Case No: CO/1698/2005
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
B E T W E E N: R (on the application of BOUGHTON and others) Claimants/proposed Appellants
H M TREASURY Defendant/proposed Respondent
1. The Claimants are asking for permission to appeal from the decision of Collins J refusing them permission to proceed in their claim for judicial review. Their case raises the important question whether the UK taxation system is compatible with article 9 of the European Convention on Human Rights.
2. There are seven Claimants, and they are known together as the “Peace Tax Seven”. Attention is directed to their Grounds for Judicial Review [tab 6A pp34-50], which sets out their claim. The Claimants are conscientious objectors to war (with a variety of religious and philosophical backgrounds), and they conscientiously object, in particular, to paying for war through paying taxes to central government (spent on war). They regard that as morally equivalent to fighting in a war, and conscientiously object to doing so. They do not seek exemptions from paying tax, or reductions to their bills. They wish to pay in full. But they cannot do so, consistently with their consciences, while there is no separate fund into which they can place a portion of their tax, where the contents of that separate fund are not to be used to pay for war or its weapons. Their case is that the Defendant’s failure to set up such a fund represents an interference with the Claimants’ article 9 rights, and one which falls to be justified. The Defendant has refused to set up a separate fund, and disputes that it is required to justify such refusal as something which interferes with their article 9 rights.
3. It is not difficult to see why the refusal to set up a peace tax fund does engage the article 9 rights of those who, like the Claimants, have a genuine, fundamental, conscientious objection to paying for war. The current situation puts them in the invidious position of having to choose whether to obey the law of the land or to obey the dictates of their conscience. That state of affairs puts them in a painful dilemma of conscience that states should take steps to avoid, “wherever reasonably possible” (see for example, Christian Education South Africa v Minister of Education (2000) 9 BHRC 53 (Constitutional Court of South Africa) per Sachs J at  [tab 11/12 p278], recently endorsed by Lord Walker in R v Secretary of State for Education and Employment ex parte Williamson  2 WLR 1590 (HL), at  [tab 11/15 pp363-364]). The refusal to do so amounts, at the very least, to an “interference” with a right to manifest a religious or conscientious belief.
4. However, as the Claimants have recognised from the outset, over twenty years ago, an argument similar to theirs was rejected by the European Commission on Human Rights: see C v UK (1983) 37 CR 142 [tab 11/7 pp221 - 227]. The Defendant contends that that renders the present claim unarguable, at the “interference” stage of the analysis. The Judge agreed.
5. The essential problem with that reasoning, however, is that the key rationale of the Commission in C v UK was one that has subsequently been discarded and not followed both by the European Court of Human Rights and by the domestic Courts. Whereas in C v UK, there was said to be no interference because the provision was “general” and “neutral”, it is now clear that “general” and “neutral” measures can and do engage article 9 and thus require justification: see, e.g., Buscarini v San Marino (1999) 6 BHRC 638 (ECtHR) [tab 11/10 pp249-257] (general requirement for parliamentarians to take a religious oath) and Sahin v Turkey (29 June 2004, appl 44774/98, ECtHR) (headscarf ban) (ECtHR), Williamson [tab 11/15 pp339-374] (general ban on corporal punishment) and R (SB) v The Headteacher and Governor of Denbigh High School  EWCA Civ 199 [tab 11/16 pp75-397] (ban on dress dictated by religious conscience). As Rix LJ has pointed out in the case of Khan v Royal Air Force Summary Appeal Court  EWHC 2230 at , [tab 11/14 p334] the earlier approach of the EComHR is somewhat formal and is to be distinguished from the current (and, it is submitted, the correct) approach. The Judge, in refusing permission, said that he saw the force in that [tab 4 p22, para 14]. And the Defendant, at the permission hearing, accepted that were it not for the old EComHR authority it would be difficult for it to dispute that the Claimants have an arguable claim.
6. The Defendant appears only to have prevailed at the permission hearing because the Judge was persuaded that the Commission’s decision in C v UK represented a “clear and constant” line of authority which, following Lord Bingham’s comments in R (Ullah) v Special Adjudicator  2 AC 323 at  [tab 6B/6 pp85-86], must be followed notwithstanding its difficulties. It must follow that if the Judge was arguably wrong about C v UK representing a “clear and constant” line of authority, then permission should have been granted. The question therefore is whether the C v UK case is now out of step with subsequent jurisprudence on article 9 or not.
7. As to that, the following facts are relevant:
a) The “line” of authority relied upon by the Defendant is insufficiently long, principled, or consistent to be “constant”. There is nothing from the European Court of Human Rights (only the Commission), and nothing recent;
b) The reasoning in C v UK, the leading case said to stand in the way of the Claimants, is unclear and problematic. If, for example, a “dictate” of conscience is not enough to engage article 9, it is very difficult to see why forcing a Muslim, who believes she is compelled to wear a headscarf, to remove it, or preventing a Christian who believes he is compelled to discipline his child in a way which includes corporal punishment, from sending his child to a school where such punishment is available, is. And if the “generality” of a provision is sufficient to prevent article 9 from being interfered with, then it would be no interference for the state to prohibit the growing of facial hair, or the wearing of headgear, or for it to proscribe certain diets or certain compulsory oaths all of which plainly have potentially serious consequences for those with religious beliefs;
c) It has repeatedly been recognised in recent times that the earlier approach of the Commission is formalistic and problematic. See Khan (above), and also now Copsey v Devon Clays Ltd  EWCA Civ 932 per Rix LJ at [61 - 62] [tab 11/17 p418] and Mummery LJ at  [pp409-410] (the judgment of which, as it happens, was handed down in the Court of Appeal on 25 July 2005, while the hearing in front of Collins J in these proceedings was taking place). Quite apart from the conceptual problems there identified, the effect of Rix LJ’s analysis in Copsey (at paras   [pp419-420]) is that the existence of a single adverse decision of the European Commission of Human Rights is not a “clear and constant” line of authority which stands in the way of an English litigant complaining to an English Court of a breach of his human rights;
d) The reasoning in the recent domestic cases of Williamson (per Lord Nicholls at paragraph 32 [tab 11/15 p351]) and SB (per Brooke LJ at paragraph 49 [tab 11/16 p386]), by contrast, is clear, principled, workable, and up to date, and should be followed in domestic article 9 cases. These two cases show that, in principle, preventing a person from acting in accordance with a sincerely held perceived absolute religious or conscientious obligation to act in a specific way (subject to that obligation passing certain threshold tests of coherence, seriousness and consistency with basic standards of human dignity or integrity) suffices to engage article 9.
8. The Claimants respectfully submit that it would be unsatisfactory, and an odd result, for permission to bring a judicial review to be refused on the basis that legal reasoning dating from the 1980’s, and concerning a particular right under the Convention (art 9), made the claim “unarguable”, where such reasoning does not stand with decisions of the House of Lords and the Court of Appeal dating from 2005, construing and applying that very right. The Claimants, as the Judge and the Defendant have accepted, have a genuine conscientious dilemma about a matter of great importance to them and to others. Their case passes the (relatively low) threshold for granting permission in a judicial review case. They respectfully ask for permission to appeal from the Judge’s Order (and for permission for judicial review) in order to have their claim properly ventilated.
9. For these reasons the Claimants respectfully ask the Court for permission to appeal on the basis that the appeal has a real prospect of success, and/or, pursuant to CPR r 52.15(3), for permission to apply for judicial review.
Public Interest Lawyers
21 September 2005