R (Wilkinson) v Inland Revenue Commissioners
| Jurisdiction | UK Non-devolved |
| Judge | LORD BROWN OF EATON-UNDER-HEYWOOD,LORD SCOTT OF FOSCOTE,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD NICHOLLS OF BIRKENHEAD |
| Judgment Date | 05 May 2005 |
| Neutral Citation | [2005] UKHL 30 |
| Court | House of Lords |
| Date | 05 May 2005 |
[2005] UKHL 30
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Lord Scott of Foscote
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, with which I agree, I would dismiss this appeal.
Introductory
My Lords,
The appellant Mr Wilkinson is a widower. His wife died on 23 June 1999. If he had been a widow, he would have been entitled to a widow's bereavement allowance by way of deduction from his liability for income tax under section 262 of the Income and Corporation Taxes Act 1988 (" ICTA"):
"(1) Where a married man whose wife is living with him dies, his widow shall be entitled?
(a) for the year of assessment in which the death occurs, to an income tax reduction calculated…[etc]
(b)(unless she marries again before the beginning of it) for the next following year of assessment, to an income tax reduction calculated…[etc].
There was no similar allowance for widowers.
After the death of his wife, Mr Wilkinson learned that other widowers had been complaining that the tax law was unfairly discriminatory. In 1997 Mr Christopher Crossland petitioned the European Court of Human Rights, alleging that the law infringed article 14 read with article 8 of, and with article 1 of the First Protocol to the Convention. The Government did not contest the admissibility of his claim and in September 1999 it reached a friendly settlement by which it paid Mr Crossland £575 (the value of the tax reduction to which he would have been entitled) and his costs. It did the same when a Mr Fielding petitioned on 17 June 1997.
At the time when Mr Crossland and Mr Fielding petitioned, the Human Rights Act 1998 had not yet come into force. Even if section 262 of ICTA infringed Convention rights, they would have had no claim in domestic law. But after the 1998 Act came into force on 2 October 2000, Mr Wilkinson wrote to the Inland Revenue making a claim for an allowance under section 262. He said that having to pay tax is something which affects a citizen's "peaceful enjoyment of his possessions" within the meaning of article 1 of the First Protocol. Article 14 therefore requires that in matters of taxation there shall be no discrimination on grounds of sex. The refusal of an allowance was therefore an unlawful act (or failure to act) by the Revenue under section 6(1) of the 1998 Act:
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
The Revenue at first denied that the allowance came within the ambit of article 1 of the First Protocol, but they no longer do so. Nor have they put forward anything by way of justification for the discrimination. It was in fact removed when section 34 of the Finance Act 1999 abolished the widow's allowance in relation to deaths on or after 6 April 2000.
The Revenue take no point on the fact that the tax year for which the relief is claimed by Mr Wilkinson had expired before the 1998 Act came into force. They admit that the refusal of allowances to widowers was a breach of their Convention rights. But the Revenue say that the application of section 6(1) is excluded by section 6(2):
"Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."
The Revenue say that they have no statutory power to make widowers an allowance. It follows that they "could not have acted differently" within the meaning of section 6(2)(a). Mr Wilkinson responds that they do have such a power. It is derived from section 1 of the Taxes Management Act 1970 (" TMA") which says that income tax "shall be under the care and management of the Commissioners of Inland Revenue". That, says Mr Wilkinson, gives the Revenue a discretionary power to grant extra-statutory concessions which could include making allowances to widowers. In order to act compatibly with the Convention rights, they are therefore obliged to do so.
The Revenue deny that section 1 confers so wide a power as to enable them to create an allowance for widowers when Parliament plainly intended to grant one only to widows. Furthermore, they say that even if they had such a discretionary power, they would be protected by section 6(2)(b). In giving the allowances to widows, they would be giving effect to section 262 and without reliance upon the allowances to widows under that section, no case of discrimination can be made out.
Finally, Mr Wilkinson says that it is irrational or an unfair abuse of power to treat him differently from Mr Crossland and Mr Fielding merely because he has not petitioned the Court in Strasbourg. If they were entitled to payment, so should he be.
Moses J accepted Mr Wilkinson's argument that section 1 of TMA enabled the Revenue to make allowances to widowers when failure to do so would lead to a violation of Convention rights. It followed that section 6(2)(a) of the 1998 Act did not apply. The Revenue could have acted differently. But he said that section 6(2)(b) applied. In giving allowances only to widows, the Revenue was giving effect to section 262. Mr Wilkinson therefore had no claim under the 1998 Act. He also rejected the argument that the Revenue was not entitled to treat Mr Wilkinson differently from the earlier Strasbourg petitioners.
The Court of Appeal dismissed the appeal for rather different reasons. They did not accept that section 1 of TMA gave the Revenue power to grant an extra-statutory allowance. It followed that the commissioners could not have acted differently and were protected by section 6(2)(a). If the Court of Appeal had agreed with Moses J on the breadth of the power under section 1 of TMA, they would have disagreed with his conclusion that section 6(2)(b) applied. That section, they said ( [2003] 1 WLR 2683, para 52), was concerned with?
"the grant by Parliament of a statutory power which, regardless of the circumstances in which it is exercised, will inevitably be incompatible with Convention rights."
That was not the case here, where the exercise of the power under section 1 of TMA would have enabled the commissioners to give effect to Convention rights.
Finally, the Court of Appeal agreed with Moses J in rejecting the argument based on unequal treatment compared with the Strasbourg petitioners.
It will be seen that some of the issues which arise in this appeal are similar to those in the case of Hooper v Secretary of State for Works and Pensions [2005] UKHL 29, in which judgment is also being given this morning. I do not propose to repeat the views which I and other noble lords have expressed in Hooper's case but will merely cross-refer as occasion arises.
Construction
Before your Lordships, Miss Dinah Rose raised, with leave, an entirely new point on behalf of Mr Wilkinson. She submitted that it was possible to read section 262 as including widowers. If it was, that was an end of the matter. He had a statutory entitlement to an allowance.
The foundation for this submission was section 6 of the Interpretation Act 1978, which provides that "unless the contrary intention appears…words importing the feminine gender include the masculine". Miss Rose accepts that ICTA is brim-full of indications of contrary intent. The purpose of section 6 is to save the parliamentary draftsman from having to say "he or she" or to find awkward gender-neutral terms. But Part VII of ICTA, which deals with personal reliefs, has no difficulty in finding a gender-neutral term when it wishes to be gender-neutral. It says "individual" (section 256(1)) or "spouse" (section 259(4), now repealed). And section 258 (also now repealed) which gave an allowance for a widower with a housekeeper, provided in subsection (4) that the section?
"shall apply to a claimant being a widow as it applies to a claimant being a widower".
There is no similar extension in section 262.
Thus it is clear that by no process of interpretation, attempting to ascertain what a reasonable reader would understand the notional author of the text ("Parliament") to have meant by using those words in their context, could "widow" in section 262 be read to include "widower". But Miss Rose says that does not matter. Section 3 of the 1998 Act is a counterweight which neutralises the indications of contrary intent in section 262 itself and the context provided by the rest of Part VII of the 1988 Act. Section 6 of the Interpretation Act shows that it is possible to read section 262 compatibly with the Convention and therefore one should do so.
I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the "principle of legality" meant that statutes were construed against the background of human rights subsisting at common law (see R v Home Secretary, Ex p Simms [2000] 2 AC 115), so now, section 3...
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