Related Links:
1. First letter before action
2. Treasury's Reply
3. Final letter to Treasury
4. Final reply from the Treasury
5. High Court refusal for a full hearing
6. Skeleton arguments for our appeal
7. Treasury's skeleton argument against our appeal
8. Our reply to the Treasury's skeleton argument
9. Court of Appeal Judgement
10. Application to ECHR
11. Anglican Testimony
12. Buddhist Testimony
13. Quaker Testimony
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FULL TRANSCRIPT:
The High Courts refusal for a full hearing
This is the full transcript of Justice Collins' judgement. One can sort of see his argument for taking the case back to Strasbourg, but read our barrister's skeleton argument.
Neutral Citation Number: [2005] EWRC 1914 (Admin) CO/1698/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
BEFORE: MR .JUSTICE COLLINS
THE QUEEN ON THE APPLICATION OF BOUGHTON (CLAIMANT)
-v-
HER MAJESTY'S TREASURY (DEFENDANT)
MR M FORDHAM (instructed by Public Interest Lawyers) appeared on behalf of the CLAIMANT
MR .J CROW (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
JUDGMENT
(As Approved by the Court)
Crown copyright@
1. MR JUSTICE COLLINS: This application for judicial review is brought by a body of claimants who are a group known as the "Peace Tax Seven". They describe themselves in this way:
"We are a group of seven tax-paying citizens. We want to make a positive contribution to society by paying our tax in full. We object in conscience to paying others to kill on our behalf. The current tax policy forces us to do just that. We have each tried to direct our income taxes to the use of peaceful, non-military purposes. In each case we were denied the right and each of us have faced a dilemma: either to pay our taxes and so become complicit in killing, or to follow our conscience and break the law by withholding payment of a portion of our taxes. Following our consciences has led us to court or the threat of prosecution. We object in conscience to this financial conscription, and believe that its legal basis is questionable. We are seeking a judicial review of current UK tax policy on this issue."
2. What is suggested is that the Treasury should set up a fund into which those who have a conscientious objection, such as the claimants have, could require that the proportion of their taxes which otherwise would go to military purposes be put into a special account so that it would only be used for non-military purposes. It is said that there is power under the taxing statutes for the Treasury to set up such a division, as it were, of the amount that is paid by way of taxation. That is, of course, not the way that the system operates at the moment. All tax which is paid is paid into the Consolidated Fund, and out of that fund come all monies which are used by the Government for whatever purpose. Of course, a proportion (Mr Fordham informs me at the moment about 10 per cent) of general taxation is provided for defence purposes.
3. I should say that Mr Fordham recognises that there may be a need to draw a line, because some of those concerned in this case are what I could describe as absolute pacifists. That is to say, they would object to any part of what they pay being used for any hostile purpose, any military purpose at all; including, for example, the use of British troops to assist in United Nations peace-keeping activities. Some would accept that there are circumstances in which force could properly be used; very limited circumstances. Nonetheless, they recognise that there is a line which can be drawn.
4. It is plain that there will be problems, if Mr Fordham's case succeeds, in deciding how a line should be drawn. One has also to bear in mind that there may be objections to other sorts of payments out of general taxation on equally sincere conscientious grounds. Nonetheless, that is not a matter which would prevent this claim going ahead if, in principle, there were the need to establish some sort of an arrangement which would properly cater for the conscientious requirements of those such as the claimants.
5. I should say straight away that the genuineness and sincerity of their beliefs is not in issue. The contrary has never been suggested by the defendants, nor is it a matter which is in issue before me. The claimants have each put in statements which set out the reasons why they have come to the conclusions that they have in relation to the use of the tax that they pay for military purposes. I do not think that it is necessary to go into them in any further detail. They accept that they are required to pay tax and they have no desire in any way to avoid the payment of all that is due from them by way of taxation. But, it is contrary to their beliefs and their consciences to pay any money which they know would go towards military purposes. Therefore, there must be some means whereby that sort of objection can be met. They say that there is such a way available by a scheme such as I have mentioned.
6. The claim is based upon Article 9 of the European Convention on Human Rights. Article 9 has essentially two effective parts to it. It establishes not only the freedom of religion, thought and conscience but also the freedom of their manifestation. It is in these terms:
"(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice or observance. (2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
7 .The right to freedom of thought, conscience and religion is not in issue. There is no interference with that right in the requirement to pay tax, or indeed in the payments that are made out of those taxes. The question that arises is whether it contravenes and interferes with the right and freedom to manifest the belief in practice (I am isolating the relevant words of Article 9(1 . In the case of many of the claimants, their pacifist beliefs are part of religious beliefs. But that link is not necessary to attract the protection of Article 9. Arrowsmith v United Kingdom [1978] EHRR 218 decided that pacifism as a philosophy is a belief within the scope of Article 9(1) and is therefore protected by the right to freedom of thought and conscience. Indeed, that was given the stamp of approval by the House of Lords in the recent case of R v Secretary of State for Education and Employment and Others ex parte Williamson, decided on 24th February of this year under the title [2005] UKHL 15.
8. Mr Crow on behalf of the defendants accepts that there is an argument which, in the absence of any authority from Strasbourg, could be applied to suggest that in circumstances such as this, the objection to payment of the amount of tax for military purposes could be regarded as a manifestation of the belief and therefore would be capable of being protected by Article 9(1). I should say that the argument before me has not touched on Article 9(2). It is the case for the defendants that the claim does not get through the gate, as it were, of Article 9(1). But if I were to grant permission, the argument that Article 9(2) would apply to defeat the claim would be deployed. Nothing I say at this stage is intended to deal with the application of 9(2) or consider whether 9(2) would, in due course, be likely to defeat this claim.
9. What Mr Crow relied on is Strasbourg jurisprudence which he submits is constant and is clear, and indicates that a claim such as this cannot conceivably succeed. The Strasbourg jurisprudence consists of some three cases heard by the Commission in the early 1980s. They involved a claim by citizens, I think of the United Kingdom in each case, that their Article 9 rights were breached by having to pay tax which was spent on armaments. The leading case to which I have been referred is C v United Kingdom, a decision of 15th December 1983, numbered 10358/83. The facts, so far as material, are set out in the judgment in these terms:
"The applicant, who is a Quaker, contends that to compel him to contribute to expenditure for armaments rather than for peaceful purports is an outrage to his conscience and contrary to the requirements of the manifestation of the belief that he has. He contends that the manifestation and practice of his Quaker beliefs requires him to oppose recourse to war in the settlement of disputes and not to support, directly or indirectly, weapon procurement, weapon development and other defence-related expenditure. It is therefore his contention that it was a necessary part of the manifestation of his Quaker belief and practice and observed that 40 per cent of his income tax can be diverted for different peaceful purposes. This step is not merely consistent with the Quaker beliefs but necessary to their manifestation."
One can well see the analogy with the circumstances of this case. Indeed, it seems to me that there is no material distinction between the matters that were in issue in C and the matters that are in issue in this particular claim.
10. It is therefore necessary to see what the Commission had to say about this particular issue, and therefore I should cite it in full. They say:
"Article 9 primarily protects the sphere of personal beliefs and religious creeds, ie, the area which is sometimes called the forum of the internal. In addition, it protects acts which are intimately linked with these attitudes, such as acts of worship or devotion which are aspects of the practice of religion or belief in a generally recognised form. However, in effecting this personal sphere, Article 9 of the Convention does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief; for instance, by refusing to pay certain taxes because part of the revenue so raised may be applied to military expenditure. The Commission has so held in ...Arrowsmith v United Kingdom where it stated that: 'The term 'practice' as employed in Article 9(1) does not cover each act which is motivated or influenced by a religion or belief.' The obligation to pay taxes is a general one which has no specific conscientious implications in itself. It is also illustrated by the fact that no taxpayer can influence or determine the purpose of which his or her contribution was done once they are collected. Furthermore, the power of taxation is expressly recognised by the Convention system and is ascribed by Article 1 of the First Protocol. It follows that Article 9 does not confer on the applicant the right to refuse, on the basis of his convictions, to abide by legislation the operation of which is provided by the Convention, and which applies neutrally and generally in the public sphere without infringing on the freedoms guaranteed by Article 9. If the applicant considers the obligation to contribute through taxation to arms procurement an outrage to his conscience, he may advertise his attitude and thereby try to obtain support for it through the democratic process."
11. Mr Fordham submits that that reasoning is open to criticism and, indeed, does not stand with subsequent decisions, in particular Williamson to which I have already referred. Williamson was a case involving corporal punishment in schools. The claimants in Williamson were headteachers, teachers and parents of children. They were concerned that the bar imposed by section 548 of the Education Act upon corporal punishment in school infringed their Convention right to freedom to manifest their religion in practice, because they regarded corporal punishment of children as being a necessary means of controlling them. In paragraph 9 of Lord Nicholls' speech, which was the leading speech, he said this:
"The claimants' proposed to speak on behalf of a 'large body of the Christian community' in this country whose 'fundamental beliefs' include a belief that 'part of the duty of education in the Christian context is that the teachers should be able to stand in the place of parents and administer physical punishment to children who are guilty of indiscipline'. They reject the general standard of state education available in this country as not fitting their religious and moral beliefs. They believe that, correctly used, 'discipline of this type is an effective deterrent against behaviour that is unacceptable in the community'."
It was not disputed that those were genuinely held beliefs and that, accordingly, there was an infringement of those beliefs in the way in which corporal punishment was rejected.
12. It is important to see what Lord Nicholls had to say under the heading "Manifesting the
claimants' beliefs in practice" because the case dealt with what amounted to manifestation. We find that in paragraphs 30 to 32 in which Lord Nicholls said this:
"(3D) In the present case a further prerequisite must be satisfied before Article 9 is engaged. Article 9 is not engaged unless the complainants' activity under consideration is within the scope of the protection the Article affords to the complainants' beliefs. As to this, the Strasbourg jurisprudence has consistently held that Article 9 does not protect every act motivated or inspired by a religion or belief. Article 9 does not 'in all cases' guarantee the right to behave in public in a way 'dictated by belief: see, most recently, the decision of the European Court of Human Rights regarding the wearing of an Islam headscarf in Sabin v Turkey Application No 44774/98 (29 June 2004) paragraph 66. [I am right in saying, I believe, that the European Court of Human Rights upheld a bar on the wearing of the headscarf].
(31) Clearly this is right. Miss Arrowsmith distributed leaflets to soldiers, urging them to decline service in Northern Ireland. This was dictated by her pacifist views. But the contents of the leaflets did not express pacifist views, nor did the act of distributing the leaflets do so. She was not thereby manifesting her pacifism: Arrowsmith v United Kingdom 3 EHRR 218. (32) Thus, in deciding whether the claimants' conduct constitutes manifesting a belief in practice for the purposes of Article 9 one must first identify the nature and scope of the belief. If, as here, the belief takes the form of a perceived obligation to act in a specific way, then, in principle, doing that act pursuant to that belief is itself a manifestation of that belief in practice. In such cases the act is 'intimately linked' to the belief in the Strasbourg phraseology: see Application 10295/82 v United Kingdom [1983] 6 EHRR 558. This is so whether the perceived obligation is of a religious, ethical or social character. If this were not so, and if acting pursuant to such a perceived obligation did not suffice to constitute manifestation of that belief in practice, it would be difficult to see what in principle suffices to constitute manifestation of such a belief in practice. I do not read the examples of acts of worship and devotion given by the European Commission in Application 10295/82 v United Kingdom as exhaustive of the scope of manifestation of a "belief in practice." Lord Nicholls went on to indicate that he was concerned only to identify what in principle was to constitute manifestation in a case where the belief was one of perceived obligation. At 35 he said this:
"In the present case the essence of the parents' beliefs is that, as part of their proper upbringing, when necessary children should be disciplined in a particular way at home and at school. It follows that when parents administer corporal punishment to their children in accordance with these beliefs they are manifesting these beliefs. Similarly, they are manifesting their beliefs when they authorise a child's school to administer corporal punishment. Or, put more broadly, the claimant parents manifest their beliefs on corporal punishment when they place their children in a school where corporal punishment is practised. Article 9 is therefore engaged in the present case in respect of the claimant parents."
13. The analogy here, Mr Fordham submits, is that the essence of the claimant's belief is that no money provided by them should be spent on a military purposes. They should not contribute in any way to military purposes. That would be contrary to their pacifist beliefs. Otherwise, they would be in the position of contributing to something which they believe to be entirely wrong. Accordingly, it is said that they manifest those beliefs when they refuse to pay the amount of tax which is equivalent, or when they say that there should be an arrangement whereby what they pay can be isolated out of the general taxation pool and therefore can ensure that it is not available for military purposes. Mr Fordham also submits that it is entirely consistent with the approach indicated by Lord Nicholls in Williamson to say that there is here a manifestation and that the Strasbourg answer is one which needs to be reconsidered.
14. I am bound to say that one sees the force of that submission. Whether, in the end, it would succeed is another matter. It might well, in due course, fall foul of arguments to the contrary, or indeed of Article 9(2). But that at this stage is not the point. Indeed, as I have indicated, I think Mr Crow recognises that if there were not the Strasbourg jurisprudence upon which he relies, he would find it difficult to dispute that there was, in relation to Article 9(1) at least an arguable point to be made.
15. But, he has drawn my attention to the Strasbourg jurisprudence, to which I have already
referred and, in addition, perhaps most importantly, to observations of Lord Bingham in the House of Lords in Ullah v Special Adjudicator [2004] 3 WLR 23. That case involved different Articles to the ones with which we are concerned in this case, but it also included an Article 9 point, the issue being in that case whether Article 9 would ever be applied in an expulsion case. In paragraph 20 of his judgment on page 39 Lord Bingham said this:
"In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special
circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, paragraph 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
That, submits Mr Crow, is a most important approach and one which the courts should adopt. Domestic law --and there is no doubt about this --is entirely against the contentions being raised by the claimants. Absent Article 9, there could be no conceivable claim. The suggestion has been made from time to time when claims have been made that taxes should not be applied to military purposes and that those who have a conscientious objection should not be required to pay monies which go towards those purposes. Those claims have always failed. Indeed, it is clear that, as I say, domestic legislation is totally against the claimants.
16. Thus, there is no provision for rights more generous than those guaranteed by the Convention. Accordingly, what I am being asked to do --and what the court will be asked to do if I were to grant permission --would be to construe the Convention in such a way as to provide for a remedy which the Commission has hitherto said is not available.
17. Mr Fordham relies on the fact that the decisions in question are Commission decisions and not decisions of the court. That, of course, is correct as a matter of fact but, as Mr Crow points out, that really is not something which can to a great extent avail the claimants, since the Commission has decided on a number of occasions that these claims were manifestly ill-founded and thus could not get beyond the hurdle of admissibility so as to reach the court. Again, as Mr Crow pointed out, there is no reason to believe that the judges who sat in the Commission should be regarded as carrying any less weight than those who sat in the European Court. Many of the judges sitting on the Commission were subsequently promoted and it may even be that some who sat in the Commission also sat in the court.
18. Mr Fordham also points out that Lord Bingham, in paragraph 20, which I have cited, refers to following clear and constant jurisprudence of the Strasbourg court. Of course, at the time Lord Bingham was speaking there was no Commission. It had gone and it was all the Strasbourg court. But the Human Rights Act 1998 does not distinguish between the court and the Commission in section 2, and the reference to following Strasbourg case law must, in my view, include the Commission as well as the court. One should not necessarily apply any less weight to decisions of the Commission than to the decisions of the court. Of course, that may depend upon the nature of the individual case. Certainly, the decision in Arrowsmith was closely reasoned and given in some detail.
19. Mr Fordham submits, too, that the court in C effectively misapplied what it had said in Arrowsmith and the reference in Arrowsmith to an act motivated or influenced by a religion or a belief was not the same as an act dictated by that religion or belief. It is interesting to note that Lord Nicholls in Williamson uses the word "dictated" and I am bound to say that I see no difference between what is to be conveyed by the words. Quite clearly, the refusal was motivated by the religious belief. Indeed, it was so strongly motivated as to amount to a dictation. As I say, there is no difference in principle.
20. The reasoning is that the obligation to pay taxes is a general one, that it is neutral, that there is no power by the law of any state that the taxpayer can influence or determine the purpose for which his or her contributions are applied and the Convention recognised the power to tax as one which was upheld by the First Protocol. In those circumstances, the decision was that there was no right to refuse to abide by the general legislation. Therefore, there was, in the circumstances, no interference with the manifestation of the belief. It could be argued that a different conclusion could have been reached. No doubt that is so. But, equally, one has to bear in mind that there are matters which would have to be borne in mind by judges who are deciding upon the terms of an International Convention which will affect a number of different states.
21. It is also worth noting that there is a decision, relatively recently in 2001, where this point was taken and the Dutch court expressly followed the Strasbourg reasoning in rejecting it. There was also a decision in Canada with much the same effect.
22. It seems to me, in those circumstances, that, interesting no doubt though the argument is, and important --I do not wish to in any way indicate that this is not an important matter --it seems to me that it is not for this domestic court to seek to upset the clear jurisprudence of Strasbourg. I am persuaded that if this matter is to be reconsidered, it must be reconsidered by Strasbourg. That would involve, if the claimant wished to take the matter there, the exhaustion of domestic remedies. That can be done more speedily if permission is at this stage refused, and incidentally, much more economically.
23. I am quite sure that, even if I were to grant permission, in the end this claim would fail. Therefore, it seems to me that, quite apart from anything else, there is little point in granting permission in order for an argument to be employed which in the end is, in my judgment, bound to fail. In those circumstances, I am quite satisfied that this claim has no arguable possibility of success and therefore I must refuse permission.
24. MR FORDHAM: My Lord, there is no application for costs. Will you please say no order for costs?
25. MR JUSTICE COLLINS: If it is convenient to do so.
26. MR FORDHAM: It would be, my Lord. You know what the position is in relation to the protective costs order. We need to know that today is not going to count.
27. MR JUSTICE COLLINS: Fine. I need say nothing. Having refused leave, equally I am more than happy to include it in the order.
28. MR FORDHAM: Please say no order.
29. MR JUSTICE COLLINS: Yes.
30. MR FORDHAM: I am grateful. That then leaves the question of exhausting domestic remedies or even seeking to persuade the courts we have a domestic remedy. We have the opportunity to go to the Court of Appeal for our interesting and important argument. The reason I am on my feet is that there is a double permission requirement in judicial review.
31. MR JUSTICE COLLINS: There is no permission required for a renewal of permission.
32. MR FORDHAM: You need leave to appeal against the refusal of permission for judicial review. The reason that double permission
33. MR JUSTICE COLLINS: Are you sure that is right? I thought this was the rare exception --indeed I think the only exception --for the requirement of leave where you have an absolute right to apply to the Court of Appeal within seven days.
----- There follows a long discussion as to whether Mike Fordham needs permission from judge Collins to appeal. We won't bore you with it!
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Related Links:
1. First letter before action
2. Treasury's Reply
3. Final letter to Treasury
4. Final reply from the Treasury
5. High Court refusal for a full hearing
6. Skeleton arguments for our appeal
7. Treasury's skeleton argument against our appeal
8. Our reply to the Treasury's skeleton argument
9. Court of Appeal Judgement
10. Application to ECHR
11. Anglican Testimony
12. Buddhist Testimony
13. Quaker Testimony
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