R v Commissioners of Inland Revenue, ex parte National Federation of Self-Employed and Small Businesses Ltd

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Wilberforce,Lord Diplock,Lord Fraser of Tullybelton,Lord Scarman,Lord Roskill
Judgment Date09 Apr 1981
Judgment citation (vLex)[1981] UKHL J0409-1

[1981] UKHL J0409-1

House of Lords

Lord Wilberforce

Lord Diplock

Lord Fraser of Tullybelton

Lord Scarman

Lord Roskill

Commissioners of Inland Revenue
(Appellants)
and
National Federation of Self-Employed and Small Businesses Limited
(Respondents)
Lord Wilberforce

My Lords,

1

The respondent Federation, whose name sufficiently describes its nature, is asking for an order upon the Commissioners of Inland Revenue to assess and collect arrears of income said to be due by a number of people compendiously described as "Fleet Street casuals". These are workers in the printing industry who, under a practice sanctioned apparently by their unions and their employers, have for some years been engaged in a process of depriving the Inland Revenue of tax due in respect of their casual earnings. This they appear to have done by filling in false or imaginary names on the call slips presented on collecting their pay. The sums involved were very considerable. The Inland Revenue, having become aware of this, made an arrangement, which I explain in more detail later, under which these workers are to register in respect of their casual employment, so that in the future tax can be collected in the normal way. Further, arrears of tax from 1977-8 are to be paid and current investigations are to proceed, but investigations as to tax lost in earlier years are not to be made. This arrangement, described inaccurately as an "amnesty", the Federation wishes to attack. It asserts that the Revenue acted unlawfully in not pursuing the claim for the full amount of tax due. It claims that the Board exceeded its powers in granting the "amnesty"; alternatively that if it had power to grant it, reasons should be given and that those given cannot be sustained; that the Board took into account matters to which it was not entitled to have regard; that the Board ought to act fairly as between taxpayers and has not done so; and that the Board is under a duty to see that Income Tax is duly assessed, charged, and collected.

2

The proceedings have been brought by the procedure now called "judicial review". There are two claims, the first for a declaration that the Board of Inland Revenue "acted unlawfully" in granting an amnesty to the casual workers; the second, for an order of mandamus to assess and collect income tax from the casual workers according to the law. These two claims rest, for present purposes, upon the same basis, since a declaration is merely an alternative kind of relief which can only be given if, apart from convenience, the case would have been one for mandamus.

3

In the Order which introduced the simplified remedies by way of judicial review (R.S.C. 0.53, dating from 1977), it is laid down (r.3(5)) that:

"The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates".

4

The issue which comes before us is presented as one related solely to the question whether the Federation has the "sufficient interest" required.

5

In the Divisional Court, when the motion for judicial review came before it, the point as to locus standi was treated as a preliminary point "Before we embark on the case itself", said Lord Widgery C. J., "we have to decide whether the Federation has power to bring it at all". After hearing argument, the court decided that it had not. The matter went to the Court of Appeal, and again argument was concentrated on the preliminary point, though it, and the judgments, did range over the merits. The Court of Appeal by majority reversed the Divisional Court and made a declaration that "the applicants have a sufficient interest to apply for Judicial Review". On final appeal to this House, the two sides concurred in stating that the only ground for decision was whether the applicants have such sufficient interest.

6

I think that it is unfortunate that this course has been taken. There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application: then it would be quite correct at the threshold to refuse him leave to apply. The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications. But in other cases this will not be so. In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and to the breach of those said to have been committed. In other words, the question of sufficient interest can not, in such cases, be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context. The rule requires sufficient interest in the matter to which the application relates. This, in the present case, necessarily involves the whole question of the duties of the Inland Revenue and the breaches or failure of those duties of which the respondents complain.

7

Before proceeding to consideration of these matters, something more needs to be said about the threshold requirement of "sufficient interest". The courts in exercising the power to grant prerogative writs, or since 1938 prerogative orders, have always reserved the right to be satisfied that the applicant had some genuine locus standi to appear before it. This they expressed in different ways. Sometimes it was said, usually in relation to certiorari, that the applicant must be a person aggrieved; or having a particular grievance ( Ex parte Greenbaum (1957) 55 Knight's L.G.R 129); usually in relation to mandamus, that he must have a specific legal right ( Reg. v. Guardians of Lewisham Union [1897] 1 Q.B. 498, Reg. v. Russell [1969] 1 Q.B. 342); sometimes that he must have a sufficient interest ( Reg. v. Cotham [1898] 1 Q.B. 802,804 (mandamus), Ex parte Stott [1916] 1 K.B. 7 (certiorari)). By 1977 when R.S.C. 0.53 was introduced the courts, guided by Lord Parker C.J., in cases where mandamus was sought, were moving away from the Lewisham Union test of specific legal right, to one of sufficient interest.

8

In Reg. v. Russell [1969] 1 Q.B. 342 Lord Parker had tentatively adhered to the test of legal specific right but in Reg. v. Commissioners for Customs and Excise: Ex parte Cook [1970] 1 W.L.R. 450, he had moved to sufficient interest. Shortly afterward the new rule (0. 53 r.3) was drafted with these words.

9

R.S.C. 0.53 was, it is well known, introduced to simplify the procedure of applying for the relief formerly given by prerogative writ or order — so the old technical rules no longer apply. So far as the substantive law is concerned, this remained unchanged: the Administration of Justice (Miscellaneous Provisions) Act 1938 preserved the jurisdiction existing before the Act, and the same preservation is contemplated by legislation now pending. The Order, furthermore, did not remove the requirement to show locus standi. On the contrary, in r.3, it stated this in the form of a threshold requirement to be found by the court. For all cases the test is expressed as one of sufficient interest in the matter to which the application relates. As to this I would state two negative propositions. First, it does not remove the whole — and vitally important — question of locus standi into the realm of pure discretion. The matter is one for decision, a mixed decision of fact and law, which the court must decide on legal principles. Secondly, the fact that the same words are used to cover all the forms of remedy allowed by the rule does not mean that the test is the same in all cases. When Lord Parker C.J. said that in cases of mandamus the test may well be stricter (sc. than in certiorari) — Reg. v. Russell (u.s.) and in Ex parte Cook (u.s.) "on a very strict basis", he was not stating a technical rule — which can now be discarded — but a rule of common sense, reflecting the different character of the relief asked for. It would seem obvious enough that the interest of a person seeking to compel an authority to carry out a duty is different from that of a person complaining that a judicial or administrative body has, to his detriment, exceeded its powers. Whether one calls for a stricter rule than the other may be a linguistic point: they are certainly different and we should be unwise in our enthusiasm for liberation from procedural fetters to discard reasoned authorities which illustrate this. It is hardly necessary to add that recognition of the value of guiding authorities does not mean that the process of judicial review must stand still.

10

In the present case we are in the area of mandamus — an alleged failure to perform a duty. It was submitted by the Lord Advocate that in such cases we should be guided by the definition of the duty — in this case statutory — and enquire whether expressly, or by implication, this definition indicates — or the contrary — that the complaining applicant is within the scope or ambit of the duty. I think that this is at least a good working rule though perhaps not an exhaustive one.

11

The Commissioners of Inland Revenue are a statutory body. Their duties are, relevantly, defined in the Inland Revenue Regulation Act 1890 and the Taxes Management Act 1970. Section 1 of the Act of 1890 authorises the appointment of Commissioners "for the collection and management of inland revenue" and confers on the Commissioners "all necessary powers for carrying into execution every Act of Parliament relating to inland revenue". By section 13 the Commissioners must "collect and cause to be collected every part of inland revenue and all money under their care and management and keep distinct accounts thereof".

12

The Act of 1970 provides (section 1) that "income tax… shall be under the care and management of the Commissioners". This Act contains the very...

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