Boughton & Ors (R on the application of) v HM Treasury

This is an adjourned application for permission to appeal coupled with renewed application for permission to issue proceedings for judicial review. At an oral inter partes hearing Collins J refused permission on the ground that the claim had no arguable possibility of success.

The application invokes, in the context of general taxation imposed by central government, Article 9 of the European Convention on Human Rights, which relates to “Freedom of thought, conscience and religion.”

The First Protocol of Article 1 relates to the “Protection of Property”

There are 7 applicants forming a group of tax-paying pacifists (“The Peace Tax Seven”) from a variety of religious and philosophical backgrounds. They object to the tax, which is collected from them by central government, being paid into a single fund and then used partly for military purposes. They wish to test, by reference to article 9, the lawfulness of the continuing failure, or the refusal on 27 January 2005, of the respondent HM Treasury

On 19 October 2005 Sedley LJ adjourned the application for permission to appeal to the full court. He considered that it was arguable, contrary to the conclusion reached by Collins J, that article 9(1) of the Convention was engaged. Having regard, however, to what he described as the “formidable obstacle” presented by article 9(2), he gave directions on 21 November 2005 for the service of skeleton arguments with evidential propositions, which the parties considered could be established by evidence, if permission for judicial review were granted and evidence then filed. This procedure would enable the court to hear the application “from end to end”, so that, if the permission application failed, the case would be over, and, if it succeeded, the court could decide on the next step.

The main issue is whether the impact of the decisions of the Strasbourg authorities on Article 9 in the context of general taxation is such that the application for judicial review has no reasonable prospect of success.

Mr Fordham, who appeared for the applicants, emphasised that the case raises a question of public importance: whether the United Kingdom taxation system is compatible with article 9. The applicants conscientiously object to war in general. They also object to funding it by payment of their taxes as morally equivalent to waging war. The evidence of the applicants makes the objection eloquent in their own words: fiscal conscription to fund war compels them to do something which is against their religion and conscience; they have to hand over money to be used to fight illegal wars; they are compelled to contribute to war and actively to engage in it by their taxes; they wish to re-direct their taxes towards peaceful rather than military purposes.

The applicants do not, however, seek any exemptions from paying tax or any reductions in their tax bills. On the contrary, they wish to pay their tax liabilities in full, but they cannot do so consistently with their consciences as long as no separate fund exists into which they can place a portion of their tax, where it cannot be used to pay for war or weapons. They object to paying into a single fund partly destined for military purposes and say that a separate fund, such as a Peace Tax Fund, would resolve their dilemma. It was for HM Treasury to justify its refusal to do what it reasonably could to assist the applicants in this dilemma.

The failure to set up a separate peace fund is, Mr Fordham forcefully argued, an interference with the applicants’ genuine and fundamental article 9 right to manifest their religious or conscientious beliefs. They are placed in the invidious position of having to choose between obeying the law of the land and the dictates of their conscience. The interference with their article 9 rights falls to be justified by HM Treasury, which refuses to set up a separate fund, denies that article 9 is engaged and disputes that it is required to justify its refusal to act on the suggestion of a special fund or account.

In defence of its position HM Treasury, for whom Mr Jonathan Crow appears, relies, as did Collins J, on the decisions of the Strasbourg authorities, in particular the decision of the European Commission of Human Rights in C v. United Kingdom (1983) 37 DR 142 (Application No. 10358/83) dismissing as inadmissible an application based on similar arguments over 20 years ago. The wording of that decision was almost identical to that of the Commission’s decision in X (Ross) v. United Kingdom (1982) 6 EHRR 558 (Application No.10295/82).

Anticipating the way in which the point was very recently put by Lord Bingham in the landmark case of R (Begum) v. Headteacher and Governors of Denbigh High School [2006] UKHL 15 at paragraph 24, HM Treasury argues that, even if it be accepted that the Strasbourg authorities have erred on the side of strictness in rejecting complaints of interference with the Article 9 right in this area, there is a “coherent and consistent” body of Strasbourg authority, which the English courts must take into account. It demonstrates that interference with the Article 9 right is not established in a case of this kind.

The applicants’ response is that C v. United Kingdom is based on flawed reasoning, that it is out of step with subsequent Convention jurisprudence on Article 9 and that it does not represent a clear and constant line of authority standing in the way of their application for judicial review.

Collins J accepted the genuineness and sincerity of the applicants’ beliefs and recognised the importance of the arguments advanced, but concluded that, even if he were to grant permission, “in the end this claim would fail” and had “no arguable possibility of success.”

He based his decision on the preliminary issue whether Article 9(1) was engaged. The arguments before him did not touch on justification under Article 9(2) and he expressed no views on it.

As to engagement of the Article 9 right, Collins J cited C v. United Kingdom in which the applicant, who was a Quaker, contended that compelling him to contribute to expenditure for armaments, rather than peaceful purposes, was an outrage to his conscience and contrary to the requirements of the manifestation of his belief through practice. The manifestation in practice of his Quaker beliefs required him to oppose recourse to force in the settlement of disputes and not to support directly or indirectly weapon procurement, weapon development and other defence related expenditure. It was therefore his case that it was a necessary part of the manifestation of his Quaker belief in practice and in observance that 40% of his income tax be diverted to different, peaceful purposes.

Collins J quoted a passage from the ruling of the Commission that the claim was inadmissible. I shall quote the passage direct from the report cited on this appeal, which is slightly different from, and longer than, the quotation in the judgment of Collins J.

Collins J considered Mr Fordham’s criticisms of the Commission’s reliance on the Arrowsmith case. He also considered his criticisms of C v. United Kingdom in the light of the approach to the engagement of article 9 in the seminal speech of Lord Nicholls in the House of Lords in Williamson (see below), in which the applicants invoked Article 9 to challenge the lawfulness of prohibiting the use of corporal punishment in schools.

Collins J held that the reasoning of the Commission in C v. United Kingdom reaching a decision on the scope of the terms of an International Convention, which would affect a number of different states, should be followed. The ruling was that the payment of taxes does not engage a person’s rights under Article 9(1). If the matter was to be re-considered, it must, he said, be re-considered in Strasbourg.

As pointed out by Mr Jonathan Crow, appearing for HM Treasury, C v. United Kingdom is not an isolated case: there have been other decisions to the same or similar effect: V v. The Netherlands (1984) 39 DR 267 (Application No 10678/83); BH & MB v United Kingdom (18 July 1986) (Application No 11991/86); Moratilla v. Spain (1992) 72 DR 256 at 262 (Application No 17522/90); and Bouessel du Bourg v. France (1993) 16 EHRR CD 49. He contended that the court should adhere to this “clear and constant” jurisprudence of the Strasbourg authorities: R (Ullah) v. Special Adjudicator [2004] 2 AC 323 at paragraph 20 per Lord Bingham.

The reasoning in C v. United Kingdom has also been recently cited with approval by the European Court of Human Rights in Sahin v. Turkey (2005) (Application No 44774/98) at paragraph 105 as an example of the general proposition that “Article 9 does not protect every act motivated or inspired by a religion or belief.”

Mr Fordham’s primary submission was that it was properly arguable that the reasoning in C v. United Kingdom had not shut the door on the applicants’ Article 9 claim. If that submission succeeded, it was for HM Treasury, at the substantive hearing of the application for judicial review, to justify its failure or refusal to act on the suggestion of a special peace tax fund or account.

As a preface to his criticisms of C v United Kingdom, Mr Fordham rightly pointed out that a really important point of principle was involved: the applicants could not in conscience contribute to military activities by helping to pay for them. It is not a case of seeking to avoid paying tax or securing a special exemption from it. The conscientious objection is to a particular use made of the tax paid.

As for the reasoning in C v. United Kingdom he made the general point that human rights jurisprudence evolved over time. This meant that it was sometimes necessary to scrutinise earlier rulings with care having regard to the fundamental nature of the right invoked. On re-examination in the light of later developments the reasoning in C v. United Kingdom was flawed. His first point was that a sufficiently close nexus or link existed between the individual’s belief and perceived conscientious obligation and its outward manifestation in the objection to the tax paid being used for military purposes to engage article 9. The matter of obligation had to be looked at through the eyes of the applicants. For them this was not a mere matter of choice or motivation (cf Arrowsmith v. United Kingdom (1978) 3 EHRR 218 at paragraph 71 relied on in C v. United Kingdom).

Further, the two specific points made in the Commission ruling were, first, that the tax was “general” and “neutral” and, secondly, that, in the context of the Protocol on the protection of property and possession, the Convention recognised the right of the State, by way of exception to that protection, to enforce general taxes. In principle, neither point was a good answer to the right of the individual to invoke Article 9. Subsequent decisions in Strasbourg demonstrate that general and neutral measures engage Article 9 and require justification: Buscarini v. San Marino (1999) 6 BHRC 638 and Sahin v. Turkey (29 June 2004, Application No. 44774/98). The State was required to justify the absence of special arrangements to accommodate the applicants’ perceived obligations of conscience and to do all that it reasonably could to cater for their beliefs.

Passages were also cited from the speech of Lord Nicholls in the House of Lords in R (Williamson) v. Secretary of State for Education and Employment [2005] 2 AC 246 at paragraphs 9, 22 to 24, 30-32, 35 and from the speech of Lord Walker at paragraph 67. Mr Fordham submitted that it was clear from Williamson that it was not for the court in Article 9 cases to judge the validity of the asserted belief or perceived obligation by some objective standard; that the guaranteed freedom of belief protected the subjective belief of an individual, however irrational, inconsistent or surprising it may seem to some; that a belief such as pacifism fell within Article 9; that a belief might take the form of a perceived obligation and the doing of an act pursuant to that belief might be a manifestation of that belief in practice, so that the act is “intimately linked” to the belief; and that the acts of manifestation of belief were not limited to acts of worship and devotion. All of these points, he argued, added real force to his criticisms of the ruling in C v United Kingdom and against there being clear and constant Strasbourg jurisprudence against the engagement of Article 9 in tax cases. Mr Fordham also relied on the critical comments in Copsey v. Devon Clays Ltd [2005] ICR 1789 on the early Strasbourg decisions on Article 9.

In accordance with the directions of Sedley LJ HM Treasury supplied substantial written arguments on whether there has been an interference with the applicants’ Article 9 rights and, if so, how such interference could be justified. HM Treasury was not required to serve, and did not serve, at this stage any evidence on the issue of interference and justification under Article 9(2).

In his excellent submissions Mr Crow made it clear that HM Treasury did not question the sincerity of the applicants’ beliefs or the importance to them of their objections to the use of tax for military purposes. He also accepted that pacifist beliefs were capable of falling within Article 9, while correctly pointing out the qualified nature of the right to manifest beliefs, as compared to the absolute nature of the right to hold the beliefs.

He supported his primary proposition that Article 9 is not engaged in this case by reference to the line of decisions by the Strasbourg authorities cited above that the imposition of general taxation does not interfere with the manifestation of religious or philosophical beliefs. The right to manifest such beliefs does not cover the situation in this case, which is essentially the same as was considered in C v United Kingdom and followed in later cases. The raising of revenue by the imposition of general taxation is “neutral” from a religious or moral point of view. It is not sufficiently intimately linked to the manifestation of religious or philosophical belief to engage article 9.

The applicants are not, he pointed out, without remedy: they can take a complaint to Strasbourg and attempt to persuade the ECHR to change its mind on the settled scope of Article 9.

In addition to his primary point Mr Crow advanced other arguments as to why the application for judicial review is unarguable.

First, quite apart from the Strasbourg jurisprudence on the scope of Article 9, there is no basis for suggesting any actual interference with the applicants’ Article 9 right and, in any case, the solution of a separate fund proposed by the applicants and rejected by HM Treasury would not remove the perceived interference.

The position is that the taxes paid by the applicants are not in any real sense being used for military purposes. The tax paid is money received into the Consolidated Fund. It loses its separate identity. Amounts released from the Consolidated Fund or transferred into the National Loans Fund cannot be identified with the amounts of tax paid by the applicants.

Nor can it be meaningfully claimed that their tax is being used for military purposes in the sense of facilitating the killing of human beings. Attention was drawn to the divers functions embraced by the defence budget for “military purposes” to which the conscientious objections of the applicants would not apply: protection against terrorism; emergency support in times of civil crises; search and rescue operations; fisheries protection; counter drugs work; humanitarian engagements in times of natural disaster; and peace-keeping support for law enforcement agencies in the UK and abroad.

Even if the applicants’ taxes were paid into a segregated fund, that would not reduce the aggregate amount spent by the government on military purposes. The payment of tax would be a contribution to the ability of the government to spend money, including expenditure on military purposes. Any payment of tax by the applicants is a contribution to the overall pot, from which government expenditure is drawn. The ultimate result of government expenditure on military purposes would not be affected by dividing the pot into two.

If, contrary to his contentions, there is interference with the applicants’ Article 9 rights, Mr Crow outlined a number of grounds on which the interference could be justified: the interference is “prescribed by law” (section 44 of the Commissioners for Revenue and Customs Act 2005); the interference pursues a legitimate objective of protecting the rights of others by the provision of public services and of defence services for the benefit of the community as a whole; and the interference is necessary in a democratic society.

As for proportionality, Mr Crow made five points made in support of the proposition that the proposal made by the applicants is disproportionate and that the interference complained of is justified.

First, the benefits of defence in protecting the community as a whole cannot be avoided, denied or excluded and the government is entitled to require everyone to contribute towards the cost of the benefits. Secondly, the practical implications of acceding to the applicants’ request are incalculable as regards the handling of tax receipts and the handling of expenditure from central funds. They would not be confined to dealing with the particular position taken by the applicants or even to various degrees and shades of pacifism: they could extend beyond objections to the use of taxes for military purposes to a wide range of other religious and philosophical objections requiring the setting up of segregated funds catering for individual beliefs across the entire spectrum of public expenditure. Just the administrative cost of doing so would lead to a rise in taxes and a reduction in public services. Thirdly, the degree of interference with the rights in question is extremely limited, whereas the public interest pursued in defending the whole community is extremely important. Fourthly, the applicants’ proposal is undemocratic. The applicants, who enjoy the benefits of living in a democratic society, seek tailor-made concessions to accommodate their own beliefs, while making no concessions to the general interest of the community as a whole in maintaining and promoting a democratic society in which there is a balance of pluralism, tolerance and broadmindedness. Fifthly, and finally, the proposal ignores the specific wording of article 1 of the First Protocol. It provides that the protection of the peaceful enjoyment of a person’s possessions does not impair the right of a State to enforce laws deemed necessary to secure the payment of taxes.

I am grateful to Mr Fordham for his careful and detailed analysis and criticisms of the Strasbourg jurisprudence, both generally and on specific points, and the recent English authorities, principally Williamson. I am, however, of the firm view that the Strasbourg jurisprudence is sufficiently “coherent and consistent” in its treatment of Article 9 applications in the context of general taxation to deter the English courts from departing from them or modifying them.

In the face of the Strasbourg jurisprudence Collins J was right to refuse permission for judicial review. This court should do likewise (a) without requiring HM Treasury to justify its failure or refusal to act on the suggestion of a special fund or account and (b) without expressing any view one way or the other on the arguments advanced by HM Treasury on interference and justification, which were only made in order to comply with the procedural order made by Sedley LJ in connection with the renewed application.

The submissions of HM Treasury on the area covered by the decisions of the Strasbourg authorities have persuaded me that an application for judicial review is bound to fail, unless and until the Strasbourg authorities decide to depart from or modify their earlier rulings. They have taken what may be thought to be a rather strict or narrow line on the manifestation of religious and philosophical belief in a number of areas central to the daily life of the individual citizen in the modern state, such as employment, education and fiscal responsibilities. In some respects the reasoning may be legally and logically unsound. What matters for present purposes, however, is that it is a clear and consistent line and, as such, it must be respected by the courts of the United Kingdom.

In my judgment, the proper forum in which the applicants should make their attack on the decisions of the Strasbourg authorities is before the European Court of Human Rights in Strasbourg. In the meantime the applicants are not without rights under Article 9 to manifest their pacifist beliefs by peaceful protests against war and against expenditure by central government on military purposes and by publicly declaring that the payment of their taxes in full without segregation is by compulsion, under protest and against their strongly held religious beliefs and consciences.

For the reasons given above I would refuse permission to appeal.

I agree.

I also agree.