War taxes and freedom of religion, belief and conscience
1. We are contemplating the need to bring judicial review proceedings, which we are anxious to avoid if we can secure the accommodation which our clients need. Please treat this letter as a letter before claim.
2. We act for seven individuals who believe that it is wrong, as a matter of religious belief and/or conscience, to pay taxes that fund government spending on war. Their names and tax details are as follows:
(The PT7's names etc.)
3. All seven object as a matter of conscience to paying for war, and in particular for what they regard as the immoral, unjust and unnecessary war in Iraq. Four (Mr Brookes, Mr Heywood, Mr Prockter and Ms Völlm) are Quakers, one (Ms Cooper) is a Buddhist and one (Ms Boughton) is a Christian. The seventh (Mr Jenkins) has no religious affiliation but has a firm philosophical objection to the war in Iraq -please confirm]. All of these individuals passionately hold conscientious objections to paying taxes which are spent on war making. They are happy to provide further details as to the strength and basis of their position of conscience should, as we hope, the government be prepared to consider their stance with a view to seeking to accommodate it.
4. Our clients wish to emphasise that they do not object to paying tax in principle. They are all law-abiding citizens and actively wish to contribute to society. Nor do they wish to pay a penny less than the whole amount of tax due from them to the government. They are entirely willing, and indeed, have repeatedly tried, to do so. All of their attempts to pay a proportion of the tax bill (usually around 10%) to a non-objectionable government recipient (such as the National Health Service (Mr Jenkins) or the International Development Department (Ms Völlm have been met by the refusal of the Inland Revenue to accept such payments, insisting that all tax must be paid into the (undifferentiated) Consolidated Fund.
5. This causes our clients an acute problem of conscience. The government insists that all taxpayers provide money to it without differentiation, and refuses either to permit an individual to pay a proportion of his tax bill, on grounds of religion or belief, to a particular government recipient, or to set up any separate fund into which tax can be paid while being earmarked for purposes other than war. The existing state of affairs compels our clients in effect to fund actively war which they cannot in good conscience defend or support. That raises issues which are particularly acute following the illegal war in Iraq.
6. It is interesting and instructive to compare our clients with those who conscientiously objected to fighting in wars, at a time when compulsory military service was in place. The British government has consistently recognised the legitimacy of such conscientious objection. The government has always recognised the appropriateness and justification for making administrative provisions, this being found to be reasonably practicable, to accommodate the position of those who as a matter of genuine conscience cannot participate in a general activity of the state.
7. Our clients recognise that they live in a democracy in which people are allowed to and do hold different and sometimes competing views. They want to pay no less than the amount of tax properly due from them and have no wish to disrupt civil society. In the current framework they are unable to achieve this wish. On the contrary, they are forced to choose between conscience and compliance. They should not have to do so.
8. We are aware of the case of C v United Kingdom (1983) 37 DR 142. That was an admissibility decision of the European Commission of Human Rights. The applicant claimed that he should have the opportunity to pay a proportion of his taxes into a fund limited to non-military uses. The Commission ruled, in December 1983, that the application was manifestly unfounded. It concluded that there was no "interference" with any Article 9 rights, given that (1) taxation obligations were general and neutral, (2) the power of taxation was recognised by the Convention system (see Art IP) and (3) the applicant could express his attitude through the democratic process. There being no Art 9(1) "interference", in the view of the Commission, no question of justification and proportionality (Art 9(2)) arose.
9. We do not consider that such an approach could be sustained on the modern operation of the Convention. The court would not be bound to follow an admissibility decision from 2 decades ago, and would examine the reasoning against the principles of the Strasbourg jurisprudence. The reasoning in C could not withstand analysis, and the correct conclusion would be that there is indeed an "interference" which can therefore only be lawful if the state can convincingly establish a justification, by reference to the twin requirements of necessity and proportionality. We ask you to confirm that you accept this is so.
10. Turning to the Commission's reasons. (1) A measure does not avoid constituting an "interference" with a Convention right because it is general and neutral. Thus, for example, a general measure prohibiting headwear in public would be an "interference" with the Article 9 rights of those whose religious convictions require the head to be covered. So would a measure compelling military service. Or a general rule requiring trainee nurses to participate in all operations (including abortions). Whether any such measure is lawful would depend on whether it was justified. The generality and neutrality would be relevant to (though could not be decisive on) that question, but would not prevent the "interference" having arisen. (2) The power of ("necessary") taxation is certainly recognised by the Convention system, but that cannot suffice. So, for example, is the power of preventing immigration entry or effecting immigration removal (Art 5(1)(f)). Yet the application of the ECHR (as a living instrument) recognises that such sovereign rights can involve interference with other rights (eg. Article 9 itself): see most recently Ullah HL. (3) The opportunity to express matters of conscience through the democratic process is of course important, but its guarantee cannot of itself prevent Convention "interference". The headwearing adherent, the objector to military service, the trainee nurse, and the would-be deportee would all be entitled to freedom of expression. But the absence of a violation of Article 10 could not dictate the answer to whether there was an interference with Article 9 rights.
11. Turning to the question of justification and proportionality, we have identified an approach which we say assists. The starting point is that freedom of thought, conscience and religion is a foundation of a democratic society. It runs alongside (but cannot be eclipsed by) the state interest in levying taxes under the laws of the land. As the South African Constitutional Court explained in Christian Education South Africa v Minister of Education (2000) 9 BHRC 53:
...believers cannot claim an automatic right to be exempted by their beliefs from the law of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.
12. This is a helpful approach which we would commend to the government and would invite a Court to adopt. All our clients ask is that the government takes reasonably possible steps to allow them to pay their taxes in good conscience. That means a separate fund into which a proportion of tax can be paid, it being guaranteed that money in that fund would not be allocated to war and the weapons of war. The consequence of not doing so is to continue to put our clients, unlawfully, to the "extremely painful and intensely burdensome" dilemma referred to above.
13. Conversely, absent such an accommodation, all our clients ask is that the government convincingly demonstrate that (a) it has satisfied itself and (b) it can satisfy a court that it has considered all options and that there is no reasonably possible means in which taxation arrangements could be made to accommodate objection based on a pressing and legitimate matter of conscience as graphically illustrated by this case. Why, if it was reasonably possible to do it for military service (where persons were exempted from participation), is it not reasonably possible to do it by administrative arrangements (where there would be full-contribution but an earmarking of a conscientious objector's contribution) ?
14. We ask you please to confirm the following:
(1) do you (a) support the Commission's decision and reasoning on non-interference in C v UK or (b) accept that it cannot stand?
(2) do you accept that, under the present tax arrangements, our clients have a legitimate dilemma of conscience between being paying their taxes and being true to their conscience?
(3) is it your position that under the ECHR the government is entitled, as a matter of policy, and without more, to administer the taxation system in whatever way it sees fit and without regard to considerations of justification and proportionality?
(4) alternatively, do you accept that in principle you must justify the administrative arrangements, where they constitute an interference with a genuinely held and legitimate position of conscience such as that of our clients?
(5) in particular, do you accept that any continuing failure to administer a separate fund, available to our clients, would need to be justified by demonstrating that such a fund would not be reasonably possible to administer?
(6) in the light of your answers, is the government now willing to make such administrative arrangements available to our clients?
15. We appreciate that these are important questions, and that you may need time to reflect and make inquiries. We would very much appreciate a response within 28 days, but you will no doubt keep us informed if you feel the government needs a longer period. Our clients would look to litigation only as a last resort. They would obviously much prefer government to recognise its legal responsibilities and provide a practical solution.
Public Interest Lawyers