Human rights and tax wrongs

Published on 10 August 2005

Two recent cases on tax and human rights show the limitations of the Human Rights Act, enacted in the UK in 1998. The UK courts cannot use that Act to overturn laws properly enacted by Parliament, even if those laws are incompatible with human rights. To do that an applicant has to take his case to the European Court of Human Rights in Strasbourg, which alone can offer 'just satisfaction' for an infringement in the national laws of the UK.

Background

Of the two human rights tax cases recently reported, one has so far reached the House of Lords, the other has been heard by the European Court of Human Rights (ECHR) judges in Strasbourg. Both cases were brought by Liberty.

In PM v United Kingdom (note 1), the ECHR ruled that in granting tax relief on maintenance payments made by a married father, but not by an unmarried father, UK tax laws (note 2) discriminated unlawfully against the unmarried father. The UK Government was ordered to pay EUR 292 compensation for the tax relief which the applicant had been wrongfully refused, and EUR 7,900 costs and expenses. (The award of costs was somewhat less than the amount of his claim.)

In R v Inland Revenue Commissioners ex parte Wilkinson (note 3), a widower was left to bring up his children by himself after his wife's death, but the Revenue had denied him the tax allowance that widows in the same position were entitled to at the time. He failed in the UK courts to secure an allowance, because the Revenue could not be required to act contrary to the law made by Parliament (note 4), even if it was incompatible with the European Convention on Human Rights (the Convention).

Details of the cases

PM v United Kingdom

The applicant had lived with the mother of his child for ten years, without being married to her. He and his partner separated when the child was 6 years old, but he continued to pay maintenance to his partner for the child under a formal deed of separation.

At that time the tax laws of the UK allowed tax relief on maintenance payments made by one separated or divorced spouse to the other for the maintenance of a child of the family. Mr PM claimed this relief. The Revenue allowed his claim for 1997-98, but for 1998-99 they refused it, claiming that they had been mistaken to grant it for the previous year. The relief, they said, was only available to fathers who had been married to the mother of their child, not to unmarried fathers.

Mr PM appealed to the General Commissioners against the Revenue's refusal. On the morning of the hearing the barrister representing the Inland Revenue handed Mr PM, who represented himself, a large file of all the case law on which the Revenue sought to rely. When the Commissioners rejected Mr PM's appeal, it was on the grounds that the Human Rights Act 1998 did not apply to the case as it had only come into force on 2 October 2000 after the tax year in question. That illustrates the difficulties faced by unrepresented appellants in these matters.

The grounds of Mr PM's application to the ECHR were that in refusing him the tax deduction available to married fathers, the UK was discriminating against him as an unmarried father, contrary to article 14 of the European Convention on Human Rights. Article 14 states:

'The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on anyground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.'

 

Such discrimination interfered with his right to peaceful enjoyment of his possessions under Article 1 of the First Protocol to the Convention:

'Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

'The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.'

 

The right to a tax allowance counts as a possession in the context of this Article.

The UK Government argued before the ECHR that marriage and its breakdown entailed certain legal obligations and privileges which unmarried relationships did not, and this was an objective and reasonable justification for treating married and unmarried fathers differently. But the Court ruled that since Mr PM's financial obligations towards his daughter were no different from those of a married father, there was no reason for treating him differently.

The purpose of giving tax deductions to married fathers was supposedly to make it easier for them to support a new family. There seemed no reason why unmarried fathers, who undertook similar new relationships, would not have similar financial commitments which equally required relief.

Accordingly the ECHR held that Mr PM's human rights had been violated under article 14 of the Convention read with article 1 of the First Protocol, and awarded him compensation.

In the year following that for which Mr PM was finally awarded compensation, the allowance he had claimed was abolished for all but the over-65s.

R v Inland Revenue Commissioners ex parte Wilkinson

The tax allowance which Mr Wilkinson claimed was the widow's bereavement allowance (WBA) which was abolished for all taxpayers after the year 1999-2000. He would have been entitled to it if he had been a widow, but not as a widower. Two widowers - Mr Crossland and Mr Fielding - had already been to Strasbourg claiming that UK law infringed their Convention rights, and the UK Government had entered into a 'friendly settlement' with them. That was before the Human Rights Act 1998 had come into force.

The precise legal grounds on which Mr Wilkinson relied were that to grant a tax allowance to widows but not to widowers in the same circumstances was contrary to Article 14 of the Convention, read with Article 1 of the First Protocol - the same grounds as in PM v UK, above. But his aim was to persuade the UK courts to order the Revenue to make him a payment equivalent to the allowance he would have received had he been a widow, and to do so he had to show that the Human Rights Act 1998 required it.

In the end the Courts, up to and including the House of Lords, rejected Mr Wilkinson's claim. The Revenue did not dispute that the law was in breach of Mr Wilkinson's human rights, and offered no justification. But the Court held that the Revenue could not have acted differently, because of the way Parliament had framed the law, and the Revenue were bound to enforce a law even though it was incompatible with the Convention.

Conclusion

It remains to be seen whether the ECHR will compensate Mr Wilkinson, if he takes his case to Strasbourg, on the same basis as it compensated Mr PM. If it does, then it will have taught us a salutary lesson about the limitations of the Human Rights Act in this country. It will have shown that a citizen who wishes to challenge a national law may do so in the national courts, which may make a declaration that the law is incompatible with the Convention. If however he wishes to secure compensation or 'just satisfaction' for the infringement of his Convention rights, Strasbourg may be his only recourse.

So the enactment of the Human Rights Act 1998 has not after all shortened the long walk to Strasbourg for those whose grievance is against a piece of primary legislation that infringes human rights, and who seek redress. There are also costs implications - few unassisted applicants will wish to risk several thousand pounds of their own money in costs in return for token compensation. Mr PM did not recover all his costs before the ECHR - he (or his pro bono advisers) ended up some £900 short.

Finally, human rights law is not something that can be invoked whenever anyone feels they have been unfairly treated. It is a very precise and demanding area of jurisprudence, and the fundamental rights and freedoms granted to individuals are nearly always counterbalanced by a 'margin of appreciation' in favour of the state.

The Convention was drawn up by British lawyers in the wake of the Nuremberg trials, while Europe was reeling from the gross human rights abuses of the previous decade. Those worthy lawyers would probably have deemed the granting of a tax relief to A but not to B a fairly trifling matter in comparison with the crimes against humanity at which their draft document was targeted - torture, genocide, arbitrary detentions and executions, mass deportations, slave labour. That the Convention is so well drafted as to be an effective weapon against relatively minor infringements is to be welcomed, but it is not a panacea and human rights points should be raised with caution to avoid costly disappointment.

Note 1 App No 6638/03, decision given on 19 July 2005; [2005] All ER (D) 255 (Jul)
Note 2 Former ICTA 1988, s 347B
Note 3 [2005] UKHL 30 (5 May 2005)
Note 4 Former ICTA 1988, s 262

(10-08-2005)

Contact Name: Robin Williamson (Contact tel: 0844 579 6700, Fax: 0844 579 6701)