judge was wrong to construe the expression ‘with a view to….’ as meaning ‘held with the dominant intention of ….’. In this connection it is contended that decisions as to the true construction of section 44 of the Bankruptcy Act 1914 are of no assistance in construing section 43. It is further contended that the judge failed to have regard to the likelihood that the funds subject to the EBT would, in all probability, be paid out as emoluments, and that in this context the word ‘emoluments’ should be given a wide meaning.

For the Revenue, Mr Brennan repeats the submission as to ‘fiscal symmetry’ which he made to the Special Commissioners and to the judge. He points out that if (as the respondents contend) section 43(2) does not apply to the payments into the EBT, a corporation tax deduction will be available to a contributing company at a time when there is no matching taxable receipt of an emolument by the employee; whereas if (as the Revenue contends) the contributions fall within section 43(2), there will be a matching taxable receipt of an emolument and ‘fiscal symmetry’ will thus be achieved.

Mr Brennan submits that the clear purpose of section 43 is to prevent a Schedule D taxpayer (including a company within the charge to corporation tax) from achieving a deduction for tax purposes of moneys which are set aside for the purpose of providing emoluments for employees but which are not so applied within nine months of the end of the current period of account; and that that purpose is achieved by postponing the deduction until (in effect) the emoluments are paid or treated as paid.

As to the meaning of the word ‘emolument’ he cites EMI Group Electronics v. Coldicott [2000] 1 WLR 540 CA at 543F-544H (per Chadwick LJ), where the relevant authorities are discussed. He points out that section 43 does not require an emolument to be a taxable emolument, so that even if the payment is made at a time when the recipient employee is outside the charge to income tax, the payment will still retain its character as an emolument.

Turning to section 43(11)(a), he submits (as he submitted below) that the payments in question are ‘potential emoluments’, in that they are ‘amounts .... held by an intermediary, with a view to their becoming relevant emoluments’. ‘Relevant emoluments’, he points out, may be allocated to specific offices or employments (subs. (10)(a)) or ‘generally in respect of offices or employments’ (subs. (10)(b)). He criticises the Special Commissioners for failing to take account of subsection (10)(b).

The critical question, he submits, is whether the sums in the hands of the trustee are ‘amounts … held… with a view to their becoming relevant emoluments’ within section 43(11)(a).

Mr Brennan submits that the Special Commissioners erred in law in concluding that, on the true construction of section 43(11)(a) and on the facts of the instant case, the relevant ‘view’ is that of the contributing company. He submits that in the instant case the relevant ‘view’ is to be ascertained by a consideration of the terms of the EBT, by which the trustee is bound. He accepts that during the trust period (100 years from the date of the EBT) the trust fund subject to the EBT may be dealt with in a way which does not give rise to emoluments, but he points out that under the default trusts declared in clause 4(7) of the EBT the trust fund (or what remains of it) is held on trust for the beneficiaries then living. He submits that in the instant case the funds in question were held by the trustee with a view that they would be allocated generally, or (subject to discretion) specifically, in respect of emoluments: hence they were ‘potential emoluments’ within section 43(11)(a).

It is nothing to the point, he submits, that (if the Revenue is right) to the extent that funds are applied by the trustee in a manner which does not constitute the provision of emoluments to employees, no Schedule E deduction will ever be available to the contributing company. That, he says, is no more than the inevitable consequence of the contributing company’s decision to part with its money on terms that such money may be applied entirely at the discretion of the trustee in accordance with the EBT. He submits that the fact that the EBT is drawn so widely as to give rise to a possibility that contributions may be applied otherwise than in the provision of emoluments to employees does not take the contributions outside the definition of ‘potential emoluments’ in section 43(11)(a).

Alternatively, he submits that even if the Special Commissioners were correct in concluding that ‘held by an intermediary with a view to …’ means (in effect) ‘paid by the contributing company for the purpose of....’, there was no warrant for the Special Commissioners’ implicit assumption that such purpose must be the sole or exclusive purpose of the contributing company. He submits that it is enough to satisfy the ‘purpose’ test (if that be the correct test) that it was expressly within the contemplation of contributing companies that funds in the EBT might be applied in the provision of emoluments. So long as that was a realistic potential outcome, the conclusion must follow that the funds were ‘held … with a view to’ that outcome.

In any event, Mr Brennan submits, on the facts it was quite plainly the intention and purpose of the Caudwell Group in setting up the EBT that contributions to the EBT would be applied, largely if not entirely, in providing emoluments to employees. In support of this submission, he referred us to a number of contemporary documents relating to the setting up of the EBT which contain references to employees being rewarded for their performance by the provision of bonuses or other benefits.

Turning to the judge’s judgment, Mr Brennan submits that the test of ‘principal or dominant intention’ formulated by the judge, besides being difficult to apply, imports an unwarranted restriction on the natural meaning of the statutory words.

He further submits that no assistance is to be gained from decisions on the true construction of section 44 of the Bankruptcy Act 1914. He points out that that section required an examination of a transaction which had already occurred, in circumstances where third party rights might be adversely affected. In contrast, he submits, the question whether funds are held by the trustee ‘with a view to’ payment of emoluments does not require that any particular transaction be scrutinised, for none has yet taken place. The statutory phrase, he submits, is descriptive of a state of affairs: in the particular circumstances of the instant case, it requires only scrutiny of the framework of legal obligation and discretion pursuant to which the funds in question are held. A decision (yet to be made by the trustee) may or may not give rise to a particular outcome; but the funds paid by the respondents are, he submits, held by the trustee ‘with a view to’ all or any of the realistically possible outcomes.

However, should this court uphold the ‘principal or dominant intention’ test applied by the judge, Mr Brennan submits that the judge erred in concluding that that test was not satisfied in the instant case. He submits that the judge should either have concluded on the basis of the documentary material before him that the overwhelming likelihood was that funds in the EBT would be applied in the provision of emoluments; or he should have remitted the matter to the Special Commissioners to determine what was the principal or dominant purpose for which the funds were held.

Finally, Mr Brennan submits that if (contrary to his earlier submissions) section 43(11)(a) is ambiguous, recourse may be had to Hansard. In this connection he relies on a report of a debate in House of Commons Standing Committee G on 23 May 1989, in the course of which the Minister (Mr Norman Lamont), when moving an amendment introducing what became section 43(11)(a), stated that the purpose of the amendment was to ensure that the new rules applied:

Mr Thornhill submits that judge’s ‘principal or dominant intention’ test is the correct test, and that the judge was right to conclude that on the facts of the instant case that test is not satisfied.

He reminds us that liability to tax under Schedule E was not limited to emoluments: he refers us to a number of provisions in the 1988 Act creating a liability to tax under Schedule E on receipts not constituting emoluments from employment.

He submits that the judge’s test is no more difficult to apply than the ‘main purpose’ test which appears time and again in taxing statutes. Reference to Hansard is inappropriate, he submits, since there is no ambiguity in section 43(11)(a).

He points out that there are two limbs to section 43(11)(a). The first limb relates to ‘amounts or benefits reserved in the accounts of an employer’; the second to ‘amounts or benefits …. held by an intermediary’. Each of those limbs is governed by the words ‘…. with a view to their becoming relevant emoluments’. He submits that the first limb covers a case in which there is a potential liability to pay emoluments which may not arise, but where the amount of the liability (if it arises) can be accurately determined. He gives the example of a bonus which is dependent on a profit target being met. He submits that this indicates that the words ‘with a view to their becoming relevant emoluments’ carry a high probability of emoluments resulting.

As to the second of the two limbs, Mr Thornhill submits that this limb broadly covers the case where a third party is entrusted with payment of emoluments. He submits that in the instant case it is necessary, in order to determine whether the payments in question were ‘potential emoluments’, to consider not only the terms of the trust instrument but also the purposes of the settlor in making the contribution in question (since the trustee is entitled to have regard to the settlor’s expressed wishes) and the purposes in the mind of the trustee. It is also legitimate and necessary, he submits, to have regard to the manner in which the trustee has carried out its functions in the period between the making of the payments and the expiry of the nine-month period of grace allowed by section 43(1)(c).

He submits that common sense indicates that the expression ‘with a view to ….’ requires a high degree of likelihood of a particular outcome and not merely the existence of a number of possible outcomes; and that no such high degree of likelihood existed on the facts of the instant case. In support of this submission he gives a number of examples of payments which were within the power of the trustee to make which would not constitute ‘emoluments’. As noted earlier, he submits that the scope for the trustee to make distributions otherwise than by way of ‘emoluments’ is in practice virtually limitless.

He also relies on the meaning of the expression ‘with a view to ...’ in section 595(1) of the 1988 Act (charge to tax in respect of sums paid by an employer under a retirement benefits scheme). In that context, he submits, the expression ‘with a view to ....’ is effectively synonymous with ‘for the purpose of ....’.

Mr Thornhill stresses that if the Revenue is right as to the application of section 43 in the instant case, funds in the EBT which are applied by the trustee otherwise than in the provision of emoluments will never be deductible for Schedule D purposes. He endorses the judge’s description of such a result as “somewhat Draconian” (see paragraph 35 of the judgment, quoted earlier).

In sum, Mr Thornhill submits that the Revenue is seeking to erect an edifice on section 43(11) which the subsection cannot bear.

Given that funds subject to the EBT funds may be applied otherwise than in the provision of emoluments, it is not necessary for the purposes of this appeal to assign a precise meaning to the word ‘emoluments’ in section 43. In my judgment it suffices to quote the general guidance given by Lord Radcliffe in Hochstrasser v. Mayes [1960] AC 376 at pp.391-392 where he said this, with reference to a charge to tax under Schedule E imposed by section 156(2) of the Income Tax Act 1952 on profits or gains from employment:

Section 43 was introduced at the same time as the change in the basis of taxation under Schedule E to a receipts basis. As noted earlier, the effect of section 43(1) and (2) is to postpone deductions by employers in respect of emoluments to which section 43 relates until such emoluments are paid – i.e. until they are received (see section 43(12) and section 202B of the 1988 Act). The inference must be that in enacting section 43 Parliament was concerned that, in relation to emoluments falling within the section, and subject only to the nine-month ‘period of grace’ provided for by section 43(1)(c), no deduction for tax purposes should be available to an employer in respect of such an emolument until a matching liability to tax had accrued on receipt of that emolument by the employee. To that extent, Parliament was plainly concerned to achieve the ‘fiscal symmetry’ to which Mr Brennan referred in argument.

The issue which falls for determination on this appeal, however, is whether the contributions made by the respondents to the EBT in December 1998 fell within section 43. That in turn depends on whether those contributions, when received by the trustee, constituted ‘potential emoluments’ as defined in section 43(11)(a), as being ‘amounts …. held by an intermediary with a view to their becoming relevant emoluments’.

It is rightly accepted that the trustee of the EBT is an ‘intermediary’ for this purpose, so that the issue boils down to whether the contributions were held by the trustee ‘with a view to their becoming relevant emoluments’.

Whilst the placing of a gloss on statutory words may be useful as illustrating the idea which the words express (see per Lord Radcliffe at Hochstrasser v. Mayes (above) at p.391), care must in my judgment be taken not to fall into the trap of substituting the gloss for the statutory words and thereby attempting in effect to rewrite the statute. With respect to the Special Commissioners and the judge, it seems to me that that is what they have done in the instant case. The expression which Parliament has used in subsection 43(11)(a) is ‘with a view to ...’. Had Parliament intended to say ‘for the sole purpose of ...’ (as the Special Commissioners held) or ‘with the principal or dominant intention of ....’ (as the judge held), no doubt it would have done so. Further, the judge’s test of a ‘principal or dominant intention’ seems to me to be unworkable when applied to a discretionary trust such as the EBT, since the trustees of such a trust will not in the normal course have any settled intention, let alone any dominant intention, as to how or in whose favour they will exercise their discretionary powers in the future. I would therefore respectfully reject the differing approaches of the Special Commissioners and of the judge.

It seems to me that three general points may be made about the expression ‘with a view to ....’. In the first place, it is a less specific expression than ‘for the sole purpose of ....’ or ‘with the principal or dominant intention of ....’; and (as the judge rightly acknowledged in paragraph 28 of his judgment) it suggests a degree of flexibility of meaning and application. That said, the word ‘view’ plainly connotes some element (albeit undefined) of purpose, intention or contemplation. Secondly, in the particular context of section 43(11)(a) (and in contrast to the similar expression in section 44(1) of the Bankruptcy Act 1914) it is looking to the future: the relevant ‘view’ is a view as to a particular future event, viz. ‘potential emoluments’ becoming ‘relevant emoluments’. Thirdly, the expression ‘with a view to’, when coupled with the word ‘potential’, indicates to me that the future event in question is one which may or may not occur: it is enough that it should have the potential to occur.

The general flexibility of the expression ‘with a view to ...’ is confirmed, in my judgment, by the fact that it applies to each of the two quite different situations described in section 43(11)(a): that is to say the situation in which an employer creates a reserve in its accounts, and the situation in which funds are held by an intermediary. (The comma after the word ‘intermediary’ makes it clear that it applies to each of these two situations.)

In the first of the two situations, the only party concerned is the employer, who has decided to create the reserve in its accounts. So to the extent that ‘view’ includes an element of purpose, intention or contemplation, it can only refer to the employer’s ‘view’. On the other hand, in the second situation that may not be the case. Where the intermediary is a mere agent or bare trustee, then once again it will be the employer’s ‘view’ which counts. On the other hand, where, as in the instant case, the employer has disposed of the funds in question to the trustee of a discretionary settlement (being a genuine discretionary settlement, as the Special Commissioners have found the EBT to be), the question whether those funds are ‘potential emoluments’ can only be answered, in my judgment, by a consideration of the terms on which the funds are held. In so far as the employer has any ‘view’ relevant to this question, it can only be that the funds would be applied by the trustee, in its absolute discretion, in accordance with those terms.

This also illustrates that it is not possible to lay down any hard and fast rule, applicable in all cases, as to how the expression ‘with a view to ....’ is intended to apply to any given set of facts. Each case will turn on its own facts in this respect.

Returning to the facts of the instant case, it seems to me that the purposes or intentions of the trustee (to the extent that it has any) as to how and in whose favour it will or may exercise its discretionary powers in the future cannot be a relevant consideration in determining whether the funds in question are held ‘with a view to .... their becoming potential emoluments’. In the instant case, having regard to the findings of fact made by the Special Commissioners the sole criteria in making that determination, as it seems to me, are the terms on which the funds are held by the trustee; that is to say, in the first instance at least, the EBT itself.

It follows that whilst I do not disagree with the judge’s conclusion (in paragraph 25 of his judgment) that the relevant date for applying the statutory test for ‘potential emoluments’, at least where the employer’s accounts for the accounting period in question have not been drawn up by the end of the nine-month ‘period of grace’, is the end of that period (the contrary has not been argued on this appeal), I do not fully accept Mr Thornhill’s submission that the manner in which the trustee has exercised its powers in the period since the contribution in question was made is a relevant consideration. It seems to me that it will only be a relevant consideration to the extent that, by the exercise of its fiduciary powers, the trustee has effectively altered the terms on which the funds in question are held.

On that footing, I turn to the crucial question whether the fact (accepted by the Revenue) that the EBT empowers the trustee to apply funds subject to the EBT otherwise than in the provision of emoluments has the effect of taking contributions to the EBT outside the definition of ‘potential emoluments’ in section 43(11)(a).

In my judgment, to reach that conclusion would be to place an unwarranted restriction on the unspecific and flexible expression which Parliament has chosen to use. I accept Mr Brennan’s submission that, on the facts of the instant case, the expression ‘with a view to ....’ is apt to embrace the whole range of realistic possibilities available to the trustee, acting in accordance with the EBT.

I fully recognise that this conclusion means that if and to the extent that the trustee applies funds otherwise than in the provision of emoluments no Schedule E deduction in respect of such application will ever be available to the contributing company. But, as Mr Brennan submitted, that is the inevitable result of the arrangement which the respondents have, for their own proper purposes and on expert advice, elected to set up. Moreoever it has also to be borne in mind that if the respondents were right the result would be that Schedule E deductions in respect of applications by the trustee in the provision of emoluments would not be postponed, and Parliament’s intention in that respect frustrated.

In reaching my conclusion I derive no significant assistance from a consideration of the expression ‘with a view to ....’ in section 595 of the 1988 Act, or of the similar expression in section 44(1) of the Bankruptcy Act 1914. Apart from the fact that the contexts in which those expressions are used differ from that of section 43(11)(a), each of those sections is concerned with transactions which have already taken place, whereas, as pointed out earlier, section 43(11)(a) is looking to future transactions which may or may not take place.

Nor, in reaching my conclusion, have I found it necessary to have recourse to Hansard. I do not regard section 43(11)(a) as being sufficiently ambiguous to justify taking such a course.

I would allow this appeal.

I agree and only add that:

I agree with the judgment of Jonathan Parker LJ.