Re: War Taxes and Freedom of Religion, Belief and Conscience.

We refer to our earlier correspondence: our letter dated 21 July 2004 and your reply dated 18 August 2004. For convenience, further copies are enclosed.

We and our clients would like to thank you, and your colleagues at HM Treasury and the Inland Revenue, for the care and clarity with which you have addressed this important issue, and for raising the various questions and concerns with which you felt we needed to deal.

You observed that you would not be willing to treat our letter as a formal letter before claim, not least given the need for further consideration and a clearer exposition of matters such as identification of: (1) the decision proposed to be challenged; (2) any statutory provisions at issue; and (3) the appropriate defendant. You also commented that you would need and welcome further clarification in relation to how to define the system which we say would avoid violation of our clients' Article 9 rights.

Having carefully reflected with our clients on these and the various other points you raised, we accept that it is appropriate for a further and more formal letter to be written before any pursuit of the proposed legal challenge. We accept that, in a matter as important and sensitive as this, it is important that the shape and clarity of the legal challenge be the subject of very conscientious reflection and communication.

In the circumstances, in order to make maximum use of this pre-claim stage, in the light of your observations, we felt it would be wise to ask Counsel to undertake comprehensive research and analysis, and then to formulate in draft form an outline of grounds on which it would be proposed to move the Court. This they have done, and the product of that exercise is enclosed herewith.

We trust that you will be in a position now to accept that you have all the necessary information for there to be reflection on whether HM Treasury can propose a way forward which can accommodate our clients and obviate the need for proceedings. We also ask you to note the various practical and procedural considerations with which the draft grounds deal, and in due course let us know whether we are at least in a position to agree the practicalities for pursuit of this important case.

Yours sincerely,

OUTLINE DRAFT GROUNDS FOR JUDICIAL REVIEW

Introduction

1. The issue is whether the United Kingdom taxation system is compatible with the claimants' statutory human rights arising under Schedule 1 Article 9 to the Human Rights Act 1998.

2. As Arden LJ said about the Article 9 case of Williamson [2002] EWCA Civ 1926 [2003] QB 1300 at [211]: "This case is another illustration of what Lord Hope observed in R v Kansal (No.2) [2002] 2 AC 69, 101-102: ‘the development of our jurisprudence on the Human Rights Act 1998 has only just begun'."

3. On 15 December 1983, the European Commission of Human Rights made a decision on this issue, in C v United Kingdom Application No.10358/83. The Commission dismissed the applicantâ ™s complaint as inadmissible, on the basis that there was no interference with any Article 9 right. The crucial question is whether the reasoning in that case can withstand scrutiny under modern ECHR jurisprudence.

4. The claimants are a group known as the ‘Peace Tax Seven'. This is how they describe themselves:

We are a group of seven taxpaying 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, but current tax policy forces us to do just that.

We have each tried to direct our income taxes to be used for peaceful and non-military purposes. In each case we were denied the right, and each of us has 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 lead 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.

5. The claimants' stand, in refusing to pay taxes into a single consolidated fund used for military purposes, is driven by their deeply held conscientious beliefs. For a fuller description of their position, attention will be invited to witness statement evidence filed with the judicial review claim.

6. The claimants do not want to withhold taxes. They want to pay their taxes, in full. They are ready and willing to do so. But they cannot in good conscience do so, when they are paying into a fund used for military purposes. That they cannot do. Thus, they need the State to respect the manifestation of their beliefs, by providing a taxation fund into which they can pay their taxes, and which can be used for all and any non-military purposes.

7. The law has long since recognised pacifism and conscientious objection to military service. The Strasbourg Commission has considered pacifism in a line of cases including Arrowsmith v UK (12.10.78) Application No.7050/75. Conscientious objection has been the subject of a series of recent domestic cases, in the context of refugee law (notably Sepet [2003] UKHL 15 [2003] 1 WLR 856 and Krotov [2004] EWCA Civ 69 [2004] 1 WLR 1825) and military discipline law (Khan [2004] EWHC 2230).

8. The claimants are aware of no UK domestic law case on conscientious objection to the payment of tax. This is a test case of great significance.

9. It is understood that the issue in the present case has been litigated in the Courts of the Netherlands, where it was argued all the way up to the Supreme Court (HR 26 April 2000 Nr 33.734). Although the claimants do not have a translation, it is understood that the Court ruled that Article 9 was not applicable, in circumstances where the duty to pay taxes was a general duty.

10. It is not difficult to see why the proposed military use of pacifist taxpayers' money can constitute an affront to their conscience. It is well-recognised that compulsory conscription into the armed forces can constitute an affront to conscience. United Kingdom domestic statute law has so recognised, at the time of both world wars: see eg. section 2 of the Military Service Act 1916 and section 5 of the National Service (Armed Forces) Act 1939.

11. As it was once put in Parliament (Hansard 19 October 1999; John McDonnell MP): "Modern wars are no longer fought with conscript armies in which a conscientious objector can refuse to serve; they are fought with high-tech weapons paid for with our taxes. Today we are not conscripted to fight; instead, our taxes are conscripted to pay for the high-tech weapons of modern warfare and the trained professionals who fire them."

12. As Lord Bingham observed in Sepet at [18]: "the dependence of modern warfare on sophisticated weaponry and technological skill has lessened the need for mass armies and so diminished the dependence of some states on conscription".

13. Also in Sepet (at [50]) Lord Hoffmann considered, in the context of religion, whether withholding of taxes could sensibly be distinguished from other manifestations of Article 9 belief such as "chaining oneself to the railings outside Parliament" or refusing "to fight a holy war". He evidently did not think it could: "I find it hard to see the principle upon which these distinctions are made". He continued: "There is no reason why a religion should not require one to chain oneself to railings, not pay tax or fight a holy war". Lord Hoffmann was right to recognise that withholding of taxes could be as important an act of conscience, and manifestation of belief, as refusing to fight in a war.

14. As Colleen Garrity explains in her article "The Religious Freedom Peace Tax Fund Act: Becoming Conscious of the Need to Accommodate Conscience" (2003) Ohio State Law Journal 1229-1230: Conscientious objectors to tax, unlike other tax protestors, generally accept the legal legitimacy of the income tax. However, they contest the moral legitimacy of allocating a portion of the income tax to military expenses and argue that requiring them to pay these taxes violates their freedoms. These concerns are particularly timely in the wake of the war in Iraq and the United States's continued military involvement in the Middle East and other countries throughout the world. In the modern world, technology and equipment, more so than manpower, are the primary resources used to fight wars. Attaining the most superior technological advancements requires funding, including funding through citizens' tax dollars. Just as conscientious objectors argued that they should not be required to participate in war, many of these individuals argue today that they should also be exempt from the funding of war.

Nature of the claim

15. Were this an application to the Strasbourg Court, the respondent would simply be ‘the United Kingdom'. However, in vindicating the Convention rights in the domestic Court using the domesticating statute, it is necessary to identify the most appropriate defendant. The claimants have joined HM Treasury as defendant to this action, having initially raised the proposed claim with the Chancellor to the Exchequer. The claimants understand from the statutory scheme (see below) and from information at www.government-accounting.gov.uk that it is HM Treasury who controls the Consolidated Fund and determines arrangements for payments into it.

16. The claimants have, however, also identified the Chancellor of the Exchequer and the Commissioners of the Inland Revenue as being persons directly affected by this claim and entitled to be heard if they wish. It is not anticipated that separate representation would be needed in meeting the claim.

17. Finally, since there is the possibility of a declaration of incompatibility, the claimants would invite that the Court serve the Crown (HRA section 5).

18. As to the decision of which judicial review is sought, CPR 54.1(2)(a) defines a claim for judicial review as "a claim to review the lawfulness of: i. an enactment; or ii. a decision, action or failure to act in relation to the exercise of a public function". This claim concerns (a) a failure to act and (b) an enactment. Judicial review is sought of:

(1) The failure or refusal by HM Treasury to establish a special fund or account, alongside the general fund and account referred to in the Exchequer and Audit Departments Act 1866 s.11 and the Public Accounts and Charges Act 1891 s.1(2), for (a) receipt of monies on account of the Exchequer and the Inland Revenue collected or received from those who have an objection of conscience to their tax monies being used for military purposes and (b) use for non-military purposes only.

(2) The following enactments: the Exchequer and Audit Departments Act 1866 especially s.11 and the Public Accounts and Charges Act 1891 especially s.1(2).

19. The remedies sought by the claimants are as follows:

(1) A declaration that the failure or refusal referred to is contrary to law.

(2) A mandatory order requiring that HM Treasury take steps to establish the special fund or account referred to.

(3) Insofar as the enactments referred to cannot be interpreted, by reference to section 3 of the Human Rights Act 1998, to allow action to ensure compatibility with the claimantsâ ™ Article 9 rights, a declaration of incompatibility under section 4 of the Human Rights Act 1998.

(4) Such further or other remedy as may be necessary to give effect to the judgment of the Court.

The central dilemma

20. It is a theme of the case-law on freedom of religion and conscience that the Courts will jealously scrutinise the justification of State measures which require a citizen to make an invidious choice. The point was well-encapsulated in the case of Re Chikweche [1995] 2 LRC 93 where the Supreme Court of Zimbabwe held that the State Courts had violated freedom of conscience, religion and belief in refusing to register a Rastafarian lawyer on grounds that his unkempt appearance did not satisfy the Courtsâ ™

requirement of proper dress. As Gubbay CJ explained (at 100): It is obvious to me that the refusal by the judge to entertain the application placed the applicant in a dilemma. Its effect was to force him to choose between adhering to the precepts of his religion and thereby foregoing the right to practise his profession and appear before the courts of this country, or sacrifice an important edict of his religion in order to achieve that end. A somewhat analogous situation came before the United States Supreme Court in Torcaso v Watkins (1961) 367 US 488, 6 L Ed 2d 982.

A notary public in Maryland was denied a commission to serve because he would not declare his belief in God as required by a provision of the Constitution of the State of Maryland. The court held that the provision imposed an invalid test of public office which was violative of freedom of belief and religion.

21. The Constitutional Court of South Africa made the same point in Christian Education South Africa v Minister of Education (2000) 9 BHRC 53, in describing the balancing of these competing imperatives (at [35]): The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.

22. This is a helpful formulation. The claimants in this case cannot claim in law an automatic right to be exempted by their beliefs from the law of the land. Their case is that the State is obliged to seek to avoid putting them to the extremely painful and intensely burdensome choice of being true to their conscientious beliefs or else respectful of the law. They say that in law the State must objectively justify any failure to avoid that unconscionable dilemma, and can only do so on the basis of showing that it is demonstrably not reasonably possible.

The interference issue

23. The analysis under Article 9 involves two basic stages: (1) whether there is an interference with applicable Article 9 rights so as to require justification; (2) whether there is justification for the interference.

24. In the Commission's decision in C v UK, and in the decision of the Netherlands Supreme Court, the claims failed at stage one. Article 9 rights were held not to have been interfered with. Is that conclusion a sound and sustainable one?

25. There is good reason to doubt that. The following recent insight of Rix LJ is illustrative (Khan at [95]): In earlier years the Commission in particular has often appeared to take a rather formal approach to article 9(1): on the question, for instance, of interference itself, there appears to have been some unwillingness to allow for the possibility of the engagement of article 9(1) and thus to get into the question of justification under article 9(2). It may be that this is in part a reflection of the state parties' own reluctance to get into the question of justification. We would refer in this connection to Williamson at paras 113/116 and 196/198, where Kala is discussed. We would detect in Thlimmenos a new preparedness to allow for possibilities that state interference under article 9(1) may have to be justified. We would view the very recent case of Sahin v Turkey in just this light. There the Court was prepared at any rate to "assume", even if not to decide, that the banning at the University of Istanbul of the applicant's wearing of an Islamic headscarf was an interference with her right to manifest her religion (at para 71). Therefore the question of justification had to be entered upon. Consideration was then given to the requirements of "prescribed by law", legitimate aim, and "necessary in a democratic society", especially the latter. It was accepted that in such a context the margin of appreciation "is particularly appropriate" since rules on the subject vary from one country to another depending on national traditions (at para 102). Ultimately, the Court concluded that there had been no breach of article 9, since the assumed interference had been justified. We can well understand that in this context there need be no shyness about testing rights of conscience and the requirements of a democratic and pluralist society in the dispassionate context of a court and in the light of reasoned argument.

26. The jurisprudence suggests that four questions may arise at stage one in the present case. Each can be found to feature in the reasoning of the Commission's admissibility decision in C v UK.

Manifestation

27. The Strasbourg jurisprudence draws a distinction between (a) acts which are merely "motivated or influenced by a religion or belief" and (b) the relevant act required by Article 9(1) being to "manifest" the belief in a "practice" . This vexed distinction divided the Court of Appeal in the school corporal punishment case of Williamson [2002] EWCA Civ 1926 [2003] QB 1300.

28. In C v UK part of the Commission's reasoning, in explaining why Article 9 did not apply to the act of "refusing to pay certain taxes because part of the revenue so raised may be applied for military expenditure", was that (p.147): ‘ in protecting the 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 ‘ the term "practice" as employed in Art 9(1) does not cover each act which is motivated, or influenced by a religion or a belief.

29. The last sentence, in quotations, came from Arrowsmith v UK 3 EHRR 218 at [71]. It has been affirmed in more recent cases: see Pretty v UK (2002) 35 EHRR 1 at [82]; also Sahin v Turkey at [66].

30. Thus, it is established that not every act which is motivated or influenced by a belief will suffice to be a "manifestation". But, with respect to the Commission, it does not follow that "refusing to pay certain taxes because part of the revenue so raised may be applied for military expenditure" is a mere act motivated or influenced by a belief. Lord Hoffmann in Sepet thought it could be an act equivalent to chaining oneself to railings or refusing to fight in a war.

31. Nor, with respect to the Commission, does Arrowsmith support such a conclusion. As Rix LJ has pointed out (Williamson at [163] and [165]), Arrowsmith is explained by its facts: there was no "manifestation" of belief because of the mismatch between the belief (pacifism) and the views being expressed in the leaflets distributed (which "did not express pacifist views"). Moreover (Williamson at [165]), the idea that conscientious withholding of tax cannot be seen as a manifestation is difficult to reconcile with a case like Darby v Sweden (1990) 13 EHRR 774.

32. In asking whether there is a "manifestation" it is helpful to ask whether the act in question is one which is "compelled" or "driven" by the belief which the individual holds: see Arden LJ in Williamson at [287]-[289]. That is what contrasts with being merely "motivated or influenced". For a conscientious objector (who believes that undertaking military activity is fundamentally wrong), refusing to fight in a war would thus be a "manifestation". That would be a case of "the mere act of absence or desertion" sufficing (Khan at [63]). So too, for a conscientious tax objector (who believes that underwriting military activity is fundamentally wrong), refusing to pay taxes into a general fund used for military activities would also be a "manifestation".

Generality/neutrality

33. It has been said that Article 9 is inapplicable to conscientious tax objection where the taxation system in question is general and neutral in its application to the population.

34. That reason is at the heart of C v UK at p.147: "The obligation to pay taxes is a general one which has no specific conscientious implications in itself. Its neutrality in this sense is also illustrated by the fact that no tax payer can influence or determine the purpose for which his or her contributions are applied, once they are collected". It appears also to have persuaded the Supreme Court of the Netherlands (see above). Rix LJ and Arden LJ have referred to it (Williamson at [165] and [271]), but without analysing or endorsing it. But it is not a well-founded reason.

35. As in the context of Article 14 (see Thlimmenos at [48]), so too for Article 9 questions of "objective justification" (see the comment in Sepet at [30]) are not prevented from arising by the fact that the interfering measure is generally applicable. Measures which affect physical appearance or food- consumption could be generally applicable, yet they could plainly interfere with manifestations of religious rights or other fundamental beliefs.

36. This part of the reasoning in C v UK is difficult to reconcile with Article 9 cases which preceded it (see eg. X v Austria [1965] 8 YB 174) and impossible to reconcile with what has followed. The measure in Pretty was both general and neutral, and yet that was not the reason why Article 9 could not assist Mrs Pretty. The measure in Buscarini v San Marino (1999) 6 BHRC 638 ECtHR was general, and the measure in Sahin v Turkey was general and neutral, and yet the Court did not treat Article 9 as inapplicable. This reason cannot stand as an answer to whether Article 9 applies.

37. In the United States, religious freedom legislation (and in particular the Religious Freedom Restoration Act) spells out that the State cannot unjustifiedly interfere with the exercise of such rights: "even if the burden results from a rule of general applicability". In principle, it would be odd and unsatisfactory if the operation of Article 9 is no less diluted.

Text of Article 1P

38. Another reason put forward, but equally unsound on analysis, is that the collection of taxes is expressly provided for in Article 1P, as a legitimate aim for property interference. But that observation does not mean that Article 1P is inapplicable to any question of taxation, still less can it have that effect for Article 9.

39. Just because taxation features expressly within Article 1P (property) does not mean that a tax which penalised people in terms of conscience could not engage Article 9 (belief). To take just one example, criminal process features expressly within Article 5 (liberty), but that would not prevent it engaging Article 9.

40. Again, the Commission in C v UK made reference to this point (at p.147): "Furthermore, the power of taxation is expressly recognised by the Convention system and is ascribed to the State by Article 1, First Protocol". But if that reasoning sufficed to prevent Article 9 from applying it is, as Rix LJ has pointed out (Williamson at [165]), impossible to understand why Article 9 was engaged in a case like Darby v Sweden, as it was.

41. The true influence of Article 1P is to support the conclusion, which the claimants accept, that the operation of a viable state taxation system is a legitimate aim when considering justification and proportionality under qualified rights. But that is a stage two question, which recognises that the proper focus is in testing rights of conscience at that stage, and with dispassionate reasoned argument (Khan at [95]). The reasoning of the Commission in C v UK did not consider that all-important exercise.

42. The claimants are aware that in the context of conscientious objection and military service, the older Strasbourg jurisprudence has emphasised the manner in which Article 4(3)(b) deals expressly with conscientious objection. But that is a much stronger argument than the Article 1P observation, given the express wording of Article 4(3)(b). Moreover, even that much harder problem is at best an open question in Strasbourg, depending on the view taken of Thlimmenos: see Khan at [67].

The manifestation by alternative means

43. In Williamson, the Court of Appeal held (2-1) that the use of corporal punishment in the education of children could be a manifestation of a religious belief. However, there was no Article 9 ‘interference', because the manifestation by alternative means was not prevented: the parents could carry out the punishment at home: see eg. [204] and [293].

44. In C v UK the Commission made a comment which might indicate use of this type of reasoning. They said (at p.147) that: "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".

45. Once again, this cannot withstand scrutiny as a reason for finding non-interference with Article 9. After all, it would always be possible for a person whose manifesting conduct (eg. appearance, or diet: cf. Williamson at [164]) is curtailed to protest, or "advertise" their "attitude". The belief in corporal punishment could have been "advertise[d]" through the democratic process. But that is not the point. The question is whether the relevant manifestation (in Williamson, the belief-based use of corporal punishment; here, the belief-based withholding of tax) can be pursued in some other way. In Williamson, there was another way of administering corporal punishment; in Khan, there was a mechanism for dealing with conscientious objection, by formally applying for discharge (see [65]); here, there is no other way of preventing the monies from being used for military purposes. Indeed, that is the point. There should be.

The justification issue

46. Accordingly, although it is understandable that the Government should heavily rely on the reasoning and conclusions in C v UK to support the conclusion that the Article 9 rights of the claimants and those in their position are interfered with, that conclusion and reasoning is unsound. The defendant has erred in law. The Government was obliged to conduct a considered balancing exercise, taking account of the interference with fundamental rights. It is necessary to conduct an "assessment of objective justification" (Sepet at [30]), with an overt grappling with the countervailing considerations (as indicated in Sepet at [34]).

47. In approaching the question of justification, it must be remembered that: (1) Article 9 is a highly valued fundamental right; (2) this species of conscientious belief is a powerful and weighty one; (3) the test of justification is whether the interference is "necessary in a democratic society"; and (4) it is for the State to prove that such justification exists.

48. The Court should expect evaluative evidence, and argument, addressed to the question of why, in the legitimate objective of a viable State tax collection system, it is necessary to maintain a single consolidated fund. In other words, it is necessary for the Government to show that it would not be reasonably possible to accommodate the claimants' position by means of a separate fund into which they can pay all their taxes, but from which only non-military uses can be funded. The Government has not demonstrated such a case.

49. In the United States jurisprudence the issue has tended to be side-stepped. There, the Courts have been prepared to define the "legitimate objective" in a self-fulfilling way which automatically

provides the answer to the question of justification. To the extent that the defendant adopts a similar position, which is not clear, the Courts applying the HRA should not accept it.

50. This point is illustrated by the decision of the United States Court of Appeals for the Third Circuit in Adams v Commissioner of Internal Revenue (4th March 1999) 170 F 3d 173. There, the legitimate aim was characterised as the "uniform, mandatory participation in the Federal income tax system". Upholding that approach as consistent with the caselaw of the US Supreme Court, it was observed (at p.179) that in this way "the nature of the compelling interest involved, converts the least restrictive means inquiry into a rhetorical question that has been answered". In other words, if the aim is a mandatory uniform system then by definition such a system is justified and proportionate, since no other system can achieve the aim.

51. This approach may be ingenious in side-stepping the justification test, but it should not be accepted in applying the ECHR. It would be to resurrect the "generality/neutrality" principle. After all, any mandatory general measure could always be said to be imposed for an aim which involves

having a "uniform, mandatory" system. The answer in Sahin v Turkey would have been that Turkey's legitimate aim was to pursue a "uniform mandatory" system of headwear in schools, and by definition the justification test would have been met by such a system.

52. In Christian Education South Africa, the interference was sought to be justified by reference to the state interest in "the principle of equality", so that the suggested legitimate aim inherently involved uniformity of treatment. The Constitutional Court of South Africa explained why this notion of "equality" could not remove the need for justification. Uniformity is not a virtue which answers the justification test. As the Court explained (at [42]): "the essence of equality lies not in treating everyone in the same way, but in treating everyone with equal concern and respect". Thus, there was no getting away from the requirement that the state must "wherever reasonably possible" avoid the dilemma of conscience between people "being true to their faith or else respectful of the law" (at [35]).

53. The Government has not discharged the burden of demonstrating that a viable system of taxation would be unachievable by accommodating taxpayers with a conscientious objection to use of their tax monies for military purposes. That is perhaps not surprising, when the Government adamantly asserts that Article 9 rights are not engaged or interfered with. But it is unlawful nevertheless.

54. It is noteworthy that in Darby v Sweden the State's operation of its taxation system did involve a special fund, and opportunity to avoid paying taxes which went to fund the State Church: see Williamson at [165] and [191].

55. The Government has suggested three main reasons why a viable taxation system could not operate, were the conscientious objections of the claimants to be accommodated. First, it is said that this would involve an unfair cross-subsidy on the part of others non-objectors who were left to pay into the consolidated fund and from whose taxes all military purposes would be funded. That reasoning would presumably mean that conscientious objection would be similarly unfair because non-objectors would be the more likely to be conscripted. As the South African case explains (see above), this is a misuse of "equality". But in any event, the Government cannot show how the supposed prejudice would arise. Everyone would pay the same taxes, in full. It is simply that for those who have no conscientious objection to taxes funding military activities, a greater proportion of their tax money would go to military purposes; and for those who have such an objection, none would do so.

56. The second reason which has been suggested is that anti-vivisectionists, for example, might claim similar conscientious objection to the payment of taxes for funding animal experimentation. If there is such a "manifestation" of conscience, then it will already be evident in the withholding of taxes by such a person. It would be necessary to address their position and interest on its merits, to see whether it truly is on a parallel with that which arises in the present case. If it did, then it would indeed need to be accommodated, and the inability to do so would have to be demonstrated. As it stands, this is an unconvincing resort to floodgates.

57. Thirdly, it is said that no workable distinction could be identified which would accommodate the claimants' concerns. That is impossible to accept. Thus, were the Parliamentary draftsman dealing with the matter, as the Government accepts could in principle be done through the legislative process, a workable definition of military activities would not be beyond reach. This is a red herring.

Legislative compatibility

58. If there is an unjustified interference, the question arises as to whether it is one which is mandated by words in primary legislation which it is not "possible" to interpret compatibly with Article 9. Only if that is so, and strictly as a last resort, is a declaration of incompatibility necessary.

59. Subject to the views of the defendant and the intervention of the Crown, the claimants suggest that the strong adjuration of section 3 is capable of solving the problem. It is helpful to start with the 1891 Act. It is true that section 1(2) provides for monies on account of Inland Revenue to be "placed to an account". But there is an express proviso, "except as to sums legally paid thereout". If the claimants are right, the effect of their statutory rights under the 1998 Act is that there would be a legal obligation to ensure that the taxes of conscientious objectors to military activities were indeed "sums paid thereout". That would prevent them reaching the single fund, and compatibly with the Act there could be a separate account. Indeed, it is to be noted that section 1(3) refers to "accounts" of the Commissioners, being "kept in such manner and under such regulations as the Treasury prescribe or approve". Thus, the defendant could make appropriate regulations. That would deal with the position as regards the Inland Revenue.

60. The 1866 Act, and the position of the Exchequer, is more difficult given the wording of section 11. The question for the Court would be whether a "possible" reading of section 11 would allow an implied proviso to prevent monies becoming "monies paid into the Bank of England on account of the Exchequer", or whether it would be "possible" to imply provisos parallel to those in the 1891 Act.

61. The claimants would wish to address in further detail the question of legislative compatibility, and whether a declaration of incompatibility would be necessary, when the position of the defendant and the Crown is known.

Protective costs order

62. This is a case which raises a point of general public importance. It plainly warrants consideration, on full evidence and argument, at a substantive hearing. On granting permission for judicial review, absent prior agreement by the defendant, the claimants ask the Court to make a "cost-capping" order, for the following reasons:

(1) It is established that the Court can make such an order in an appropriate case: see the CND case.

(2) To their credit, the claimants (as their evidence will explain) have sought to raise funds for this litigation, and have been candid with the Court. Without a costs-capping order, this important case will be shut out. The claimants are able to submit to an order that their costs exposure in this case should not exceed £[tbc].

(3) This is a direct ECHR challenge, brought in the domestic Court by virtue of the HRA. If the claimants took their case to Strasbourg, they would face no costs risk: see Leach, Taking a Case to Strasbourg (London, 2001), at p14. In principle, the HRA is designed to have the effect that issues can be ventilated in the domestic Court rather than in Strasbourg. It is in the public interest that the English Court should be able to rule on the important Article 9 questions in this case. In exhausting domestic remedies, it is important that the claimants should be able to ventilate their human rights argument.

(4) In reality, in defending this claim, the Government could be in no worse position than in any legally-aided case, where in practical terms the Government is left to bear its own costs.

(5) In fact, by virtue of the costs cap, a fair balance is struck. The State has vastly superior resources to those of the claimants.

Conclusion

63. The Court is invited to allow this claim and grant the orders sought.

MICHAEL FORDHAM

DAVID PIEVSKY

Blackstone Chambers

PHIL SHINER

NUSRAT CHAGTAI

Public Interest Lawyers