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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Our reply to the Treasury's skeleton argument
against our appeal
This was our reply to the argument being put forward by the Treasury to the Court of Appeal.
Case No: CO/1698/2005
IN THE COURT OF APPEAL
R (Boughton) v HM Treasury
CLAIMANTS' REPLY SKELETON
toHMT's Hybrid Submissions
1. Sedley LJ's Order for Directions dated 21.11.05 allowed the claimants to reply to points made in HMT's hybrid submissions dated 14.12.05. These reply submissions should be read in conjunction with the claimants' skeleton argument (Appeal Bundle p.11) whose contents are not repeated.
(1) HM Treasury's Principal Case
2. HMT's case is that Collins J was right, for the reasons that he gave, to conclude that article 9 ECHR is not engaged.
3. However:
(1) HMT has not grappled with the points identified, both in theClaimant's Grounds (pp. 34 -50) and their skeleton argument (pp. 11-15) as to why the Commission's decision in C v UK no longer represents the legal answer in this case.
(2) HMT has not explained why Sedley LJ was wrong to observe (19.10.05) that: "For the reasons summarised in the present skeleton, I think it arguable that the jurisprudence is not homogeneous and the Art 9(1) door may at least be ajar".
(3) HMT has not dealt with the similar observations of Rix LJ in Khan (and Williamson) and Mummery LJ in Copsey, regarding the Strasbourg Commission's restrictive approach to the engagement of Article 9: claimants' skeleton §§5 and 7(c) (p. 13).
4. The position is:
(1) HMT's position remains (see judgment of Collins J below at §§8 and 14 (pp. 18 and 2)) that, absent the Strasbourg Commission authority on which it so strongly relies, there is an arguable basis in principle why a pacifist's conscientious tax objection is capable of being an Art 9 "manifestation".
(2) HMT appears to imply that C v UK is a case which has been recently endorsed by the Grand Chamber of the ECtHR in Sahin v Turkey (App.44774/98). But the passage in Sahin (§105) did no more than confirm a proposition (derived from Arrowsmith) found in C v UK (and in the other cases referred to at §105 - these are not said to support HMT in this case). The proposition is that "Article 9 does not protect every act motivated or inspired by a religion or belief". That proposition is common ground. See §27 of the claimants' Grounds for Judicial Review (p 41). Thus, it was the proposition for which the Grand Chamber cited C v UK (see HMT's skeleton §7).
(3) An act merely motivated or inspired by religion or belief is insufficient. But what suffices, in principle, is where a specific act expresses a serious and sincerely held belief, the act being compelled by the belief as a matter of perceived obligation. That is the position here: the claimants are conscientious objectors to military activity whose deeply held beliefs do not allow their participation through provision of their money - hence they feel impelled to withhold the military proportion until arrangements have been made for a separate fund.
(4) The 'perceived obligation' approach has authoritatively been accepted and applied by the English courts - in applying (not extending) HRA:ECHR Article 9. See Williamson (claimants' skeleton 7(d)). It is also reflected in Sahin itself (see §§76-78).
(5) The cases also amply demonstrate (claimants' skeleton §5) why the fact that a requirement is 'general and neutral' (emphasised in C v UK) is no longer a sound basis in principle for holding Article 9 to be unengaged. Sahin too reinforces this conclusion.
5. The present case has taken a wrong turn because the judge was persuaded by HMT's reliance on the C v UK cases as a "clear and constant line" which provide the answer. Permission for judicial review should have been granted.
(2) HMT's Evidential Summary
6. These things should be noted:
(1) HMT has been invited by the Court to set out in the round, a "summary" of the grounds on which HMT intends to contest this claim for judicial review, if permission is granted. That in fact is what CPR 54.8(4)(a)(i) requires.
(2) HMT's summary undoubtedly contains certain factual propositions which HMT considers it can "establish by evidence". See those matters expressly called "factual considerations" at §14. The claimants accept that those are matters of fact, and moreover the claimants do not consider that they can or would wish to take issue with those matters as sustainable on evidence.
(3) However, it must be recognised that HMT's summary also contains much in the way of submission (see §§15-40). It is helpful to have a summary of the submissions which HMT will be advancing (with supportive evidence) at a substantive hearing. But the claimants do not accept that these matters are "propositions of fact", sti1l less which it is accepted that HMT would be able to "establish by evidence". They are submissions, in this "hybrid" document (§1), which submissions HMT would develop, once its evidence is lodged.
(4) HMT's submissions at §§15-40 are not accepted and the claimants' position is that they could establish by way of rebuttal, were there evidence on these topics from HMT before the Court, that the Court should not uphold these points and/or so as to dismiss the claim for judicial review.
(5) HMT itself recognises that its position is and remains that it is not saying that these further points, on which it wishes to rely, constitute a knock-out blow. It maintains, as it did before Collins J below, that the basis for refusing permission for judicial review is the engagement point (C v UK). See HMT's skeleton §10: "It is on this basis alone that HMT Treasury invite the Court of Appeal to reject the renewed application."
(6) The claimants will seek to assist the Court by responding here in outline to the main points which have been raised.
(a) "No interference with article 9
7. HMT submits that there is no interference with the Claimant's religious beliefs because "there is no rational basis" (§17) for considering:
(1) that the present arrangements involve taxpayers' money being used for defence purposes (§15), since moneys are mixed and cannot be 'traced' and lose their separate identity in the consolidated fund; or
(2) that a separate fund (for non-military uses) would remove the problem, since military expenditure would continue as before, from the consolidated fund (§16).
8. The claimants respond as follows. It is entirely 'rational' for the claimants to consider:
(1) that payment of their tax monies into the consolidated fund does involve their being made to pay for the State's military activities. Indeed, HMT's insistence on its 'mixing' and 'tracing' points serves to emphasise the impossibility of saying that taxpayer money is not used for military purposes where it is in the consolidated fund;
(2) that a separate fund, not used for military purposes, would solve the problem and accommodate their conscientious objection by reconciling their wish to pay their taxes in full and their need to protect a suitable proportion of their taxes from the consolidated fund and so military use. That is a mature reconciliation which is to their credit.
9. The matter can be tested - suppose a body (public or private) seeking to impose a £100 levy, on the basis that it will later use 10%out of the fund for terrorism or torture. There would be nothing "irrational" about a person feeling impelled as a matter of conscientious belief not to pay more than £90 into that fund. In fact, even if HMT were right to suggest that the claimants do not go far enough and that the only "rational" response to deal with the problem, striking a justified balance, were a separate fund for the entirety of pacifist conscientious objectors' tax monies, so be it.
10. Further, it misses the point to ask whether the effect of a separate fund would be to "reduce the aggregate amount that the government spent on defence" (HMT's skeleton §16). The question is rather whether the dilemma of conscience would
be solved and reconciled.
11. But in any event it is not for the State (whether HMT or the Court) to characterise as 'irrational' serious and genuinely held beliefs and the lines which people draw as a matter of perceived obligation:
(1) The State does not, by reference to some "rationality" test, dictate to those who hold and reconcile religious or other beliefs - as to appearance, or food, or medical intervention - that their abstention is 'pointless' or their reconciliation 'misplaced'.
(2) HMT makes this very point (§29, but at the wrong stage of the argument). It is not for the State to impugn as 'irrational' or 'illegitimate' some serious and sincerely held belief as to what action is and is not compatible with fundamental values.
(3) The claimants' conclusions, as to what action is precluded and permitted as a matter of conscience, are genuinely and sincerely held as being impelled by their pacifist beliefs. Collins J rightly accepted this (§5 of the judgment below). As HMT had itself previously said: "We respect the views of your clients and their integrity in looking for solutions to their concerns".
(b) "Any interference is justified"
12. HMT make five submissions about justification. It is to be noted that:
(1) HMT does not say that it would not be "reasonably possible" to organise the sort of separate fund to which Collins J referred ijudgment §4). It is interesting that exceptions are made (HMT's skeleton §§14.2, 14.4).
(2) HMT does not grapple with the test in the CESA case (Grounds for Judicial Review §§21, 54).
(3) HMT does not say this would be detrimental to Government military policy or execution - elsewhere, HMT contends that there would be no change in substance from the point of view of the State's activities (HMT's skeleton §16).
(4) HMT does not say that it would be impossible to devise and draw a line to deal with pacifism (Collins J §3). Such a line has long had to be drawn in other areas - notably conscientious objection and military service.
13. Turning to HMT's five points. HMT's first answer concerns "non-excludable benefit" (§21). This is a bad, and dangerous, suggested answer. Would the death penalty, or even the Iraq War, be sought to be justified on the basis of 'safer streets'? The fact that the State will go ahead anyway, and would wish to satisfy a Court that the public as a whole benefits (or cannot escape such benefits as there are), cannot in principle be an answer overriding Article 9 beliefs. This has not been a good answer, in the view of the United Kingdom, on the question of conscientious objection to military service.
14. HMT's second answer concerns "the implications of acceding to the request".
HMT submits (§§25, 30) that 'pacifism' requires the drawing of a line, and people might fall on one side or the other.1 But it is the devising of a sensible mechanism which would constitute the striking of a fair balance. Moreover, it has expressly been recognised since Arrowsmith that pacifism is a belief which Article 9 protects, a protection which HMT's line-drawing point would empty of any effect.
(1) Next, HMT submits (§§27-28, 31) that there would be others able to make comparable claims, and that these are "almost infinite". That overlooks the status afforded to pacifism and assumes parity with other beliefs. Moreover, it asserts the existence of other equivalent "manifestations" - but HMT does not suggest that it can evidence any other situation where there is conscientious objection to tax on the basis of perceived obligation, still less that such situation as may arise -if it did - could not be addressed. This is a 'floodgates' argument, and one unsupported by any evidence or appraisal.
(2) Next, HMT submits that there could be "bogus claims" (§29), relying on the lack of scope for challenging their "authenticity". In the first place, HMT is confusing (a) the State's inability to impugn the 'rationality' of a serious and sincerely held view (the citation from Sahin) with (b) the separate question (which can certainly be questioned) of whether that view is indeed seriously and sincerely held. Secondly, the latter question inevitably arises in Article 9 cases, where it is and can be tested. There is no reason why (as with other contentious objection) 'bogus' claims cannot be tested and identified. HMT does not say, and certainly does not evidence, that this would not be reasonably possible.
(3) Finally, HMT refers to "administrative costll (§32), based on the "incalculable" implications of the suggested floodgates effects. This submission betrays the absence of any appraisal or evidential underpinning for the suggested justification. The claimants repeat §50 of the Grounds for Judicial Review.
1 HMT also misunderstands the evidence of the First Claimant (§§24). There is no conflict between her position and that of the other Claimants. She would, like them, be satisfied with an arrangement by which she paid her tax in full, but into the protected fund.
15. HMT's third answer is that there is "limited interference", the degree of interference with Article 9 rights being "extremely limited" (§20.3). HMT repeats its earlier (unfounded) attempt to suggest that there is non-interference. Requiring a person to act contrary to their conscience is not a trivial matter. The State could not be heard to say that forcing an orthodox Jewish person to work on the Sabbath, or an orthodox Muslim woman to bare her head, or a pacifist to fight in a war are to be dismissed as minor or trivial. For the claimants, the issue is about forcing them to behave in a way which they regard as an affront to their conscience and integrity. For similar reasons, HMT's bare reliance on "the community" interest (§21) should not be an answer, still less a complete answer, to an interference with a particularly important human right (Grounds for Judicial Review §§47-48).
16. HMT's fourth answer (§§36-38) is that the implications of an article 9 claim such as this as contrary to the democratic principle. This fundamental point betrays an error of approach.
(1) It is not anti-democratic to ask the executive to make an administrative adjustment to its practices for reasons of conscience. And as Lord Nicholls said in Williamson (at §15) (p. 345), respect for differing beliefs is a hallmark of a civilised society.
(2) It is wrong to characterize military spending as a "given" public service from which all must automatically benefit and from which none may be permitted conscientiously to dissent.
(3) The claimants readily accept the need for a fair balance. HMT refers to the community interest in providing a "defence service", but has not explained why that interest requires the claimants to violate their consciences and has attached no weight whatsoever to the other side of the scales. It cannot therefore have carried out the proper balancing exercise which is both central to the article 9 issue (c.f. SB(p 375)), and entirely compatible with properly understood concepts of democracy.
(4) HMT draws attention (§36) to Sahin and the concepts of balance and compromise, and accuses the claimants of not "making any concessions to the general interest of the community" (§37). This is striking, for two reasons. First because it is HMT who is seeking to defend a blanket scheme which strikes no balance and involves no compromise at all. Secondly, because the claimants have creditably identified a solution - which reconciles their fundamental problem of conscientious belief - which would involve paying (a) their taxes in full (b) for availability to the public purse (c) with the majority of their tax monies being available to the consolidated fund. That would be a balanced solution.
17. HMT's fifth and final answer is that the challenge "ignores Article lP" (§39). It does not: but Article lP is not the answer. See Grounds for Judicial Review §§38- 42. General taxation can be an answer to a claimed Article lP violation (as the express wording states), but that does not mean that no Article 9 violation could arise out of general tax measures (suppose the poll tax and priests living in poverty).
Conclusion
18. This judicial review claim is and remains arguable, as well as being of great public importance. The judge was wrong to refuse permission for judicial review. HMT has wrongly sought to maintain that it has some knock out blow. This is a claim which should have permission for judicial review. It is a claim which ultimately should succeed. No doubt HMT would wish an opportunity, for a substantive hearing, to consider and present the evidential position in support of its summary submissions. So be it.
.
MIKE FORDHAM
DAVID PIEVSKY
Blackstone Chambers
12 January 2006
PHIL SHINER
NUSRATCHAGTAI
Public Interest Lawyers
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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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