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The case so far

Freedom of conscience is guaranteed as a basic human right by the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights (ECHR), which was signed on 4th November 1950 by the members of the Council of Europe, including the UK, and ratified by the UK government in 1951, coming into force on 3rd September 1953. Article 9 of the ECHR reads as follows:

Article 9 - Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his [sic] religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. 


The standing of the ECHR in UK law has changed slightly since 1953. In 1966, individual UK citizens obtained the right of "individual petition", that is, the right to take a case to Strasbourg. The legal standing of the ECHR is now defined by the 1998 by the UK Human Rights Act (HRA) which came into force on 2nd October 2002. The HRA further facilitates the process of petition by allowing cases relating to the ECHR to be heard in UK courts. Also, the HRA defines the standing of the ECHR in domestic UK law. Section 3 (1) "Legislation" of the HRA reads: 

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. 

Section 6 (1) reads: 

It is unlawful for a public authority to act in a way which is incompatible with a Convention right. 

1. The relevant principle enshrined is proportionality - the principle that the exercise and protection of Convention rights by the courts must be proportional to the needs of society. The principle of proportionality offers a defence against the state overriding an individual right through disproportionate action. 

The Peace Tax Seven believe that, under the terms of the HRA:

  • UK tax policy of compulsory military contribution is incompatible with article 9 of the ECHR, because it denies "freedom of thought, conscience and religion" to an extent which is disproportionate to the actual needs of society. 

  • This disproportionality in its tax policy brings the UK government into breach of section 6(1) of the Human Rights Act 1998. 

  • The Peace Tax Seven, and all other war tax resisters, are therefore victims of unlawful action by a public authority. 

  • The Peace Tax Seven are therefore justified in seeking redress by an application for a judicial review. 

  • The proper course of action for the High Court in response to this application is to issue a declaration of incompatibility relating to UK tax law and article 9 of the ECHR. 

  • The proper course of action for the government in response to a declaration of incompatibility is a change in UK tax policy, either by direct action by the relevant Minister (the Chancellor of the Exchequer), or by Act of Parliament. 


What are they not saying:

1. Firstly, some war tax resisters, including some of the PEACE TAX SEVEN, have previously reserved amounts of tax due, pending assurance that their tax contributions will not be used to fund military expenditure - that is, acts of unaccountable mass violence. We have received no such assurance. Therefore, like many others, we have reluctantly chosen to face prosecution on this issue. We abhor this anomalous state of affairs, and we are bringing this case in order to end it. We are not, therefore, seeking to undermine the law. We do not condone or promote lawlessness. Rather, we are seeking to uphold the law by bringing it to bear on an immoral tax policy which, we believe, has no sound legal basis. 

2. Secondly, by bringing this case, we are not expressing any view regarding UK party politics, or the political consequences of UK participation in the 2003 invasion of Iraq. We believe that the invasion was immoral and abhorrent, and we hold to what we understand as the consensus view of expert legal opinion, that it was in breach of United Nations Security Council Resolution 1441, and thus an act of unprovoked aggression against a sovereign state, contrary to international law as such - in a word, that it was a war crime (see especially paragraphs 11-12 of UNSCR 1441). But these moral convictions are not party political opinions. Moreover, the Iraq war has no direct bearing on our legal case, except as an example of one war to which taxpayers who funded it will justifiably object in conscience - as many did. But our concerns are more basic. We are upholding a fundamental, apolitical human right to freedom of conscience, on behalf of each and every UK taxpayer - those who supported the 2003 invasion no less than those who opposed it. Even those who supported the invasion may feel compelled in conscience to oppose other military actions in the future. Under current tax arrangements, they will have no choice but to pay for them. Our concerns with freedom of conscience transcend any case-by-case judgement of the morality of specific wars. These are, in any case, overruled by current tax policy, according to which, nobody can possibly know which future wars they are currently paying for, still less whether they will support them. 

3.Thirdly, by bringing this case we are not seeking to advocate any general principle that taxpayers should only fund policies which they support. Over the years our taxes have already been spent on many peacetime policies which we have opposed as individuals. War is an exceptional case, as it involves the deliberate taking of human life. 

PLEASE NOTE:  Specialist and further queries regarding the legalities of the case should be addressed to Phil Shiner at Public Interest Lawyers

Article 9 and the beliefs of the Peace Tax Seven

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.
 

Yours faithfully,

Public Interest Lawyers

The Letter Before Action - 21/07/04

From the Legal Adviser's Office 18th August 2004
 

Dear Mr Shiner
 

Re: War Taxes and Freedom of Religion, Belief and Conscience.
 

Thank you for your letter of 21st July 2004 addressed to the Chancellor of the Exchequer, and copied to the Treasury Solicitor. I have been asked to reply.
 

I should first explain that your letter is not being treated as a letter before action. It does not contain basic information essential to such a letter, such as the identification of the decision it is proposed to challenge, or the statutory provisions, if any, at issue. Such information is a necessary prerequisite to determine the identity of the appropriate defendant to any challenge. To that extent I have had to consult colleagues from HM Treasury as well as the Inland Revenue in drafting this reply.
 

The contents of your letter have been considered carefully and noted, including by policy colleagues in the above departments. I am not able to comment on the political issues which you raise. If new legislation is sought to alter the longstanding basis upon which taxes ere administered, then that is a matter which can be pursued through the appropriate political processes (e.g. a Private Members Bill) and they are not issues for those who administer the law or for the Courts.
 

Insofar as you refer to Article 9 of the European Convention on Human Rights (ECHR) it has been the consistent approach of the European Court that such issues do not engage Article 9 ECHR. Far from the Court indicating any change of stance from that taken in C v UK (and a number of other similar cases to which you have not referred), the recent case law affirms the established principles.
 

In C v UK the European Court stated:
 

"in protecting this personal sphere. Article 9 of the Convention does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief: for instance by refusing to pay certain taxes because part of the revenue so raised may be applied for military expenditure. The Commission so held in Application No. 7050 (Arrowsmith v United Kingdom Comm Rep para 71 DR 19 p 5). where It stated that "the term 'practice' as employed in Art 9(1) does not cover each act which is motivated or influenced by a religion or a belief'" [emphasis added]
 

It is notable that the Court has confirmed the scope of Article 9 ECHR as set out in C v UK in the recent case of Pretty v United Kingdom (Application no, 2346/02) where it reiterated the established principle that:
 

'the term 'practice' as employed in Article 9 (1) does not cover each act which is motivated or influenced by religion or belief (see Arrowsmith v United Kingdom No. 7050/77..)" (paragraph 82 ) and it rejected the claim under Article 9 ECHR.
 

In C v UK. the European Court emphasised the importance of the neutrality of general taxation, where no individual taxpayer could influence or determine the purpose for which his or her contributions are applied once they are collected, In this way general taxation is neutral between religions and belief systems, so that none is favoured. You should note that a system which is not neutral could in itself contravene Article 9 ECHR and introduce the risk of discrimination.
 

In line with the established legal authorities, it is not considered that the collection of taxes engages Article 9 ECHR on the basis suggested and so the question of justification of any interference of the qualified rights thereunder does not arise. A general and neutral basis for the administration of taxes is clearly justified to ensure that a viable system of financing activities in the public interest is maintained to ensure the safety of the public, the protection of law and order and the protection of the rights and freedoms of others.
 

Further, I note that no detailed provisions have been provided by your clients which would define a system that would be acceptable to all of them, let alone all the differing interests of the public at large. It remains unclear what expenditure would and what would not be objectionable. Views may differ, for example, on whether it is objectionable to expend funds on the protection of the public from terrorism, or the protection of individuals at risk of assassination due to their public duties, or military peace-keeping forces such as those attempting to assist in building a stable environment In Sierra Leone, or indeed carrying out other humanitarian work such as food drops and peace-keeping duties in other parts of Africa.
 

I am sure that you would also agree that it would be difficult to justify derogating from the principle of neutrality solely in the case of pacifism but not for similarly seriously held beliefs and opinions such as those held by anti-vivisectionists who may object to spending on certain medical research or drugs which have been tested on animals. Furthermore, setting up individual budgets to cater for a whole range of deeply-held convictions would not only be difficult, taking into account the scope of such myriad opinions and beliefs, but would also be disproportionate in terms of cost.
 

In addition, where military expenditure represents only a certain limited portion of public expenditure, for any individual to consider that his or her contribution is automatically assigned for use solely or largely for military purposes rather than on spending in other areas, does appear to be something of a personal assumption, which might prove difficult to substantiate.
 

Even if your clients were to assume that they were in fact contributing towards expenditure on the military, there is also the issue of fairness towards all other taxpayers which has to be considered. If some taxpayers were, on grounds of conviction, to decline to contribute to public services from which they still benefit, such as the defence of the realm, this could give rise to other taxpayers in effect subsidising through their taxes those who are not paying for such services, but who are nonetheless continuing to benefit from them.
 

These are issues which, it appears, would fall to be considered more properly in the political sphere, alongside all the other issues which concern the allocation of public funding.
 

Yours sincerely,

Kevin Hart

Treasury Legal Advisers

The Treasury's Reply - 18/08/04

Dear Mr Hart 
 

Re: War Taxes and Freedom of Religion, Belief and Conscience. 
 

We refer to our earlier correspondence: our letter dated 21 July 2004 and your reply dated 18 August 2004. For convenience, further copies are enclosed. 
 

We and our clients would like to thank you, and your colleagues at HM Treasury and the Inland Revenue, for the care and clarity with which you have addressed this important issue, and for raising the various questions and concerns with which you felt we needed to deal. 
 

You observed that you would not be willing to treat our letter as a formal letter before claim, not least given the need for further consideration and a clearer exposition of matters such as identification of: (1) the decision proposed to be challenged; (2) any statutory provisions at issue; and (3) the appropriate defendant. You also commented that you would need and welcome further clarification in relation to how to define the system which we say would avoid violation of our clients' Article 9 rights. 
 

Having carefully reflected with our clients on these and the various other points you raised, we accept that it is appropriate for a further and more formal letter to be written before any pursuit of the proposed legal challenge. We accept that, in a matter as important and sensitive as this, it is important that the shape and clarity of the legal challenge be the subject of very conscientious reflection and communication. 
 

In the circumstances, in order to make maximum use of this pre-claim stage, in the light of your observations, we felt it would be wise to ask Counsel to undertake comprehensive research and analysis, and then to formulate in draft form an outline of grounds on which it would be proposed to move the Court. This they have done, and the product of that exercise is enclosed herewith. 
 

We trust that you will be in a position now to accept that you have all the necessary information for there to be reflection on whether HM Treasury can propose a way forward which can accommodate our clients and obviate the need for proceedings. We also ask you to note the various practical and procedural considerations with which the draft grounds deal, and in due course let us know whether we are at least in a position to agree the practicalities for pursuit of this important case. 
 

Yours sincerely, 

 

OUTLINE DRAFT GROUNDS FOR JUDICIAL REVIEW 
 

Introduction

1. The issue is whether the United Kingdom taxation system is compatible with the claimants' statutory human rights arising under Schedule 1 Article 9 to the Human Rights Act 1998. 
 

2. As Arden LJ said about the Article 9 case of Williamson [2002] EWCA Civ 1926 [2003] QB 1300 at [211]: "This case is another illustration of what Lord Hope observed in R v Kansal (No.2) [2002] 2 AC 69, 101-102: ‘the development of our jurisprudence on the Human Rights Act 1998 has only just begun'." 
 

3. On 15 December 1983, the European Commission of Human Rights made a decision on this issue, in C v United Kingdom Application No.10358/83. The Commission dismissed the applicantâ ™s complaint as inadmissible, on the basis that there was no interference with any Article 9 right. The crucial question is whether the reasoning in that case can withstand scrutiny under modern ECHR jurisprudence. 
 

4. The claimants are a group known as the ‘Peace Tax Seven'. This is how they describe themselves:
 

We are a group of seven taxpaying citizens. We want to make a positive contribution to society by paying our tax in full. We object in conscience to paying others to kill on our behalf, but current tax policy forces us to do just that.
 

We have each tried to direct our income taxes to be used for peaceful and non-military purposes. In each case we were denied the right, and each of us has faced a dilemma: either to pay our taxes and so become complicit in killing; or to follow our conscience and break the law by withholding payment of a portion of our taxes.
 

Following our consciences has lead us to court or the threat of prosecution. We object in conscience to this financial conscription, and believe that its legal basis is questionable. We are seeking a judicial review of current UK tax policy on this issue. 
 

5. The claimants' stand, in refusing to pay taxes into a single consolidated fund used for military purposes, is driven by their deeply held conscientious beliefs. For a fuller description of their position, attention will be invited to witness statement evidence filed with the judicial review claim. 
 

6. The claimants do not want to withhold taxes. They want to pay their taxes, in full. They are ready and willing to do so. But they cannot in good conscience do so, when they are paying into a fund used for military purposes. That they cannot do. Thus, they need the State to respect the manifestation of their beliefs, by providing a taxation fund into which they can pay their taxes, and which can be used for all and any non-military purposes. 
 

7. The law has long since recognised pacifism and conscientious objection to military service. The Strasbourg Commission has considered pacifism in a line of cases including Arrowsmith v UK (12.10.78) Application No.7050/75. Conscientious objection has been the subject of a series of recent domestic  cases, in the context of refugee law (notably Sepet [2003] UKHL 15 [2003] 1 WLR 856 and Krotov [2004] EWCA Civ 69 [2004] 1 WLR 1825) and military discipline law (Khan [2004] EWHC 2230). 
 

8. The claimants are aware of no UK domestic law case on conscientious objection to the payment of tax. This is a test case of great significance. 
 

9. It is understood that the issue in the present case has been litigated in the Courts of the Netherlands, where it was argued all the way up to the Supreme Court (HR 26 April 2000 Nr 33.734). Although the claimants do not have a translation, it is understood that the Court ruled that Article 9 was not applicable, in circumstances where the duty to pay taxes was a general duty. 
 

10. It is not difficult to see why the proposed military use of pacifist taxpayers' money can constitute an affront to their conscience. It is well-recognised that compulsory conscription into the armed forces can constitute an affront to conscience. United Kingdom domestic statute law has so recognised, at the time of both world wars: see eg. section 2 of the Military Service Act 1916 and section 5 of the National Service (Armed Forces) Act 1939. 
 

11. As it was once put in Parliament (Hansard 19 October 1999; John McDonnell MP): "Modern wars are no longer fought with conscript armies in which a conscientious objector can refuse to serve; they are fought with high-tech weapons paid for with our taxes. Today we are not conscripted to fight; instead, our taxes are conscripted to pay for the high-tech weapons of modern warfare and the trained professionals who fire them."
 

12. As Lord Bingham observed in Sepet at [18]: "the dependence of modern warfare on sophisticated weaponry and technological skill has lessened the need for mass armies and so diminished the dependence of some states on conscription". 
 

13. Also in Sepet (at [50]) Lord Hoffmann considered, in the context of religion, whether withholding of taxes could sensibly be distinguished from other manifestations of Article 9 belief such as "chaining oneself to the railings outside Parliament" or refusing "to fight a holy war". He evidently did not think it could: "I find it hard to see the principle upon which these distinctions are made". He continued: "There is no reason why a religion should not require one to chain oneself to railings, not pay tax or fight a holy war". Lord Hoffmann was right to recognise that withholding of taxes could be as important an act of conscience, and manifestation of belief, as refusing to fight in a war. 
 

14. As Colleen Garrity explains in her article "The Religious Freedom Peace Tax Fund Act: Becoming Conscious of the Need to Accommodate Conscience" (2003) Ohio State Law Journal 1229-1230: Conscientious objectors to tax, unlike other tax protestors, generally accept the legal legitimacy of the income tax. However, they contest the moral legitimacy of allocating a portion of the income tax to military expenses and argue that requiring them to pay these taxes violates their freedoms. These concerns are particularly timely in the wake of the war in Iraq and the United States's continued military involvement in the Middle East and other countries throughout the world. In the modern world, technology and equipment, more so than manpower, are the primary resources used to fight wars. Attaining the most superior technological advancements requires funding, including funding through citizens' tax dollars. Just as conscientious objectors argued that they should not be required to participate in war, many of these individuals argue today that they should also be exempt from the funding of war. 
 

Nature of the claim
 

15. Were this an application to the Strasbourg Court, the respondent would simply be ‘the United Kingdom'. However, in vindicating the Convention rights in the domestic Court using the domesticating statute, it is necessary to identify the most appropriate defendant. The claimants have joined HM Treasury as defendant to this action, having initially raised the proposed claim with the Chancellor to the Exchequer. The claimants understand from the statutory scheme (see below) and from information at www.government-accounting.gov.uk that it is HM Treasury who controls the Consolidated Fund and determines arrangements for payments into it. 
 

16. The claimants have, however, also identified the Chancellor of the Exchequer and the Commissioners of the Inland Revenue as being persons directly affected by this claim and entitled to be heard if they wish. It is not anticipated that separate representation would be needed in meeting the claim. 
 

17. Finally, since there is the possibility of a declaration of incompatibility, the claimants would invite that the Court serve the Crown (HRA section 5). 
 

18. As to the decision of which judicial review is sought, CPR 54.1(2)(a) defines a claim for judicial review as "a claim to review the lawfulness of: i. an enactment; or ii. a decision, action or failure to act in relation to the exercise of a public function". This claim concerns (a) a failure to act and (b) an enactment. Judicial review is sought of:
 

(1) The failure or refusal by HM Treasury to establish a special fund or account, alongside the general fund and account referred to in the Exchequer and Audit Departments Act 1866 s.11 and the Public Accounts and Charges Act 1891 s.1(2), for (a) receipt of monies on account of the Exchequer and the Inland Revenue collected or received from those who have an objection of conscience to their tax monies being used for military purposes and (b) use for non-military purposes only.
 

(2) The following enactments: the Exchequer and Audit Departments Act 1866 especially s.11 and the Public Accounts and Charges Act 1891 especially s.1(2). 
 

19. The remedies sought by the claimants are as follows:
 

(1) A declaration that the failure or refusal referred to is contrary to law.
 

(2) A mandatory order requiring that HM Treasury take steps to establish the special fund or account referred to.
 

(3) Insofar as the enactments referred to cannot be interpreted, by reference to section 3 of the Human Rights Act 1998, to allow action to ensure compatibility with the claimantsâ ™ Article 9 rights, a declaration of incompatibility under section 4 of the Human Rights Act 1998.
 

(4) Such further or other remedy as may be necessary to give effect to the judgment of the Court. 
 

The central dilemma
 

20. It is a theme of the case-law on freedom of religion and conscience that the Courts will jealously scrutinise the justification of State measures which require a citizen to make an invidious choice. The point was well-encapsulated in the case of Re Chikweche [1995] 2 LRC 93 where the Supreme Court of Zimbabwe held that the State Courts had violated freedom of conscience, religion and belief in refusing to register a Rastafarian lawyer on grounds that his unkempt appearance did not satisfy the Courtsâ ™ 

requirement of proper dress. As Gubbay CJ explained (at 100): It is obvious to me that the refusal by the judge to entertain the application placed the applicant in a dilemma. Its effect was to force him to choose between adhering to the precepts of his religion and thereby foregoing the right to practise his profession and appear before the courts of this country, or sacrifice an important edict of his religion in order to achieve that end. A somewhat analogous situation came before the United States Supreme Court in Torcaso v Watkins (1961) 367 US 488, 6 L Ed 2d 982. 
 

A notary public in Maryland was denied a commission to serve because he would not declare his belief in God as required by a provision of the Constitution of the State of Maryland. The court held that the provision imposed an invalid test of public office which was violative of freedom of belief and religion. 
 

21. The Constitutional Court of South Africa made the same point in Christian Education South Africa v Minister of Education (2000) 9 BHRC 53, in describing the balancing of these competing imperatives (at [35]): The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws 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. 
 

22. This is a helpful formulation. The claimants in this case cannot claim in law an automatic right to be exempted by their beliefs from the law of the land. Their case is that the State is obliged to seek to avoid putting them to the extremely painful and intensely burdensome choice of being true to their conscientious beliefs or else respectful of the law. They say that in law the State must objectively justify any failure to avoid that unconscionable dilemma, and can only do so on the basis of showing that it is demonstrably not reasonably possible. 
 

The interference issue
 

23. The analysis under Article 9 involves two basic stages: (1) whether there is an interference with applicable Article 9 rights so as to require justification; (2) whether there is justification for the interference. 
 

24. In the Commission's decision in C v UK, and in the decision of the Netherlands Supreme Court, the claims failed at stage one. Article 9 rights were held not to have been interfered with. Is that conclusion a sound and sustainable one? 
 

25. There is good reason to doubt that. The following recent insight of Rix LJ is illustrative (Khan at [95]): In earlier years the Commission in particular has often appeared to take a rather formal approach to article 9(1): on the question, for instance, of interference itself, there appears to have been some unwillingness to allow for the possibility of the engagement of article 9(1) and thus to get into the question of justification under article 9(2). It may be that this is in part a reflection of the state parties' own reluctance to get into the question of justification. We would refer in this connection to Williamson at paras 113/116 and 196/198, where Kala is discussed. We would detect in Thlimmenos a new preparedness to allow for possibilities that state interference under article 9(1) may have to be justified. We would view the very recent case of Sahin v Turkey in just this light. There the Court was prepared at any rate to "assume", even if not to decide, that the banning at the University of Istanbul of the applicant's wearing of an Islamic headscarf was an interference with her right to manifest her religion (at para 71). Therefore the question of justification had to be entered upon. Consideration was then given to the requirements of "prescribed by law", legitimate aim, and "necessary in a democratic society", especially the latter. It was accepted that in such a context the margin of appreciation "is particularly appropriate" since rules on the subject vary from one country to another depending on national traditions (at para 102). Ultimately, the Court concluded that there had been no breach of article 9, since the assumed interference had been justified. We can well understand that in this context there need be no shyness about testing rights of conscience and the requirements of a democratic and pluralist society in the dispassionate context of a court and in the light of reasoned argument. 
 

26. The jurisprudence suggests that four questions may arise at stage one in the present case. Each can be found to feature in the reasoning of the Commission's admissibility decision in C v UK. 
 

Manifestation
 

27. The Strasbourg jurisprudence draws a distinction between (a) acts which are merely "motivated or influenced by a religion or belief" and (b) the relevant act required by Article 9(1) being to "manifest" the belief in a "practice" . This vexed distinction divided the Court of Appeal in the school corporal punishment case of Williamson [2002] EWCA Civ 1926 [2003] QB 1300. 
 

28. In C v UK part of the Commission's reasoning, in explaining why Article 9 did not apply to the act of "refusing to pay certain taxes because part of the revenue so raised may be applied for military expenditure", was that (p.147): ‘ in protecting the personal sphere, Article 9 of the Convention does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief ‘ the term "practice" as employed in Art 9(1) does not cover each act which is motivated, or influenced by a religion or a belief. 
 

29. The last sentence, in quotations, came from Arrowsmith v UK 3 EHRR 218 at [71]. It has been affirmed in more recent cases: see Pretty v UK (2002) 35 EHRR 1 at [82]; also Sahin v Turkey at [66]. 
 

30. Thus, it is established that not every act which is motivated or influenced by a belief will suffice to be a "manifestation". But, with respect to the Commission, it does not follow that "refusing to pay certain taxes because part of the revenue so raised may be applied for military expenditure" is a mere act motivated or influenced by a belief. Lord Hoffmann in Sepet thought it could be an act equivalent to chaining oneself to railings or refusing to fight in a war. 
 

31. Nor, with respect to the Commission, does Arrowsmith support such a conclusion. As Rix LJ has pointed out (Williamson at [163] and [165]), Arrowsmith is explained by its facts: there was no "manifestation" of belief because of the mismatch between the belief (pacifism) and the views being expressed in the leaflets distributed (which "did not express pacifist views"). Moreover (Williamson at [165]), the idea that conscientious withholding of tax cannot be seen as a manifestation is difficult to reconcile with a case like Darby v Sweden (1990) 13 EHRR 774.
 

32. In asking whether there is a "manifestation" it is helpful to ask whether the act in question is one which is "compelled" or "driven" by the belief which the individual holds: see Arden LJ in Williamson at [287]-[289]. That is what contrasts with being merely "motivated or influenced". For a conscientious objector (who believes that undertaking military activity is fundamentally wrong), refusing to fight in a war would thus be a "manifestation". That would be a case of "the mere act of absence or desertion" sufficing (Khan at [63]). So too, for a conscientious tax objector (who believes that underwriting military activity is fundamentally wrong), refusing to pay taxes into a general fund used for military activities would also be a "manifestation". 
 

Generality/neutrality
 

33. It has been said that Article 9 is inapplicable to conscientious tax objection where the taxation system in question is general and neutral in its application to the population. 
 

34. That reason is at the heart of C v UK at p.147: "The obligation to pay taxes is a general one which has no specific conscientious implications in itself. Its neutrality in this sense is also illustrated by the fact that no tax payer can influence or determine the purpose for which his or her contributions are applied, once they are collected". It appears also to have persuaded the Supreme Court of the Netherlands (see above). Rix LJ and Arden LJ have referred to it (Williamson at [165] and [271]), but without analysing or endorsing it. But it is not a well-founded reason. 
 

35. As in the context of Article 14 (see Thlimmenos at [48]), so too for Article 9 questions of "objective justification" (see the comment in Sepet at [30]) are not prevented from arising by the fact that the interfering measure is generally applicable. Measures which affect physical appearance or food- consumption could be generally applicable, yet they could plainly interfere with manifestations of religious rights or other fundamental beliefs. 
 

36. This part of the reasoning in C v UK is difficult to reconcile with Article 9 cases which preceded it (see eg. X v Austria [1965] 8 YB 174) and impossible to reconcile with what has followed. The measure in Pretty was both general and neutral, and yet that was not the reason why Article 9 could not assist Mrs Pretty. The measure in Buscarini v San Marino (1999) 6 BHRC 638 ECtHR was general, and the measure in Sahin v Turkey was general and neutral, and yet the Court did not treat Article 9 as inapplicable. This reason cannot stand as an answer to whether Article 9 applies. 
 

37. In the United States, religious freedom legislation (and in particular the Religious Freedom Restoration Act) spells out that the State cannot unjustifiedly interfere with the exercise of such rights: "even if the burden results from a rule of general applicability". In principle, it would be odd and unsatisfactory if the operation of Article 9 is no less diluted. 
 

Text of Article 1P
 

38. Another reason put forward, but equally unsound on analysis, is that the collection of taxes is expressly provided for in Article 1P, as a legitimate aim for property interference. But that observation does not mean that Article 1P is inapplicable to any question of taxation, still less can it have that effect for Article 9.  
 

39. Just because taxation features expressly within Article 1P (property) does not mean that a tax which penalised people in terms of conscience could not engage Article 9 (belief). To take just one example, criminal process features expressly within Article 5 (liberty), but that would not prevent it engaging Article 9. 
 

40. Again, the Commission in C v UK made reference to this point (at p.147): "Furthermore, the power of taxation is expressly recognised by the Convention system and is ascribed to the State by Article 1, First Protocol". But if that reasoning sufficed to prevent Article 9 from applying it is, as Rix LJ has pointed out (Williamson at [165]), impossible to understand why Article 9 was engaged in a case like Darby v Sweden, as it was. 
 

41. The true influence of Article 1P is to support the conclusion, which the claimants accept, that the operation of a viable state taxation system is a legitimate aim when considering justification and proportionality under qualified rights. But that is a stage two question, which recognises that the proper focus is in testing rights of conscience at that stage, and with dispassionate reasoned argument (Khan at [95]). The reasoning of the Commission in C v UK did not consider that all-important exercise. 
 

42. The claimants are aware that in the context of conscientious objection and military service, the older Strasbourg jurisprudence has emphasised the manner in which Article 4(3)(b) deals expressly with conscientious objection. But that is a much stronger argument than the Article 1P observation, given the express wording of Article 4(3)(b). Moreover, even that much harder problem is at best an open question in Strasbourg, depending on the view taken of Thlimmenos: see Khan at [67]. 
 

The manifestation by alternative means

43. In Williamson, the Court of Appeal held (2-1) that the use of corporal punishment in the education of children could be a manifestation of a religious belief. However, there was no Article 9 ‘interference', because the manifestation by alternative means was not prevented: the parents could carry out the punishment at home: see eg. [204] and [293].
 

44. In C v UK the Commission made a comment which might indicate use of this type of reasoning. They said (at p.147) that: "If the applicant considers the obligation to contribute through taxation to arms procurement an outrage to his conscience he may advertise his attitude and thereby try to obtain support for it through the democratic process". 
 

45. Once again, this cannot withstand scrutiny as a reason for finding non-interference with Article 9. After all, it would always be possible for a person whose manifesting conduct (eg. appearance, or diet: cf. Williamson at [164]) is curtailed to protest, or "advertise" their "attitude". The belief in corporal punishment could have been "advertise[d]" through the democratic process. But that is not the point. The question is whether the relevant manifestation (in Williamson, the belief-based use of corporal punishment; here, the belief-based withholding of tax) can be pursued in some other way. In Williamson, there was another way of administering corporal punishment; in Khan, there was a mechanism for dealing with conscientious objection, by formally applying for discharge (see [65]); here, there is no other way of preventing the monies from being used for military purposes. Indeed, that is the point. There should be. 
 

The justification issue

46. Accordingly, although it is understandable that the Government should heavily rely on the reasoning and conclusions in C v UK to support the conclusion that the Article 9 rights of the claimants and those in their position are interfered with, that conclusion and reasoning is unsound. The defendant has erred in law. The Government was obliged to conduct a considered balancing exercise, taking account of the interference with fundamental rights. It is necessary to conduct an "assessment of objective justification" (Sepet at [30]), with an overt grappling with the countervailing considerations (as indicated in Sepet at [34]). 
 

47. In approaching the question of justification, it must be remembered that: (1) Article 9 is a highly valued fundamental right; (2) this species of conscientious belief is a powerful and weighty one; (3) the test of justification is whether the interference is "necessary in a democratic society"; and (4) it is for the State to prove that such justification exists. 
 

48. The Court should expect evaluative evidence, and argument, addressed to the question of why, in the legitimate objective of a viable State tax collection system, it is necessary to maintain a single consolidated fund. In other words, it is necessary for the Government to show that it would not be reasonably possible to accommodate the claimants' position by means of a separate fund into which they can pay all their taxes, but from which only non-military uses can be funded. The Government has not demonstrated such a case.
 

49. In the United States jurisprudence the issue has tended to be side-stepped. There, the Courts have been prepared to define the "legitimate objective" in a self-fulfilling way which automatically 

provides the answer to the question of justification. To the extent that the defendant adopts a similar position, which is not clear, the Courts applying the HRA should not accept it. 
 

50. This point is illustrated by the decision of the United States Court of Appeals for the Third Circuit in Adams v Commissioner of Internal Revenue (4th March 1999) 170 F 3d 173. There, the legitimate aim was characterised as the "uniform, mandatory participation in the Federal income tax system". Upholding that approach as consistent with the caselaw of the US Supreme Court, it was observed (at p.179) that in this way "the nature of the compelling interest involved, converts the least restrictive means inquiry into a rhetorical question that has been answered". In other words, if the aim is a mandatory uniform system then by definition such a system is justified and proportionate, since no other system can achieve the aim. 
 

51. This approach may be ingenious in side-stepping the justification test, but it should not be accepted in applying the ECHR. It would be to resurrect the "generality/neutrality" principle. After all, any mandatory general measure could always be said to be imposed for an aim which involves

having a "uniform, mandatory" system. The answer in Sahin v Turkey would have been that Turkey's legitimate aim was to pursue a "uniform mandatory" system of headwear in schools, and by definition the justification test would have been met by such a system. 
 

52. In Christian Education South Africa, the interference was sought to be justified by reference to the state interest in "the principle of equality", so that the suggested legitimate aim inherently involved uniformity of treatment. The Constitutional Court of South Africa explained why this notion of "equality" could not remove the need for justification. Uniformity is not a virtue which answers the justification test. As the Court explained (at [42]): "the essence of equality lies not in treating everyone in the same way, but in treating everyone with equal concern and respect". Thus, there was no getting away from the requirement that the state must "wherever reasonably possible" avoid the dilemma of conscience between people "being true to their faith or else respectful of the law" (at [35]). 
 

53. The Government has not discharged the burden of demonstrating that a viable system of taxation would be unachievable by accommodating taxpayers with a conscientious objection to use of their tax monies for military purposes. That is perhaps not surprising, when the Government adamantly asserts that Article 9 rights are not engaged or interfered with. But it is unlawful nevertheless. 
 

54. It is noteworthy that in Darby v Sweden the State's operation of its taxation system did involve a special fund, and opportunity to avoid paying taxes which went to fund the State Church: see Williamson at [165] and [191]. 
 

55. The Government has suggested three main reasons why a viable taxation system could not operate, were the conscientious objections of the claimants to be accommodated. First, it is said that this would involve an unfair cross-subsidy on the part of others non-objectors who were left to pay into the consolidated fund and from whose taxes all military purposes would be funded. That reasoning would presumably mean that conscientious objection would be similarly unfair because non-objectors would be the more likely to be conscripted. As the South African case explains (see above), this is a misuse of "equality". But in any event, the Government cannot show how the supposed prejudice would arise. Everyone would pay the same taxes, in full. It is simply that for those who have no conscientious objection to taxes funding military activities, a greater proportion of their tax money would go to military purposes; and for those who have such an objection, none would do so. 
 

56. The second reason which has been suggested is that anti-vivisectionists, for example, might claim similar conscientious objection to the payment of taxes for funding animal experimentation. If there is such a "manifestation" of conscience, then it will already be evident in the withholding of taxes by such a person. It would be necessary to address their position and interest on its merits, to see whether it truly is on a parallel with that which arises in the present case. If it did, then it would indeed need to be accommodated, and the inability to do so would have to be demonstrated. As it stands, this is an unconvincing resort to floodgates. 
 

57. Thirdly, it is said that no workable distinction could be identified which would accommodate the claimants' concerns. That is impossible to accept. Thus, were the Parliamentary draftsman dealing with the matter, as the Government accepts could in principle be done through the legislative process, a workable definition of military activities would not be beyond reach. This is a red herring. 
 

Legislative compatibility

58. If there is an unjustified interference, the question arises as to whether it is one which is mandated by words in primary legislation which it is not "possible" to interpret compatibly with Article 9. Only if that is so, and strictly as a last resort, is a declaration of incompatibility necessary. 
 

59. Subject to the views of the defendant and the intervention of the Crown, the claimants suggest that the strong adjuration of section 3 is capable of solving the problem. It is helpful to start with the 1891 Act. It is true that section 1(2) provides for monies on account of Inland Revenue to be "placed to an account". But there is an express proviso, "except as to sums legally paid thereout". If the claimants are right, the effect of their statutory rights under the 1998 Act is that there would be a legal obligation to ensure that the taxes of conscientious objectors to military activities were indeed "sums paid thereout". That would prevent them reaching the single fund, and compatibly with the Act there could be a separate account. Indeed, it is to be noted that section 1(3) refers to "accounts" of the Commissioners, being "kept in such manner and under such regulations as the Treasury prescribe or approve". Thus, the defendant could make appropriate regulations. That would deal with the position as regards the Inland Revenue. 
 

60. The 1866 Act, and the position of the Exchequer, is more difficult given the wording of section 11. The question for the Court would be whether a "possible" reading of section 11 would allow an implied proviso to prevent monies becoming "monies paid into the Bank of England on account of the Exchequer", or whether it would be "possible" to imply provisos parallel to those in the 1891 Act. 
 

61. The claimants would wish to address in further detail the question of legislative compatibility, and whether a declaration of incompatibility would be necessary, when the position of the defendant and the Crown is known. 
 

Protective costs order

62. This is a case which raises a point of general public importance. It plainly warrants consideration, on full evidence and argument, at a substantive hearing. On granting permission for judicial review, absent prior agreement by the defendant, the claimants ask the Court to make a "cost-capping" order, for the following reasons:

(1) It is established that the Court can make such an order in an appropriate case: see the CND case. 
 

(2) To their credit, the claimants (as their evidence will explain) have sought to raise funds for this litigation, and have been candid with the Court. Without a costs-capping order, this important case will be shut out. The claimants are able to submit to an order that their costs exposure in this case should not exceed £[tbc]. 
 

(3) This is a direct ECHR challenge, brought in the domestic Court by virtue of the HRA. If the claimants took their case to Strasbourg, they would face no costs risk: see Leach, Taking a Case to Strasbourg (London, 2001), at p14. In principle, the HRA is designed to have the effect that issues can be ventilated in the domestic Court rather than in Strasbourg. It is in the public interest that the English Court should be able to rule on the important Article 9 questions in this case. In exhausting domestic remedies, it is important that the claimants should be able to ventilate their human rights argument. 
 

(4) In reality, in defending this claim, the Government could be in no worse position than in any legally-aided case, where in practical terms the Government is left to bear its own costs. 
 

(5) In fact, by virtue of the costs cap, a fair balance is struck. The State has vastly superior resources to those of the claimants. 
 

Conclusion

63. The Court is invited to allow this claim and grant the orders sought.

 

MICHAEL FORDHAM

DAVID PIEVSKY 
 

Blackstone Chambers 
 

PHIL SHINER

NUSRAT CHAGTAI 
 

Public Interest Lawyers 

Final Letter to the Treasury Before Action - 23/12/04

From the Legal Adviser's Office 27th January 2005

Dear Sirs

War Taxes and Freedom of
Religion, Belief and Conscience

Thank you for your letter of 21 December 2004 and enclosed draft grounds which have been given careful consideration.

We respect the views of your clients and their integrity in looking for solutions to their concerns. However, for the reasons indicated in the preceding correspondence your demands cannot be met . It is considered that the established authorities do provide helpful and authoritative guidance which should be taken into account and, in any event, the present system is a fair and lawful one. We are clear that the appropriate forum for pursuing these issues is the democratic political process as opposed to seeking a one-off derogation from the long-standing basis upon which taxes are administered.

Yours faithfully,

Sarah Howard-Jones
Treasury Legal Advisers

 
The Treasury's Final Reply - 27/01/05

This is the full transcript of Justice Collins' judgement. One can sort of see his argument for taking the case back to Strasbourg, but read our barrister's skeleton argument.

Neutral Citation Number: [2005] EWRC 1914 (Admin) CO/1698/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

BEFORE: MR .JUSTICE COLLINS
THE QUEEN ON THE APPLICATION OF BOUGHTON (CLAIMANT)
-v-
HER MAJESTY'S TREASURY (DEFENDANT)

MR M FORDHAM (instructed by Public Interest Lawyers) appeared on behalf of the CLAIMANT
MR .J CROW (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT

JUDGMENT
(As Approved by the Court)

Crown copyright@

1. MR JUSTICE COLLINS: This application for judicial review is brought by a body of claimants who are a group known as the "Peace Tax Seven". They describe themselves in this way:
"We are a group of seven tax-paying citizens. We want to make a positive contribution to society by paying our tax in full. We object in conscience to paying others to kill on our behalf. The current tax policy forces us to do just that. We have each tried to direct our income taxes to the use of peaceful, non-military purposes. In each case we were denied the right and each of us have faced a dilemma: either to pay our taxes and so become complicit in killing, or to follow our conscience and break the law by withholding payment of a portion of our taxes. Following our consciences has led us to court or the threat of prosecution. We object in conscience to this financial conscription, and believe that its legal basis is questionable. We are seeking a judicial review of current UK tax policy on this issue."

2. What is suggested is that the Treasury should set up a fund into which those who have a conscientious objection, such as the claimants have, could require that the proportion of their taxes which otherwise would go to military purposes be put into a special account so that it would only be used for non-military purposes. It is said that there is power under the taxing statutes for the Treasury to set up such a division, as it were, of the amount that is paid by way of taxation. That is, of course, not the way that the system operates at the moment. All tax which is paid is paid into the Consolidated Fund, and out of that fund come all monies which are used by the Government for whatever purpose. Of course, a proportion (Mr Fordham informs me at the moment about 10 per cent) of general taxation is provided for defence purposes.

3. I should say that Mr Fordham recognises that there may be a need to draw a line, because some of those concerned in this case are what I could describe as absolute pacifists. That is to say, they would object to any part of what they pay being used for any hostile purpose, any military purpose at all; including, for example, the use of British troops to assist in United Nations peace-keeping activities. Some would accept that there are circumstances in which force could properly be used; very limited circumstances. Nonetheless, they recognise that there is a line which can be drawn.

4. It is plain that there will be problems, if Mr Fordham's case succeeds, in deciding how a line should be drawn. One has also to bear in mind that there may be objections to other sorts of payments out of general taxation on equally sincere conscientious grounds. Nonetheless, that is not a matter which would prevent this claim going ahead if, in principle, there were the need to establish some sort of an arrangement which would properly cater for the conscientious requirements of those such as the claimants.

5. I should say straight away that the genuineness and sincerity of their beliefs is not in issue. The contrary has never been suggested by the defendants, nor is it a matter which is in issue before me. The claimants have each put in statements which set out the reasons why they have come to the conclusions that they have in relation to the use of the tax that they pay for military purposes. I do not think that it is necessary to go into them in any further detail. They accept that they are required to pay tax and they have no desire in any way to avoid the payment of all that is due from them by way of taxation. But, it is contrary to their beliefs and their consciences to pay any money which they know would go towards military purposes. Therefore, there must be some means whereby that sort of objection can be met. They say that there is such a way available by a scheme such as I have mentioned.

6. The claim is based upon Article 9 of the European Convention on Human Rights. Article 9 has essentially two effective parts to it. It establishes not only the freedom of religion, thought and conscience but also the freedom of their manifestation. It is in these terms:
"(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice or observance. (2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

7 .The right to freedom of thought, conscience and religion is not in issue. There is no interference with that right in the requirement to pay tax, or indeed in the payments that are made out of those taxes. The question that arises is whether it contravenes and interferes with the right and freedom to manifest the belief in practice (I am isolating the relevant words of Article 9(1 . In the case of many of the claimants, their pacifist beliefs are part of religious beliefs. But that link is not necessary to attract the protection of Article 9. Arrowsmith v United Kingdom [1978] EHRR 218 decided that pacifism as a philosophy is a belief within the scope of Article 9(1) and is therefore protected by the right to freedom of thought and conscience. Indeed, that was given the stamp of approval by the House of Lords in the recent case of R v Secretary of State for Education and Employment and Others ex parte Williamson, decided on 24th February of this year under the title [2005] UKHL 15.

8. Mr Crow on behalf of the defendants accepts that there is an argument which, in the absence of any authority from Strasbourg, could be applied to suggest that in circumstances such as this, the objection to payment of the amount of tax for military purposes could be regarded as a manifestation of the belief and therefore would be capable of being protected by Article 9(1). I should say that the argument before me has not touched on Article 9(2). It is the case for the defendants that the claim does not get through the gate, as it were, of Article 9(1). But if I were to grant permission, the argument that Article 9(2) would apply to defeat the claim would be deployed. Nothing I say at this stage is intended to deal with the application of 9(2) or consider whether 9(2) would, in due course, be likely to defeat this claim.

9. What Mr Crow relied on is Strasbourg jurisprudence which he submits is constant and is clear, and indicates that a claim such as this cannot conceivably succeed. The Strasbourg jurisprudence consists of some three cases heard by the Commission in the early 1980s. They involved a claim by citizens, I think of the United Kingdom in each case, that their Article 9 rights were breached by having to pay tax which was spent on armaments. The leading case to which I have been referred is C v United Kingdom, a decision of 15th December 1983, numbered 10358/83. The facts, so far as material, are set out in the judgment in these terms:
"The applicant, who is a Quaker, contends that to compel him to contribute to expenditure for armaments rather than for peaceful purports is an outrage to his conscience and contrary to the requirements of the manifestation of the belief that he has. He contends that the manifestation and practice of his Quaker beliefs requires him to oppose recourse to war in the settlement of disputes and not to support, directly or indirectly, weapon procurement, weapon development and other defence-related expenditure. It is therefore his contention that it was a necessary part of the manifestation of his Quaker belief and practice and observed that 40 per cent of his income tax can be diverted for different peaceful purposes. This step is not merely consistent with the Quaker beliefs but necessary to their manifestation."
One can well see the analogy with the circumstances of this case. Indeed, it seems to me that there is no material distinction between the matters that were in issue in C and the matters that are in issue in this particular claim.

10. It is therefore necessary to see what the Commission had to say about this particular issue, and therefore I should cite it in full. They say: 
"Article 9 primarily protects the sphere of personal beliefs and religious creeds, ie, the area which is sometimes called the forum of the internal. In addition, it protects acts which are intimately linked with these attitudes, such as acts of worship or devotion which are aspects of the practice of religion or belief in a generally recognised form. However, in effecting this personal sphere, Article 9 of the Convention does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief; for instance, by refusing to pay certain taxes because part of the revenue so raised may be applied to military expenditure. The Commission has so held in ...Arrowsmith v United Kingdom where it stated that: 'The term 'practice' as employed in Article 9(1) does not cover each act which is motivated or influenced by a religion or belief.' The obligation to pay taxes is a general one which has no specific conscientious implications in itself. It is also illustrated by the fact that no taxpayer can influence or determine the purpose of which his or her contribution was done once they are collected. Furthermore, the power of taxation is expressly recognised by the Convention system and is ascribed by Article 1 of the First Protocol. It follows that Article 9 does not confer on the applicant the right to refuse, on the basis of his convictions, to abide by legislation the operation of which is provided by the Convention, and which applies neutrally and generally in the public sphere without infringing on the freedoms guaranteed by Article 9. If the applicant considers the obligation to contribute through taxation to arms procurement an outrage to his conscience, he may advertise his attitude and thereby try to obtain support for it through the democratic process."

11. Mr Fordham submits that that reasoning is open to criticism and, indeed, does not stand with subsequent decisions, in particular Williamson to which I have already referred. Williamson was a case involving corporal punishment in schools. The claimants in Williamson were headteachers, teachers and parents of children. They were concerned that the bar imposed by section 548 of the Education Act upon corporal punishment in school infringed their Convention right to freedom to manifest their religion in practice, because they regarded corporal punishment of children as being a necessary means of controlling them. In paragraph 9 of Lord Nicholls' speech, which was the leading speech, he said this:
"The claimants' proposed to speak on behalf of a 'large body of the Christian community' in this country whose 'fundamental beliefs' include a belief that 'part of the duty of education in the Christian context is that the teachers should be able to stand in the place of parents and administer physical punishment to children who are guilty of indiscipline'. They reject the general standard of state education available in this country as not fitting their religious and moral beliefs. They believe that, correctly used, 'discipline of this type is an effective deterrent against behaviour that is unacceptable in the community'."


It was not disputed that those were genuinely held beliefs and that, accordingly, there was an infringement of those beliefs in the way in which corporal punishment was rejected.

12. It is important to see what Lord Nicholls had to say under the heading "Manifesting the
claimants' beliefs in practice" because the case dealt with what amounted to manifestation. We find that in paragraphs 30 to 32 in which Lord Nicholls said this: 
"(3D) In the present case a further prerequisite must be satisfied before Article 9 is engaged. Article 9 is not engaged unless the complainants' activity under consideration is within the scope of the protection the Article affords to the complainants' beliefs. As to this, the Strasbourg jurisprudence has consistently held that Article 9 does not protect every act motivated or inspired by a religion or belief. Article 9 does not 'in all cases' guarantee the right to behave in public in a way 'dictated by belief: see, most recently, the decision of the European Court of Human Rights regarding the wearing of an Islam headscarf in Sabin v Turkey Application No 44774/98 (29 June 2004) paragraph 66. [I am right in saying, I believe, that the European Court of Human Rights upheld a bar on the wearing of the headscarf].

(31) Clearly this is right. Miss Arrowsmith distributed leaflets to soldiers, urging them to decline service in Northern Ireland. This was dictated by her pacifist views. But the contents of the leaflets did not express pacifist views, nor did the act of distributing the leaflets do so. She was not thereby manifesting her pacifism: Arrowsmith v United Kingdom 3 EHRR 218. (32) Thus, in deciding whether the claimants' conduct constitutes manifesting a belief in practice for the purposes of Article 9 one must first identify the nature and scope of the belief. If, as here, the belief takes the form of a perceived obligation to act in a specific way, then, in principle, doing that act pursuant to that belief is itself a manifestation of that belief in practice. In such cases the act is 'intimately linked' to the belief in the Strasbourg phraseology: see Application 10295/82 v United Kingdom [1983] 6 EHRR 558. This is so whether the perceived obligation is of a religious, ethical or social character. If this were not so, and if acting pursuant to such a perceived obligation did not suffice to constitute manifestation of that belief in practice, it would be difficult to see what in principle suffices to constitute manifestation of such a belief in practice. I do not read the examples of acts of worship and devotion given by the European Commission in Application 10295/82 v United Kingdom as exhaustive of the scope of manifestation of a "belief in practice." Lord Nicholls went on to indicate that he was concerned only to identify what in principle was to constitute manifestation in a case where the belief was one of perceived obligation. At 35 he said this: 
"In the present case the essence of the parents' beliefs is that, as part of their proper upbringing, when necessary children should be disciplined in a particular way at home and at school. It follows that when parents administer corporal punishment to their children in accordance with these beliefs they are manifesting these beliefs. Similarly, they are manifesting their beliefs when they authorise a child's school to administer corporal punishment. Or, put more broadly, the claimant parents manifest their beliefs on corporal punishment when they place their children in a school where corporal punishment is practised. Article 9 is therefore engaged in the present case in respect of the claimant parents."

13. The analogy here, Mr Fordham submits, is that the essence of the claimant's belief is that no money provided by them should be spent on a military purposes. They should not contribute in any way to military purposes. That would be contrary to their pacifist beliefs. Otherwise, they would be in the position of contributing to something which they believe to be entirely wrong. Accordingly, it is said that they manifest those beliefs when they refuse to pay the amount of tax which is equivalent, or when they say that there should be an arrangement whereby what they pay can be isolated out of the general taxation pool and therefore can ensure that it is not available for military purposes. Mr Fordham also submits that it is entirely consistent with the approach indicated by Lord Nicholls in Williamson to say that there is here a manifestation and that the Strasbourg answer is one which needs to be reconsidered.

14. I am bound to say that one sees the force of that submission. Whether, in the end, it would succeed is another matter. It might well, in due course, fall foul of arguments to the contrary, or indeed of Article 9(2). But that at this stage is not the point. Indeed, as I have indicated, I think Mr Crow recognises that if there were not the Strasbourg jurisprudence upon which he relies, he would find it difficult to dispute that there was, in relation to Article 9(1) at least an arguable point to be made.

15. But, he has drawn my attention to the Strasbourg jurisprudence, to which I have already
referred and, in addition, perhaps most importantly, to observations of Lord Bingham in the House of Lords in Ullah v Special Adjudicator [2004] 3 WLR 23. That case involved different Articles to the ones with which we are concerned in this case, but it also included an Article 9 point, the issue being in that case whether Article 9 would ever be applied in an expulsion case. In paragraph 20 of his judgment on page 39 Lord Bingham said this:
"In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, paragraph 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
That, submits Mr Crow, is a most important approach and one which the courts should adopt. Domestic law --and there is no doubt about this --is entirely against the contentions being raised by the claimants. Absent Article 9, there could be no conceivable claim. The suggestion has been made from time to time when claims have been made that taxes should not be applied to military purposes and that those who have a conscientious objection should not be required to pay monies which go towards those purposes. Those claims have always failed. Indeed, it is clear that, as I say, domestic legislation is totally against the claimants.

16. Thus, there is no provision for rights more generous than those guaranteed by the Convention. Accordingly, what I am being asked to do --and what the court will be asked to do if I were to grant permission --would be to construe the Convention in such a way as to provide for a remedy which the Commission has hitherto said is not available.

17. Mr Fordham relies on the fact that the decisions in question are Commission decisions and not decisions of the court. That, of course, is correct as a matter of fact but, as Mr Crow points out, that really is not something which can to a great extent avail the claimants, since the Commission has decided on a number of occasions that these claims were manifestly ill-founded and thus could not get beyond the hurdle of admissibility so as to reach the court. Again, as Mr Crow pointed out, there is no reason to believe that the judges who sat in the Commission should be regarded as carrying any less weight than those who sat in the European Court. Many of the judges sitting on the Commission were subsequently promoted and it may even be that some who sat in the Commission also sat in the court.

18. Mr Fordham also points out that Lord Bingham, in paragraph 20, which I have cited, refers to following clear and constant jurisprudence of the Strasbourg court. Of course, at the time Lord Bingham was speaking there was no Commission. It had gone and it was all the Strasbourg court. But the Human Rights Act 1998 does not distinguish between the court and the Commission in section 2, and the reference to following Strasbourg case law must, in my view, include the Commission as well as the court. One should not necessarily apply any less weight to decisions of the Commission than to the decisions of the court. Of course, that may depend upon the nature of the individual case. Certainly, the decision in Arrowsmith was closely reasoned and given in some detail.

19. Mr Fordham submits, too, that the court in C effectively misapplied what it had said in Arrowsmith and the reference in Arrowsmith to an act motivated or influenced by a religion or a belief was not the same as an act dictated by that religion or belief. It is interesting to note that Lord Nicholls in Williamson uses the word "dictated" and I am bound to say that I see no difference between what is to be conveyed by the words. Quite clearly, the refusal was motivated by the religious belief. Indeed, it was so strongly motivated as to amount to a dictation. As I say, there is no difference in principle.

20. The reasoning is that the obligation to pay taxes is a general one, that it is neutral, that there is no power by the law of any state that the taxpayer can influence or determine the purpose for which his or her contributions are applied and the Convention recognised the power to tax as one which was upheld by the First Protocol. In those circumstances, the decision was that there was no right to refuse to abide by the general legislation. Therefore, there was, in the circumstances, no interference with the manifestation of the belief. It could be argued that a different conclusion could have been reached. No doubt that is so. But, equally, one has to bear in mind that there are matters which would have to be borne in mind by judges who are deciding upon the terms of an International Convention which will affect a number of different states.

21. It is also worth noting that there is a decision, relatively recently in 2001, where this point was taken and the Dutch court expressly followed the Strasbourg reasoning in rejecting it. There was also a decision in Canada with much the same effect.

22. It seems to me, in those circumstances, that, interesting no doubt though the argument is, and important --I do not wish to in any way indicate that this is not an important matter --it seems to me that it is not for this domestic court to seek to upset the clear jurisprudence of Strasbourg. I am persuaded that if this matter is to be reconsidered, it must be reconsidered by Strasbourg. That would involve, if the claimant wished to take the matter there, the exhaustion of domestic remedies. That can be done more speedily if permission is at this stage refused, and incidentally, much more economically.

23. I am quite sure that, even if I were to grant permission, in the end this claim would fail. Therefore, it seems to me that, quite apart from anything else, there is little point in granting permission in order for an argument to be employed which in the end is, in my judgment, bound to fail. In those circumstances, I am quite satisfied that this claim has no arguable possibility of success and therefore I must refuse permission.

24. MR FORDHAM: My Lord, there is no application for costs. Will you please say no order for costs?

25. MR JUSTICE COLLINS: If it is convenient to do so.

26. MR FORDHAM: It would be, my Lord. You know what the position is in relation to the protective costs order. We need to know that today is not going to count.

27. MR JUSTICE COLLINS: Fine. I need say nothing. Having refused leave, equally I am more than happy to include it in the order.

28. MR FORDHAM: Please say no order.

29. MR JUSTICE COLLINS: Yes.

30. MR FORDHAM: I am grateful. That then leaves the question of exhausting domestic remedies or even seeking to persuade the courts we have a domestic remedy. We have the opportunity to go to the Court of Appeal for our interesting and important argument. The reason I am on my feet is that there is a double permission requirement in judicial review.

31. MR JUSTICE COLLINS: There is no permission required for a renewal of permission.

32. MR FORDHAM: You need leave to appeal against the refusal of permission for judicial review. The reason that double permission

33. MR JUSTICE COLLINS: Are you sure that is right? I thought this was the rare exception --indeed I think the only exception --for the requirement of leave where you have an absolute right to apply to the Court of Appeal within seven days.

-There follows a long discussion as to whether Mike Fordham needs permission from judge Collins to appeal. We won't bore you with it!

High Courts refusal for a full hearing - 25/07/05

This is the basic argument being put forward to the Court of Appeal. Justice Collins reasoning behind why he refused us permission for a full hearing are examined and countered. Fordham and Pievsky are also introducing recent examples as to why the Strasbourg decision of twenty years ago no longer applies.

Case No: CO/1698/2005
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Between: R (on the application of BOUGHTON and others) Claimants/proposed Appellants

and

H M TREASURY Defendant/proposed Respondent

SKELETON ARGUMENT

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 [35] [tab 11/12 p278], recently endorsed by Lord Walker in R v Secretary of State for Education and Employment ex parte Williamson [2005] 2 WLR 1590 (HL), at [67] [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 [2005] 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 [2004] EWHC 2230 at [95], [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 [2004] 2 AC 323 at [20] [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 [2005] EWCA Civ 932 per Rix LJ at [61 - 62] [tab 11/17 p418] and Mummery LJ at [35] [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 [65] – [66] [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. 

MIKE FORDHAM
DAVID PIEVSKY
Blackstone Chambers 

PHIL SHINER
NUSRAT CHAGTAI
Public Interest Lawyers 

21 September 2005 

Skeleton argument for appeal - 21/09/05

This is the argument being put forward by the Treasury to the Court of Appeal. They repeat the same arguments they made earlier with nothing new added. Our reply challenges every point and is also posted on this website.

ON APPEAL IN THE HICH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
2005/2103
BETWEEN:
THE QUEEN -on the application of.
(1) MARGARET BRENDA BOUGHTON
& OTHERS
-and.
HM TREASURY
SKELETON ARGUMENT AND SUMMARY EVIDENTIAL PROPOSITIONS
ON BEHALF OF HM TREASURY
TREASURY SOLICTIOR
One Kemble Street
London WC2B 4TS Ref: Naomi Muller

THE PURPOSE OF THIS SKELETON & SUMMARY
1. This is a hybrid document. It has been produced pursuant to certain directions given by Sedley LJ
on the 20 October and the 21 November 2005, copies of which are attached for convenience.


HM TREASURY'S PRINCIPAL CASE

2. The Claimants have applied for permission to issue proocedings for judicial review [p.291. Their application has been refused, both on paper and at an oral hearing before Collins J [p.17]. They are now seeking to renew that application be fort the Court of Appeal (p.1].

 

3. The Claimants are pacifists who object no paying raves into a single fund which is used, in part, for defence purposes. They say that they are willing to pay their taxes in full, but they ask HM Treasury to establish a segregated fund into which their contributions will be paid, with an assurance that it will not be applied for defence purposes. HM Treasury have refused. The Claimants say shat this refusal constitutes an unjustified interference with their right to manifest their religious or philosophical beliefs, contrary to Article 9 of the Europe Convention on Human Rights ("the Convention"),

4. The ground upon which HM Treasury successfully resisted this argument in the court below is that there is a clear and consistent line of authority from Strasbourg which deals with exactly this point, and which establishes beyond question that the Claimants' rights under Article 9(1) of the Convention are not engaged. Far from there being a single Strasbourg case "over twenty years ago" (as the Claimants suggest in 54 of their Skeleton [p.12]), there are in fact 4 decisions to exactly re same effect spanning a period of 10 years, the most recent being in 1992: sec /6 of the Summary Grounds of Defence (p.52).'

5. Furthermore, there are two other decisions of the Commission dealing with very closely related situations, which are also entirely consistent with the same proposition: sec 87 of the Summary. 

Grounds of Defence (pp.82-53)? For these reasons, it is beyond argument that the Claimants' rights under Article 9(1) are not engaged, and there can be no suggestion that the imposition of general taxation interferes with their religious or philosophical beliefs.

6. Moreover, the same argument, based on Article 9(1) of the Convention, has been rejected even more recently by the Supreme Court of the Netherlands in 2000 [p.104]. And the HM Human Rights Committee has also reached exactly the same conclusion in relation to the comparable provision in Article 18 of the ICCPR (p.112): sec /9 of the Summary Grounds of Defence (p.53).

7. Finally, it should be noted that the Grand Chamber of that European Court of Human Rights has very recently given judgment in the case of Sahir v. Turkey on the 10" November 2005 (a copy of which is attached for convenience). At /105 of its judgment, the Grand Chamber specifically cited with approval the decision in C v. UK (i.e. the twenty-year-old authority to which the Claimants refer disparagingly). The Grand Chamber cite C v. UK as authority for the proposition that, although Article 9(1) protects the right to 'manifest' one's religion or belief in worship, teaching, practice and observance, it "does ant protect every act motivated or inspired by a religion or belief". In the circumstances, the Claimants' suggestion thar Cv. UK represents some outdated line of jurisprudence that has since been overtaken by subsequent authority is simply untenable. There is a clear and constant line of Strasbourg case-law right up to today which establishes beyond question that the payment of axe does not engage a person's rights under Article 9(1).

 

8. As Lord Bingham explained in /20 of his speech in R. (Ullah) v. Special Adjudicator (2004] UKHI. 26, [2004] 2 AC 323 [p.85], the effect of s.2(1) of the Human Rights Act 1998 is to require the English courts to follow any "clear and constant" jurisprudence of the Strasbourg court, unless there are "special circumstances". He also specifically recognised that, although it is of course open to member states to provide for rights more generous than those guaranteed by the Convention: "such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of the national court is to keep pace wich the Strasbourg jurisprudence as It evolves over time: no more, but certainly no less" (emphasis added).

9. In other words, Parliament might by legislation introduce greater protection for religious and philosophical beliefs than that currently provided by Article 9: but the domestic court should not extend the scope of Article 9 beyond that currently fixed by the Strasbourg case-law, Lord Bingham's words "no more" are critical, for the reason he gave. The warning is salutary. As an international instrument, the Convention must have a single meaning, and its meaning in exactly this contort has already been clarified and confirmed beyond doubt by Strasbourg (and that meaning has, quite properly, been followed by the Supreme Court in the Netherlands). With all respect, it is not for the national courts in this country to assert that the Convention bas a wider impact than Strasbourg has determined. In the circumstances, if these Claimants wish to ft their complaint within Article 9(1), their only remedy, having now failed in the national court, is to bring a complaint in Strasbourg, and try to persuade the court there to change ins mind. As such, Collins I was entirely right to reject the claim hero.

10. It is on this basis alone that HM Treasury invite the Court of Appeal to reject the renewed application.

EVIDENTIAL SUMMARY
Introduction

11. Since the Strasbourg, jurisprudence establishes beyoud doubt that the Claimants' rights under
Article 9(1) are not engaged, there was no need for HM Treasury to adduce any evidence in the court below, or to advance any fall-back argument to the effect that, if those rights had been
engaged, either:
11.1. there was nevertheless no interference with them, or
11.2. any interference could be justified within Article 9(2).

12. However, Sedley LJ has directed that the application for permission in this Court should be heard "from end to end", i.e including any arguments on justification. In response, HM Treasury issued an Application Notice seeking permission to file evidence. But Sedley LJ clarified his intentions in a further direction issued on the 21" November 200S, indicating that "there is no need for evidence to be filed. All that is needed is a tabulation from each side of the propositions of fact which it considers it can if necessary establish by evidence."

 

13. The summary set out below represents HM Treasury's compliance with that direction. No Interference with Article 901) 

No interference with Article 9(1)

14. The first proposition is that, even if the Claimants' rights under Article 9(1) are engaged, there is no logical basis in fact for suggesting that there is any interference with those rights. A closely related proposition is thar, for essemally the same reason, the Claimants' proposed solution would not remove any perceived interference with their rights. These propositions are based on the following factual considerations:

14.1. First, money is a fungible.

14.2. Secondly, all taxes are (with certain immaterial exceptions*) paid into the Consolidated Fund.

14.3 Thirdly, the Consolidated Fuad is cleared to zero on a daily basis by payment into, or receipt from, the National Loans Fund.

14.4. Fourthly, all Govermment expenditure is (with certain immaterial exceptions) releascd from the Consolidated Fund.

14.5. Fifthly, as part of its executive functions, the Government must determine, as a matter of policy, the amount it considers appropriate to spend on defence.

14.6. Sixthly, that amount will (subject to the necessary Parliamentary approval by means of an Appropriation Act) be released from the Consolidated Fund.

14.7. Finally, the defence budget is not just spent on military operations. The Armed Forces also provide public services in the form of protection against terrorism, civil crisis management (for example providing personnel during the firefighter strikes and the foot and mouth crisis), search and rescue operations (for example evacuating residents of Boscastle during the flooding), fisheries protection (which itself embraces an element of environmental protection), counter-drugs work, humanitarian engagement (for example providing assistance in the recent earthquake in Pakistan), peace-keeping and support for law enforcement agencies, both within the UK (for example in Northern Ireland) and abroad (for example in Sierra Leone).

15. As a result, the current tax arrangements do not involve any interference with the Claimants" religious or philosophical beliefs:
15.1. It is impossible to suggest, in any rational sense, that the Claimants" taxes are being used for defence purposes. Any sums they pay by way of taxation are received into the Consolidated Fund, and they instantly lose any separate identity at that moment. Thereafter, any amounts transferred into the National Loans Fund or released from the Consolidated Fund cannot rationally be identified' with the Claimants' contributions. The notion that any part of "their money' is being paid towards defence purposes is entirely abstract.
15.2. The difficulties with the Claimants' argument art compounded because of the diverse functions of the Armed Forces, which are outlined briefly above. The amount spent annually on the overall defence budget can of course be identified, bur it is Impossible to suggest that all of it represents expenditure which (to use the First Claimant's phrase in /2 of her witness statement p.1171) "facilitates the killing of another human beings". As a result, even if it were possible (which it is not) to 'trace' any part of the Claimants' tax contributions in defraying part of the defence budget, it would be impossible to identify which part of that expenditure was in fact inconsistent with their beliefs.

16. A closely related proposition is that the Claimants' proposed solution would not remove any perceived interference with their rights. If their war contributions were paid into a segregated fund, it would not reduce the aggregate amount that the Government spent on defence. It would simply mean that the court needed from the (unsegregated) Consolidated Fund in relation to non-defence purposes would be very slightly reduced. As a result, the proportion of expenditure on defence purposes from the Consolidated Fund would very slightly increase. By that means, any payment of taxes by the Claimants into the segregated fund would in reality facilitate expenditure on defence purposes, just as much (or as little) as if their taxes had been paid directly into a single, unsegregated fund.

 

17. For these reasons, any payment of tax by the, Claimants will in reality serve as a contribution to the overall pot from which Government expenditure is drawn. Whether, for cosmetic reasons, that pot is seen to be divided in two will not affect the ultimate result, namely that the payment of taxes by the Claimants will contribute towards the Government's ability to spend money on defence. HM Treasury would accordingly submit (if necessary) that there is no rational basis on which the Claimants can allege that the present arrangements interfere with their religious or philosophical beliefs, or (H) that tneir suggested solution would remove any perceived interference.

Any Interference is justified
Introduction

18. If (contrary to all of the foregoing arguments) (1) the Claimants' Article 9(1) rights are engaged, and ii) there is some interference with those rights, HM Treasury would, in the alternative, submit that any such interference is justified,

 

19. It is trite law that justification under Article 9(2) involves three elements (see for example Kokkinaki: v. Greece (1993) 17 EHIRR 397, at /36), two of which cannot seriously be in double in this case:
19.1. First, the interference must be prescribed by law. It is: the present arrangements are required by statute, principally now s.44 of the Commissioners for Revenue and Customs Act 2005.
19.2. Secondly, the interference must pursue a legitimate objective. There can be no realistic
argument on this point either. the present arguments are calculated to pursue the twin objectives of (i) protecting the rights of others by ensuring the provision of public services economically, and (i) in particular the provision of defence services for the benefit of the community as a whole.
19.3. Thirdly, the interference must be necessary in a democratic society. In other words, it must strike a fair balance between the interests of those whose Convention rights are being curtailed, and the rights and freedoms of the rest of the community. This is essentially the test of proportionality.

20. So far as proportionality is concerned, there are five related, but separate points, each of which is explained more fully below:
20.1. first, the benefits of defence cannot be excluded:
20.2. secondly, the practical implications of accusing to the Claimants' request are Literally incalculable.
20.3. thirdly, the degree of interference is extremely limited, whereas the public interest being pursued is extremely important;

20.4. fourthly, the Claimants' proposal is profoundly undemocratic; and

20.5. fifthly, the Claimant's proposal ignores the specific wording of Article 1 of the First Protocol ("Al.PI").

i) Non-excludable benefit

21. The first point is the simplest. Like lean air and street-lighting, no-one can avoid, and no-one can be denied, the benefits of defence. Whether the Claimants like it or nor, they live in a community which enjoys all the advantages that are derived from having professional Armed Forces to protect the public and to provide all those other services briefly summarised above.

22. For these reasons, the Government is entitled to require every citizen to contribute towards the cost of maintaining those uniform benefits.

ii) The implications of acceding to the request

23. The implications of acceding to the Claimants' request must also be considered. This consideration must be conducted at two levels: first, in relation to the handling of tax receipts, and secondly in relation to the handling of expenditure from central funds.

 

24. So far as the handling of tax receipts is concerned, the implications of the Claimants' request are almost unlimited. Their legal argument is constructed as if 'pacifism' were a single, homogenous belief which mandates uniform behaviour on the part of all its supporters. However, it is apparent from the Claimants' own evidence that it is no such thing. For example, although their collective position is said to be that they are willing to pay 100% of their tax liabilities (sec /2 of their Skeleton (p.11)), it is apparent from the First Claimant's evidence, that she believes her conscientious objection can only be satisfied by withholding from her tax payments a proportionate part reflecting the proportion of the Government's annual expenditure on defence: sec /3-6 on her witness statement [pp.117-118]). Even within the Claimants' own ranks, therefore, there is room for differences of opinion as to what conduct is required or proscribed by their beliefs.

25. The problem does not stop there. HM Treasury would seek to demonstrate that 'pacifism' means different things to different people, In its most extreme form, it represents a disavowal of any use
of force in any circumstances. However, others are prepared to sanction self-defence in the face of actual attack. They might therefore draw a distinction between the Falklands Conflict (which involved the defence of Sovereign territory) and the recent Iraq War (which involved a preemptive use of force). That being so, ascending to the Claimants' present request would not necessarily be required by all pacifists. Some might wish to see their taxes paid into a fund that could be used for purely defensive purposes, while others might wish to see their taxes paid into a fund that would never be used for any violent purposes. Others still might be prepared to see their taxes paid into a fund that was to be used for any conventional military weapons, but not for nuclear weapons.

26. The implications of the Claimants' request do not stop there. Any principled, conscientious objection to the taking human life would presumably also require them not to pay any taxes towards any fund that was used in par to provide firearms to the police. So, the Claimants might insist that their tax payments should be ring-fenced against any contribution to the police budget.

 

27. Furthermore, if these Claimants are right about the effect of Article 9(1), then others with equally firm religious or philosophical convictions would be entitled to make comparable claims. Devout Roman Catholics might object to paying taxes into a fund that was used in part to make abortions available. Christian Scientists might object to paying taxes into a fund that was used in part to provide any form of modern medical care. Animal rights activists might object to paying taxes into a fund that was used to support research that involved tests on animals, or to acquire products that had been tested on animals.

 

28. The possibilities could be multiplied across the core spectrum. There is an almost infinite number of possible categories of Government activity to which people might conscientiously object on religious or philosophical grounds, and an almost infinite number of possible variations to each such objection. If the Claimants are right, then all such religious and philosophical beliefs would have to be respect in the fiscal regime by setting up segregated funds into which the different objectors' taxes would be paid.

 

29. That only takes account of conscientious objections. The Government would, no doubt, also be faced with bogus claims to religious or philosophical beliefs, calculated to delay or prevent the recovery of taxes. If it became known that the Government had to set up segregated funds to cater for individual beliefs before it could demand the payment of tax, there would plainly be a ripe opportunity for the unscrupulous to play the system by inventing some improbable belief, and refusing to pay any tax until 'appropriate' accounting measures bad been taken to respect that belief. The practical difficulties that the Government would face in seeking to test whether those beliefs were genuine or not would be insurmountable. In this context, it is worth noting that the Grand Chamber in Sahir said at /107 that the State's duty under Article 9:

"is incompatible with any power on the State's part to assess the legitimacy of religious beliefs or the ways in which those belles are expressed."
There would accordingly be almost no realistic scope for challenging the authenticity of any alleged beliefs.

30. Leaving aside any such problems in the handling of tax receipt, there would also be comparable problems in handling the necessary payments out from Government funds. For example, a pacifist might not object to the Royal Navy providing fisheries protection, or to the Army providing peace-keeping services in opuntries plagucd by civil war. But how would their scruples be respected by the Ministry of Defence? Would the MoD have to maintain separate bank accounts, from which expenditure would be made on the different classes of activity, thereby
ensuring that different categories of objectors could be satisfied that their money' was not being used for a purpose to which they objected?

 

31. Similar problems would be encountered in all other situations. For example, a person who objected to the use of firearms by the police might not object to the existence of unarmed officers. But how sould their scruples be respected by the various police authorities around the country? Would each authority have to maintain separate bank accounts, one for purchasing firearms and training armed officers, and the other for all other expenses? And if so, where would the line be drawn between the two? Would the provision of transport to an anned police unit constitute
"facilitating the killing of another human being"? If so, would the police have to maintain separate vehicles, some of which could only be used for transporting armed units, and others that would only be used for transporting unarmed officers?

32. The practical implications of acceding to the Claimants' objection arc literally incalculable. The administrative cost of complying with all such requests would inevitably necessitate either a
significant rise in taxation or a significant reduction in public services.


(iii) Limited interference

33. As a matter of principle, the cogency of any arguments on justification must be related to the degree of interference in question, balanced against the gravity of the public interest being pursued. In other words, the more serious the interference with a person's Convention rights, the more compelling the justification must be; and, the more important the public interest being pursued, the more compelling the justification will be.

 

34. In the present case, the degree of interference is extremely slight, for all the reasons summarised above in relation to the argument on interference.

 

35. By contrast, defence of the community is one of State's most important obligations. It is reflected in the Convention principally in Articles 2 and 3, and in Article 1 of the First Protocol. Any proposal from the Claimants that undermines the State's ability to discharge that obligation would have very serious consequences for its ability to meet its commitments under Article 1 of the Convention. When the gravity of the State's obligation is balanced against the very limited form of interference with the Claimants' beliefs (assuming, for the purposes of this stage of the argument, that there is any such interference), and the very serious impact on the public interest that would now from acceding to their request, HM Treasury submit that the Claimants' proposal is wholly disproportionate.

(iv) The Claimant's arguments undemocratic

36. The final objection to the Claimants' argument is that it is profoundly undemocratic. As the Grand Chamber explained in /108 of its recent judgement in Sahin:
"Pluralism, tolerance and broadmindedness are hallmarks of a democratic society'. Although Individual interests must on occasion by subordinated to those of a group, democracy does not simple mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position … Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society.
Where these 'rights and freedoms' are themselves among those guaranteed by the Convention or its Protocols, it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a 'democratic society."

37. In this case, the Claimants are socking to invoke the principle set out in the first half of this passage, without conceding the correlative principle set out in the second. In other words, they are asking for concessions to be made to accommodate their own beliefs, without themselves making any concessions to the general interest of the community.

38. It is an inescapable function of a democratic society that we live together under a Government, not all of whose activities we would all support. But the accepted means for altering those practices is the democratic process. By contrast, acceding to the present application would involve the provision of tailor-made concessions to individuals who derive all the benefits of living in a democratic society, and in particular who enjoy the protection and other assistance provided by the Armed Forces, but who do not wish either to contribute to the provision of that protection and assistance, or to employ democratic means to achieve their removal. In other words, it would have the effect of restricting the Government's freedom of choice, otherwise then
through the democratic process.


(V) The Claimants argument ignores Al PI

39. Finally, the Claimant's argument ignores the force of Al.Pl. The protection afforded by that Article so the peaceful enjoyment of a person's possessions "shall not … in any way impair the right of a State to enforce such laws as it deems necessary … to secure the payment of taxes".


Conclusion:

40. For these reasons, HM Treasury would submit that the Claimants' proposal is disproportionate, and it contrary to the arguments summarised above) there is any interference with their Convention rights, that interference is entirely justified.

Jonathan Crow

Paul Harris

14 December 2005

 
Treasury's skeleton argument against our appeal - 14/12/05

This was their reply to the argument being put forward by the Treasury to the Court of Appeal. 

Case No: CO/1698/2005
IN THE COURT OF APPEAL

R (Boughton) v HM Treasury
CLAIMANTS' REPLY SKELETON
toHMT's Hybrid Submissions

1. Sedley LJ's Order for Directions dated 21.11.05 allowed the claimants to reply to points made in HMT's hybrid submissions dated 14.12.05. These reply submissions should be read in conjunction with the claimants' skeleton argument (Appeal Bundle p.11) whose contents are not repeated.

(1) HM Treasury's Principal Case

2. HMT's case is that Collins J was right, for the reasons that he gave, to conclude that article 9 ECHR is not engaged.

3. However:

(1) HMT has not grappled with the points identified, both in theClaimant's Grounds (pp. 34 -50) and their skeleton argument (pp. 11-15) as to why the Commission's decision in C v UK no longer represents the legal answer in this case.

(2) HMT has not explained why Sedley LJ was wrong to observe (19.10.05) that: "For the reasons summarised in the present skeleton, I think it arguable that the jurisprudence is not homogeneous and the Art 9(1) door may at least be ajar".

(3) HMT has not dealt with the similar observations of Rix LJ in Khan (and Williamson) and Mummery LJ in Copsey, regarding the Strasbourg Commission's restrictive approach to the engagement of Article 9: claimants' skeleton §§5 and 7(c) (p. 13).

4. The position is:

(1) HMT's position remains (see judgment of Collins J below at §§8 and 14 (pp. 18 and 2)) that, absent the Strasbourg Commission authority on which it so strongly relies, there is an arguable basis in principle why a pacifist's conscientious tax objection is capable of being an Art 9 "manifestation".

(2) HMT appears to imply that C v UK is a case which has been recently endorsed by the Grand Chamber of the ECtHR in Sahin v Turkey (App.44774/98). But the passage in Sahin (§105) did no more than confirm a proposition (derived from Arrowsmith) found in C v UK (and in the other cases referred to at §105 - these are not said to support HMT in this case). The proposition is that "Article 9 does not protect every act motivated or inspired by a religion or belief". That proposition is common ground. See §27 of the claimants' Grounds for Judicial Review (p 41). Thus, it was the proposition for which the Grand Chamber cited C v UK (see HMT's skeleton §7).

(3) An act merely motivated or inspired by religion or belief is insufficient. But what suffices, in principle, is where a specific act expresses a serious and sincerely held belief, the act being compelled by the belief as a matter of perceived obligation. That is the position here: the claimants are conscientious objectors to military activity whose deeply held beliefs do not allow their participation through provision of their money - hence they feel impelled to withhold the military proportion until arrangements have been made for a separate fund.

(4) The 'perceived obligation' approach has authoritatively been accepted and applied by the English courts - in applying (not extending) HRA:ECHR Article 9. See Williamson (claimants' skeleton 7(d)). It is also reflected in Sahin itself (see §§76-78).

(5) The cases also amply demonstrate (claimants' skeleton §5) why the fact that a requirement is 'general and neutral' (emphasised in C v UK) is no longer a sound basis in principle for holding Article 9 to be unengaged. Sahin too reinforces this conclusion.

5. The present case has taken a wrong turn because the judge was persuaded by HMT's reliance on the C v UK cases as a "clear and constant line" which provide the answer. Permission for judicial review should have been granted.

(2) HMT's Evidential Summary

6. These things should be noted:

(1) HMT has been invited by the Court to set out in the round, a "summary" of the grounds on which HMT intends to contest this claim for judicial review, if permission is granted. That in fact is what CPR 54.8(4)(a)(i) requires.

(2) HMT's summary undoubtedly contains certain factual propositions which HMT considers it can "establish by evidence". See those matters expressly called "factual considerations" at §14. The claimants accept that those are matters of fact, and moreover the claimants do not consider that they can or would wish to take issue with those matters as sustainable on evidence.

(3) However, it must be recognised that HMT's summary also contains much in the way of submission (see §§15-40). It is helpful to have a summary of the submissions which HMT will be advancing (with supportive evidence) at a substantive hearing. But the claimants do not accept that these matters are "propositions of fact", sti1l less which it is accepted that HMT would be able to "establish by evidence". They are submissions, in this "hybrid" document (§1), which submissions HMT would develop, once its evidence is lodged.

(4) HMT's submissions at §§15-40 are not accepted and the claimants' position is that they could establish by way of rebuttal, were there evidence on these topics from HMT before the Court, that the Court should not uphold these points and/or so as to dismiss the claim for judicial review.

(5) HMT itself recognises that its position is and remains that it is not saying that these further points, on which it wishes to rely, constitute a knock-out blow. It maintains, as it did before Collins J below, that the basis for refusing permission for judicial review is the engagement point (C v UK). See HMT's skeleton §10: "It is on this basis alone that HMT Treasury invite the Court of Appeal to reject the renewed application."

(6) The claimants will seek to assist the Court by responding here in outline to the main points which have been raised. 

(a) "No interference with article 9

7. HMT submits that there is no interference with the Claimant's religious beliefs because "there is no rational basis" (§17) for considering:

(1) that the present arrangements involve taxpayers' money being used for defence purposes (§15), since moneys are mixed and cannot be 'traced' and lose their separate identity in the consolidated fund; or

(2) that a separate fund (for non-military uses) would remove the problem, since military expenditure would continue as before, from the consolidated fund (§16).

8. The claimants respond as follows. It is entirely 'rational' for the claimants to consider:

(1) that payment of their tax monies into the consolidated fund does involve their being made to pay for the State's military activities. Indeed, HMT's insistence on its 'mixing' and 'tracing' points serves to emphasise the impossibility of saying that taxpayer money is not used for military purposes where it is in the consolidated fund;

(2) that a separate fund, not used for military purposes, would solve the problem and accommodate their conscientious objection by reconciling their wish to pay their taxes in full and their need to protect a suitable proportion of their taxes from the consolidated fund and so military use. That is a mature reconciliation which is to their credit.

9. The matter can be tested - suppose a body (public or private) seeking to impose a £100 levy, on the basis that it will later use 10%out of the fund for terrorism or torture. There would be nothing "irrational" about a person feeling impelled as a matter of conscientious belief not to pay more than £90 into that fund. In fact, even if HMT were right to suggest that the claimants do not go far enough and that the only "rational" response to deal with the problem, striking a justified balance, were a separate fund for the entirety of pacifist conscientious objectors' tax monies, so be it.

10. Further, it misses the point to ask whether the effect of a separate fund would be to "reduce the aggregate amount that the government spent on defence" (HMT's skeleton §16). The question is rather whether the dilemma of conscience would
be solved and reconciled.

11. But in any event it is not for the State (whether HMT or the Court) to characterise as 'irrational' serious and genuinely held beliefs and the lines which people draw as a matter of perceived obligation:

(1) The State does not, by reference to some "rationality" test, dictate to those who hold and reconcile religious or other beliefs - as to appearance, or food, or medical intervention - that their abstention is 'pointless' or their reconciliation 'misplaced'.

(2) HMT makes this very point (§29, but at the wrong stage of the argument). It is not for the State to impugn as 'irrational' or 'illegitimate' some serious and sincerely held belief as to what action is and is not compatible with fundamental values.

(3) The claimants' conclusions, as to what action is precluded and permitted as a matter of conscience, are genuinely and sincerely held as being impelled by their pacifist beliefs. Collins J rightly accepted this (§5 of the judgment below). As HMT had itself previously said: "We respect the views of your clients and their integrity in looking for solutions to their concerns".

(b) "Any interference is justified"

12. HMT make five submissions about justification. It is to be noted that:

(1) HMT does not say that it would not be "reasonably possible" to organise the sort of separate fund to which Collins J referred ijudgment §4). It is interesting that exceptions are made (HMT's skeleton §§14.2, 14.4).

(2) HMT does not grapple with the test in the CESA case (Grounds for Judicial Review §§21, 54).

(3) HMT does not say this would be detrimental to Government military policy or execution - elsewhere, HMT contends that there would be no change in substance from the point of view of the State's activities (HMT's skeleton §16).

(4) HMT does not say that it would be impossible to devise and draw a line to deal with pacifism (Collins J §3). Such a line has long had to be drawn in other areas - notably conscientious objection and military service.

13. Turning to HMT's five points. HMT's first answer concerns "non-excludable benefit" (§21). This is a bad, and dangerous, suggested answer. Would the death penalty, or even the Iraq War, be sought to be justified on the basis of 'safer streets'? The fact that the State will go ahead anyway, and would wish to satisfy a Court that the public as a whole benefits (or cannot escape such benefits as there are), cannot in principle be an answer overriding Article 9 beliefs. This has not been a good answer, in the view of the United Kingdom, on the question of conscientious objection to military service.

14. HMT's second answer concerns "the implications of acceding to the request". 
HMT submits (§§25, 30) that 'pacifism' requires the drawing of a line, and people might fall on one side or the other.1 But it is the devising of a sensible mechanism which would constitute the striking of a fair balance. Moreover, it has expressly been recognised since Arrowsmith that pacifism is a belief which Article 9 protects, a protection which HMT's line-drawing point would empty of any effect.

(1) Next, HMT submits (§§27-28, 31) that there would be others able to make comparable claims, and that these are "almost infinite". That overlooks the status afforded to pacifism and assumes parity with other beliefs. Moreover, it asserts the existence of other equivalent "manifestations" - but HMT does not suggest that it can evidence any other situation where there is conscientious objection to tax on the basis of perceived obligation, still less that such situation as may arise -if it did - could not be addressed. This is a 'floodgates' argument, and one unsupported by any evidence or appraisal. 

(2) Next, HMT submits that there could be "bogus claims" (§29), relying on the lack of scope for challenging their "authenticity". In the first place, HMT is confusing (a) the State's inability to impugn the 'rationality' of a serious and sincerely held view (the citation from Sahin) with (b) the separate question (which can certainly be questioned) of whether that view is indeed seriously and sincerely held. Secondly, the latter question inevitably arises in Article 9 cases, where it is and can be tested. There is no reason why (as with other contentious objection) 'bogus' claims cannot be tested and identified. HMT does not say, and certainly does not evidence, that this would not be reasonably possible.

(3) Finally, HMT refers to "administrative costll (§32), based on the "incalculable" implications of the suggested floodgates effects. This submission betrays the absence of any appraisal or evidential underpinning for the suggested justification. The claimants repeat §50 of the Grounds for Judicial Review.

1 HMT also misunderstands the evidence of the First Claimant (§§24). There is no conflict between her position and that of the other Claimants. She would, like them, be satisfied with an arrangement by which she paid her tax in full, but into the protected fund.

15. HMT's third answer is that there is "limited interference", the degree of interference with Article 9 rights being "extremely limited" (§20.3). HMT repeats its earlier (unfounded) attempt to suggest that there is non-interference. Requiring a person to act contrary to their conscience is not a trivial matter. The State could not be heard to say that forcing an orthodox Jewish person to work on the Sabbath, or an orthodox Muslim woman to bare her head, or a pacifist to fight in a war are to be dismissed as minor or trivial. For the claimants, the issue is about forcing them to behave in a way which they regard as an affront to their conscience and integrity. For similar reasons, HMT's bare reliance on "the community" interest (§21) should not be an answer, still less a complete answer, to an interference with a particularly important human right (Grounds for Judicial Review §§47-48).

16. HMT's fourth answer (§§36-38) is that the implications of an article 9 claim such as this as contrary to the democratic principle. This fundamental point betrays an error of approach.

(1) It is not anti-democratic to ask the executive to make an administrative adjustment to its practices for reasons of conscience. And as Lord Nicholls said in Williamson (at §15) (p. 345), respect for differing beliefs is a hallmark of a civilised society.

(2) It is wrong to characterize military spending as a "given" public service from which all must automatically benefit and from which none may be permitted conscientiously to dissent.

(3) The claimants readily accept the need for a fair balance. HMT refers to the community interest in providing a "defence service", but has not explained why that interest requires the claimants to violate their consciences and has attached no weight whatsoever to the other side of the scales. It cannot therefore have carried out the proper balancing exercise which is both central to the article 9 issue (c.f. SB(p 375)), and entirely compatible with properly understood concepts of democracy.

(4) HMT draws attention (§36) to Sahin and the concepts of balance and compromise, and accuses the claimants of not "making any concessions to the general interest of the community" (§37). This is striking, for two reasons. First because it is HMT who is seeking to defend a blanket scheme which strikes no balance and involves no compromise at all. Secondly, because the claimants have creditably identified a solution - which reconciles their fundamental problem of conscientious belief - which would involve paying (a) their taxes in full (b) for availability to the public purse (c) with the majority of their tax monies being available to the consolidated fund. That would be a balanced solution.

17. HMT's fifth and final answer is that the challenge "ignores Article lP" (§39). It does not: but Article lP is not the answer. See Grounds for Judicial Review §§38- 42. General taxation can be an answer to a claimed Article lP violation (as the express wording states), but that does not mean that no Article 9 violation could arise out of general tax measures (suppose the poll tax and priests living in poverty).

Conclusion

18. This judicial review claim is and remains arguable, as well as being of great public importance. The judge was wrong to refuse permission for judicial review. HMT has wrongly sought to maintain that it has some knock out blow. This is a claim which should have permission for judicial review. It is a claim which ultimately should succeed. No doubt HMT would wish an opportunity, for a substantive hearing, to consider and present the evidential position in support of its summary submissions. So be it.
.
MIKE FORDHAM
DAVID PIEVSKY
Blackstone Chambers
12 January 2006

PHIL SHINER
NUSRATCHAGTAI
Public Interest Lawyers
 

Peace Tax Seven reply to the Treasury's skeleton argument against their appeal - 12/01/06

Although the Peace Tax Seven were refused the right of appeal in the Court of Appeal, this is only on the basis that their Lord justices considered that they have to take the case to the European Court of Human Rights, based on a technicality - that a British court cannot overturn what they see as 'clear and consistent jurisprudence' from Strasbourg. We draw your attention to paragraph 40 which casts clear doubts on Strasbourg's decision. So now five senior British judges are of the opinion that the European court should look again at their judgements of over 20 years ago. It is hard to see how Strasbourg could refuse to allow our case a hearing.

Neutral Citation Number: [2006] EWCA Civ 504 

Case No: C 1/2005/2113 
IN THE SUPREME COURT OF .JUDICATURE 
COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH CQURT OF .JUSTICE OUEEN'S BENCH DIVISION 
ADMINISTRATIVE COURT 
MR JUSTICE COLLINS CO/1698/2005 

Roval Courts of Justice Strand. London. WC2A 2LL 
Date: 4/05/2006 

Before: 
LORD JUSTICE MUMMERY
LORD JUSTICE SCOTT BAKER 
and 
SIR CHARLES MANTELL 

Between: 
R (BOUGHTON & ORS) Appellant 
-and- 
HM TREASURY Respondent 

MR MICHAEL FORDHAM & MR DAVID PIEVSKY (instructed by Public Interest Lawyers) for the Appellants 
MR JONATHAN CROW & MR PAUL HARRIS (instructed by the Treasury Solicitor) for the Respondent 
Hearing dates: 1 st March 2006 


Lord Justice Mummery:
The application

1. This is a renewed application for permission to issue proceedings for judicial review. At an oral inter partes hearing Collins J refused permission on the ground that the claim had no arguable possibility of success. 

2. The application invokes, in the context of general taxation imposed by central government, Article 9 of the European Convention on Human Rights, which relates to "Freedom of thought, conscience and religion." 

"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." 

3. The First Protocol Article 1 relates to the "Protection of Property" 

"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." 

4. There are 7 applicants forming a group of tax-paying pacifists ("The Peace Tax Seven") from a variety of religious and philosophical backgrounds. They object to the tax, which is collected from them by central government, being paid into a single fund and then used partly for military purposes. They wish to test, by reference to article 9, the lawfulness of the continuing failure, or the refusal on 27 January 2005, of the respondent HM Treasury 

"to establish a special fund or account, alongside the general fund or account referred to in the Exchequer and Audit Departments Act 1866 s 11 and the Public Accounts and Charges Act 1891 sl (2), for (a) receipt of monies on account of the Exchequer and the Inland Revenue collected or received from those who have an objection of conscience to their tax monies being used for military purposes and (b) use for non-military purposes only." 

5. On 19 October 2005 Sedley LJ adjourned the application for permission to the full court. He considered that it was arguable, contrary to the conclusion reached by Collins J, that article 9(1) of the Convention was engaged. Having regard, however, to what he described as the "formidable obstacle" presented by article 9(2), he gave directions on 21 November 2005 for the service of skeleton arguments with evidential propositions, which the parties considered could be established by evidence, if permission for judicial review were granted and evidence then filed. This procedure would enable the court to hear the application "from end to end", so that, if the permission application failed, the case would be over, and, if it succeeded, the court could decide on the next step. 

The main issue

6. The main issue is whether the impact of the decisions of the Strasbourg authorities on Article 9 in the context of general taxation is such that the application for judicial review has no reasonable prospect of success. 

7. Mr Fordham, who appeared for the applicants, emphasised that the case raises a question of public importance: whether the United Kingdom taxation system is compatible with article 9. The applicants conscientiously object to war in general. They also object to funding it by payment of their taxes as morally equivalent to waging war. The evidence of the applicants makes the objection eloquent in their own words: fiscal conscription to fund war compels them to do something which is against their religion and conscience; they have to hand over money to be used to fight illegal wars; they are compelled to contribute to war and actively to engage in it by their taxes; they wish to re-direct their taxes towards peaceful rather than military purposes. 

8. The applicants do not, however, seek any exemptions from paying tax or any reductions in their tax bills. On the contrary, they wish to pay their tax liabilities in full, but they cannot do so consistently with their consciences as long as no separate fund exists into which they can place a portion of their tax, where it cannot be used to pay for war or weapons. They object to paying into a single fund partly destined for military purposes and say that a separate fund, such as a Peace Tax Fund, would resolve their dilemma. It was for HM Treasury to justify its refusal to do what it reasonably could to assist the applicants in this dilemma. 

9. The failure to set up a separate peace fund is, Mr Fordham forcefully argued, an interference with the applicants' genuine and fundamental article 9 right to manifest their religious or conscientious beliefs. They are placed in the invidious position of having to choose between obeying the law of the land and the dictates of their conscience. The interference with their article 9 rights falls to be justified by HM Treasury, which refuses to set up a separate fund, denies that article 9 is engaged and disputes that it is required to justify its refusal to act on the suggestion of a special fund or account. 

10. In defence of its position HM Treasury, for whom Mr Jonathan Crow appears, relies, as did Collins J, on the decisions of the Strasbourg authorities, in particular the decision of the European Commission of Human Rights in C v. United Kingdom (1983) 37 DR 142 (Application No.10358/83) dismissing as inadmissible an application based on similar arguments over 20 years ago. The wording of that decision was almost identical to that of the Commission's decision in X (Ross) v. United Kingdom (1982) 6 EHRR 558 (Application No. 10295/82). 

11. Anticipating the way in which the point was very recently put by Lord Bingham in the landmark case of R (Begum) v. Headteacher and Governors of Denbigh High School [2006] UKHL 15 at paragraph 24, HM Treasury argues that, even if it be accepted that the Strasbourg authorities have erred on the side of strictness in rejecting complaints of interference with the Article 9 right in this area, there is a "coherent and consistent" body of Strasbourg authority, which the English courts must take into account. It demonstrates that interference with the Article 9 right is not established in a case of this kind. 

12. The applicants' response is that C v. United Kingdom is based on flawed reasoning, that it is out of step with subsequent Convention jurisprudence on Article 9 and that it does not represent a clear and constant line of authority standing in the way of their application for judicial review. 

Judgment of Collins J

13. Collins J accepted the genuineness and sincerity of the applicants' beliefs and recognised the importance of the arguments advanced, but concluded that, even if he were to grant permission, "in the end this claim would fail" and had "no arguable possibility of success." 

14. He based his decision on the preliminary issue whether Article 9(1) was engaged. The arguments before him did not touch on justification under Article 9(2) and he expressed no views on it. 

15. As to engagement of the Article 9 right, Collins J cited C v. United Kingdom in which the applicant, who was a Quaker, contended that compelling him to contribute to expenditure for armaments, rather than peaceful purposes, was an outrage to his conscience and contrary to the requirements of the manifestation of his belief through practice. The manifestation in practice of his Quaker beliefs required him to oppose recourse to force in the settlement of disputes and not to support directly or indirectly weapon procurement, weapon development and other defence related expenditure. It was therefore his case that it was a necessary part of the manifestation of his Quaker belief in practice and in observance that 40% of his income tax be diverted to different, peaceful purposes. 

16. Collins J quoted a passage from the ruling of the Commission that the claim was inadmissible. I shall quote the passage direct from the report cited on this appeal, which is slightly different from, and longer than, the quotation in the judgment of Collins J. 

"Article 9 primarily protects the sphere of personal beliefs and religious creeds, ie, the area which is sometimes called the forum intemum. In addition, it protects acts which are intimately linked to these attitudes, such as acts of worship or devotion which are aspects of the practice of a religion or belief in a generally recognised form. 

However, in protecting this personal sphere, Article 9 of the Convention does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief:- for instance, by refusing to pay certain taxes because part of the revenue so raised may be applied for military expenditure. The Commission has so held in Application No. 7050/75 (Arrowsmith v. The United Kingdom ...where it stated that "the term 'practice' as employed in Art. 9(1) does not cover each act which is motivated or influenced by a religion or belief." 

The obligation to pay taxes is a general one which has no specific conscientious implications in itself. Its neutrality in this sense is also illustrated by the fact that no tax payer can influence or determine the purpose for which his or her contributions are applied, once they are collected. Furthermore, the power of taxation is expressly recognised by the Convention system and is ascribed to the State by Article 1 ,First Protocol. 

It follows that Article 9 does not confer on the applicant the right to refuse, on the basis of his convictions, to abide by legislation, the operation of which is provided for by the Convention, and which applies neutrally and generally in the public sphere, without impinging on the freedoms guaranteed by Article 9. 

If the applicant considers the obligation to contribute through taxation to arms procurement an outrage to his conscience, he may advertise his attitude and thereby try to obtain support for it through the democratic process. 

The Commission concludes that there has been no interference with the applicant's rights guaranteed by Article 9(1) of the Convention and it follows that this aspect of the applicant's complaint is manifestly ill-founded within the meaning of Article 27(2) of the Convention. " 

17. Collins J considered Mr Fordham's criticisms of the Commission's reliance on the Arrowsmith case. He also considered his criticisms of C v. United Kingdom in the light of the approach to the engagement of article 9 in the seminal speech of Lord Nicholls in the House of Lords in Williamson (see below), in which the applicants invoked Article 9 to challenge the lawfulness of prohibiting the use of corporal punishment in schools. 

18. Collins J held that the reasoning of the Commission in C v. United Kingdom reaching a decision on the scope of the terms of an International Convention, which would affect a number of different states, should be followed. The ruling was that the payment of taxes does not engage a person's rights under Article 9(1). If the matter was to be re-considered, it must, he said, be re- considered in Strasbourg. 

19. As pointed out by Mr Jonathan Crow, appearing for HM Treasury, C v. United Kingdom is not an isolated case: there have been other decisions to the same or similar effect: V v. The Netherlands (1984) 39 DR 267 (Application No 10678/83); BH & MB v United Kingdom (18 July 1986) (Application No 11991/86); Moratilla v. Spain (1992) 72 DR 256 at 262 (Application No 17522/90); and Bouessel du Bourg v. France (1993) 16 EHRR CD 49. He contended that the court should adhere to this "clear and constant" jurisprudence of the Strasbourg authorities: R (Ullah) v. Special Adjudicator [2004] 2 AC 323 at paragraph 20 per Lord Bingham. 

20. The reasoning in C v. United Kingdom has also been recently cited with approval by the European Court of Human Rights in Sahin v. Turkey (2005) (Application No 44774/98) at paragraph 105 as an example of the general proposition that "Article 9 does not protect every act motivated or inspired by a religion or belief." 

The applicants' submissions

21. Mr Fordham's primary submission was that it was properly arguable that the reasoning in C v. United Kingdom had not shut the door on the applicants' Article 9 claim. If that submission succeeded, it was for HM Treasury, at the substantive hearing of the application for judicial review, to justify its failure or refusal to act on the suggestion of a special peace fund or account. 

22. As a preface to his criticisms of C v United Kingdom, Mr Fordham rightly pointed out that a really important point of principle was involved: the applicants could not in conscience contribute to military activities by helping to pay for them. It is not a case of seeking to avoid paying tax or securing a special exemption from it. The conscientious objection is to a particular use made of the tax paid. 

23. As for the reasoning in C v. United Kingdom he made the general point that human rights jurisprudence evolved over time. This meant that it was sometimes necessary to scrutinise earlier rulings with care having regard to the fundamental nature of the right invoked. On re-examination in the light of later developments the reasoning in C v. United Kingdomwas flawed. His first point was that a sufficiently close nexus or link existed between the individual's belief and perceived conscientious obligation and its outward manifestation in the objection to the tax paid being used for military purposes to engage article 9. The matter of obligation had to be looked at through the eyes of the applicants. For them this was not a mere matter of choice or motivation (cf Arrowsmith v. United Kingdom (1978) 3 EHRR 218 at paragraph 71 relied on in C v. United Kingdom). 

24. Further, the two specific points made in the Commission ruling were, first, that the tax was "general" and "neutral" and, secondly, that, in the context of the Protocol on the protection of property and possession, the Convention recognised the right of the State, by way of exception to that protection, to enforce general taxes. In principle, neither point was a good answer to the right of the individual to invoke Article 9. Subsequent decisions in Strasbourg demonstrate that general and neutral measures engage Article 9 and require justification: Buscarini v. San Marino (1999) 6 BHRC 638 and Sahin v. Turkey (29 June 2004, Application No. 44774/98). The State was required to justify the absence of special arrangements to accommodate the applicants' perceived obligations of conscience and to do all that it reasonably could to cater for their beliefs. 

25. Passages were also cited from the speech of Lord Nicholls in the House of Lords in R (Williamson) v. Secretary of State for Education and Employment [2005] 2 AC 246 at paragraphs 9, 22 to 24, 30-32, 35 and from the speech of Lord Walker at paragraph 67. Mr Fordham submitted that it was clear from Williamson that it was not for the court in Article 9 cases to judge the validity of the asserted belief or perceived obligation by some objective standard; that the guaranteed freedom of belief protected the subjective belief of an individual, however irrational, inconsistent or surprising it may seem to some; that a belief such as pacifism fell within Article 9; that a belief might take the form of a perceived obligation and the doing of an act pursuant to that belief might be a manifestation of that belief in practice, so that the act is "intimately linked" to the belief; and that the acts of manifestation of belief were not limited to acts of worship and devotion. All of these points, he argued, added real force to his criticisms of the ruling in C v United Kingdom and against there being clear and constant Strasbourg jurisprudence against the engagement of Article 9 in tax cases. Mr Fordham also relied on the critical comments in Copsey v. Devon Clays Ltd [2005] ICR 1789 on the early Strasbourg decisions on Article 9. 

HM Treasury's submissions

26. In accordance with the directions of Sedley U HM Treasury supplied substantial written arguments on whether there has been an interference with the applicants' Article 9 rights and, if so, how such interference could be justified. HM Treasury was not required to serve, and did not serve, at this stage any evidence on the issue of interference and justification under Article 9(2). 

27. In his excellent submissions Mr Crow made it clear that HM Treasury did not question the sincerity of the applicants' beliefs or the importance to them of their objections to the use of tax for military purposes. He also accepted that pacifist beliefs were capable of falling within Article 9, while correctly pointing out the qualified nature of the right to manifest beliefs, as compared to the absolute nature of the right to hold the beliefs. 

28. He supported his primary proposition that Article 9 is not engaged in this case by reference to the line of decisions by the Strasbourg authorities cited above that the imposition of general taxation does not interfere with the manifestation of religious or philosophical beliefs. The right to manifest such beliefs does not cover the situation in this case, which is essentially the same as was considered in C v United Kingdom and followed in later cases. The raising of revenue by the imposition of general taxation is "neutral" from a religious or moral point of view. It is not sufficiently intimately linked to the manifestation of religious or philosophical belief to engage article 9. 

29. The applicants are not, he pointed out, without remedy: they can take a complaint to Strasbourg and attempt to persuade the ECHR to change its mind on the settled scope of Article 9. 

30. In addition to his primary point Mr Crow advanced other arguments as to why the application for judicial review is unarguable. 

31. First, quite apart from the Strasbourg jurisprudence on the scope of Article 9, there is no basis for suggesting any actual interference with the applicants' Article 9 right and, in any case, the solution of a separate fund proposed by the applicants and rejected by HM Treasury would not remove the perceived interference. 

32. The position is that the taxes paid by the applicants are not in any real sense being used for military purposes. The tax paid is money received into the Consolidated Fund. It loses its separate identity. Amounts released from the Consolidated Fund or transferred into the National Loans Fund cannot be identified with the amounts of tax paid by the applicants. 

33. Nor can it be meaningfully claimed that their tax is being used for military purposes in the sense of facilitating the killing of human beings. Attention was drawn to the divers functions embraced by the defence budget for "military purposes" to which the conscientious objections of the applicants would not apply: protection against terrorism; emergency support in times of civil crises; search and rescue operations; fisheries protection; counter drugs work; humanitarian engagements in times of natural disaster; and peace-keeping support for law enforcement agencies in the UK and abroad. 

34. Even if the applicants' taxes were paid into a segregated fund, that would not reduce the aggregate amount spent by the government on military purposes. The payment of tax would be a contribution to the ability of the government to spend money, including expenditure on military purposes. Any payment of tax by the applicants is a contribution to the overall pot, from which government expenditure is drawn. The ultimate result of government expenditure on military purposes would not be affected by dividing the pot into two. 

35. If, contrary to his contentions, there is interference with the applicants' Article 9 rights, Mr Crow outlined a number of grounds on which the interference could be justified: the interference is "prescribed by law" (section 44 of the Commissioners for Revenue and Customs Act 2005); the interference pursues a legitimate objective of protecting the rights of others by the provision of public services and of defence services for the benefit of the community as a whole; and the interference is necessary in a democratic society. 

36. As for proportionality, Mr Crow made five points made in support of the proposition that the proposal made by the applicants is disproportionate and that the interference complained of is justified. 

37. First, the benefits of defence in protecting the community as a whole cannot be avoided, denied or excluded and the government is entitled to require everyone to contribute towards the cost of the benefits. Secondly, the practical implications of acceding to the applicants' request are incalculable as regards the handling of tax receipts and the handling of expenditure from central
funds. They would not be confined to dealing with the particular position taken by the applicants or even to various degrees and shades of pacifism: they could extend beyond objections to the use of taxes for military purposes to a wide range of other religious and philosophical objections requiring the setting up of segregated funds catering for individual beliefs across the entire spectrum of public expenditure. Just the administrative cost of doing so would lead to a rise in taxes and a reduction in public services. Thirdly, the degree of interference with the rights in question is extremely limited, whereas the public interest pursued in defending the whole community is extremely important. Fourthly, the applicants' proposal is undemocratic. The applicants, who enjoy the benefits of living in a democratic society, seek tailor-made concessions to accommodate their own beliefs, while making no concessions to the general interest of the community as a whole in maintaining and promoting a democratic society in which there is a balance of pluralism, tolerance and broadmindedness. Fifthly, and finally, the proposal ignores the specific wording of article 1 of the First Protocol. It provides that the protection of the peaceful enjoyment of a person's possessions does not impair the right of a State to enforce laws deemed necessary to secure the payment of taxes. 

Conclusion 

38. I am grateful to Mr Fordham for his careful and detailed analysis and criticisms of the Strasbourg jurisprudence, both generally and on specific points, and the recent English authorities, principally Williamson. I am, however, of the firm view that the Strasbourg jurisprudence is sufficiently "coherent and consistent" in its treatment of Article 9 applications in the context of general taxation to deter the English courts from departing from them or modifying them. 

39. In the face of the Strasbourg jurisprudence Collins J was right to refuse permission for judicial review. This court should do likewise (a) without requiring HM Treasury to justify its failure or refusal to act on the suggestion of a special fund or account and (b) without expressing any view one way or the other on the arguments advanced by HM Treasury on interference and justification, which were only made in order to comply with the procedural order made by Sedley LJ in connection with the renewed application. 

40. The submissions of HM Treasury on the area covered by the decisions of the Strasbourg authorities have persuaded me that an application for judicial review is bound to fail, unless and until the Strasbourg authorities decide to depart from or modify their earlier rulings. They have taken what may be thought to be a rather strict or narrow line on the manifestation of religious and philosophical belief in a number of areas central to the daily life of the individual citizen in the modem state, such as employment, education and fiscal responsibilities. In some respects the reasoning may be legally and logically unsound. What matters for present purposes, however, is that it is a clear and consistent line and, as such, it must be respected by the courts of the United Kingdom.

41. In my judgment, the proper forum in which the applicants should make their attack on the decisions of the Strasbourg authorities is before the European Court of Human Rights in Strasbourg. In the meantime the applicants are not without rights under Article 9 to manifest their pacifist beliefs by peaceful protests against war and against expenditure by central government on military purposes and by publicly declaring that the payment of their taxes in full without segregation is by compulsion, under protest and against their strongly held religious beliefs and consciences. 

Result 

42. For the reasons given above I would dismiss the renewed application for permission. 

Lord Justice Scott Baker:

43. I agree. 

Sir Charles Mantell: 

44. I also agree. 

 
Court of Appeal Judgement - 04/05/06

The following application was lodged with the European Court of Human Rights in January 2007. It was supported by testimonies from Quaker, Buddhist and Anglican experts. 

IN THE EUROPEAN COURT OF HUMAN RIGHTS

BETWEEN:

Margaret Brenda Broughton, Joe Jenkins, Robin Brookes, Sîan Cwper, Simon Heywood, Roy Prockter, and Birgit Völlm

Applicants

-and-

UNITED KINGDOM

Respondent

APPLCATION PURSUANT TO ARTICLE 34 OF THE EUROPEAN
CONVENTION ON HUMAN RIGHTS AND RULES 45 AND 47
OF THE RULES OF COURT

I. THE PARTIES

A: The Applicants

Margaret Brenda Broughton, Joe Jenkins, Robin Brookes, Sîan Cwper, Simon Heywood, Roy Prockter, and Birgit Völlm...

B: The High Contracting Party

UNITED KINGDOM

Preferred language: English

PREAMBLE

This application was introduced to the Court by a detailed letter dated 30th October 2006 in which the Applicants set out their personal details, a brief statement of the facts and a statement of the alleged violations of the Convention under Article 9 and Articles 9 and 14 taken together. The letter of 30th October 2006 was within the six-month time limit because the final decision in this case was that of the Court of Appeal on 4th/ May 2006 dismissing the Applicants’ appeal. In the letter of 30th October 2006, the Applicants indicated their intention to provide a fuller exposition of their complaint, with supporting documents within six weeks, i.e. by 11th December 2006. This documents is that fuller exposition and the supporting documents are attached.

II. STATEMENT OF FACTS

Introduction.

This application concerns the impact of the use of taxation for military purposes on each Applicant’s right to freedom of thought, conscience and religion. The refusal of HM Treasury to create a separate fund to receive a proportion of the tax monies paid by the Applicants and to be used exclusively for non-military purposes, is an unjustified interference with the exercise of that freedom and constitutes a failure to secure the right in question. Such failure also constitutes unlawful discrimination against the Applicants.

The Applicants are the ‘Peace Tax Seven’, a group of United Kingdom citizens. Each of the Applicants objects to war for reasons of conscience. Consequently, each of the Applicants also objects to the use for military purposes of tax monies that they contribute to the state, since they regard this financial contribution towards war as morally equivalent to fighting a war. Although it is no longer possible for citizens to be conscripted into the British army, the Applicants conscientiously object to the conscription of the money which they contribute in taxes, just as much as they would object to conscription into military service.

The Applicants have kept the money that they would otherwise have paid in taxes in a separate account. It has always been and remains the intention of the Applicants to pay their tax liabilities in full. The present application is intended to find a basis for doing so that is compatible with the Convention and not an affront to their consciences.

Application before Collins J

On 25th July 2005 the Applicants sought permission to apply for judicial review of HM Treasury’s refusal to establish a fund, to be used exclusively for non-military purposes, into which individuals with a conscientious objection to war could pay that proportion of their taxes which would otherwise be used for military purposes. Mr Justice Collins refused permission on the basis that the claim had no arguable possibility of success. Referring in particular to the Commission’s decision in C v United Kingdom, he held that the High Court could not upset the clear jurisprudence of Strasbourg.

Appeal to the Court of Appeal

Lord Justice Sedley, sitting alone, disagreed with Mr Justice Collins. He considered it arguable that Article 9(1) of the Convention was engaged and adjourned the application for permission to the full court. The Applicants renewed their application in the Court of Appeal on 1st March 2006.

At that hearing, Lord Justice Mummery held that, in the face of the Strasbourg jurisprudence, Mr Justice Collins had been right to refuse permission for judicial review since the application was bound to fail “unless and until the Strasbourg authorities decide to depart from or modify their earlier rulings”. Significantly, however, Lord Justice Mummery observed that the Strasbourg authorities “have taken what may be thought to be a rather strict or narrow line on the manifestation of religious and philosophical belief in a number of areas central to the daily life of the individual citizen in the modern state, such as employment, education and fiscal responsibilities”. Lord Justice Scott Baker and Sir Charles Mantell agreed with Lord Justice Mummery and the renewed application was dismissed. The date on which the Court of Appeal dismissed the Applicants’ appeal was 4th May 2006.

DOMESTIC LAW AND PRACTICE

Legislation

The payment of tax in the United Kingdom into a Consolidated Fund is prescribed by law, specifically by statute. The statute in question is the Commissioners for Revenue and Customs Act 2005. Section 44 of the Act provides:

“(1) The Commissioners shall pay money received in the exercise of their functions into the Consolidated Fund 

(a) at such times and in such manner as the Treasury directs,

(b) with the exception of receipts specified in subsection (2), and

(c) after deduction of the disbursements specified in subsection (3).”

III. STATEMENT OF ALLEGED VIOLATION(S) OF THE CONVENTION AND/OR PROTOCOLS AND OF RELEVANT ARGUMENTS.

Violation of Article 9 of the Convention

The Applicants complain of a violation of their right to freedom of thought, conscience and religion as guaranteed by Article 9 of the Convention. In particular, they complain that:

  • as regards the payment of taxes which are used for military purposes, they are being forced to choose between obeying the law of the land and obeying the dictates of their conscience;

  • such compulsion constitutes an interference with the exercise of their right to freedom of thought, conscience and religion;

  • that interference is not justified in accordance with Article 9(2);

  • the refusal to establish a special fund for the receipt of a portion of the tax monies collected from persons like the Applicants who object to military expenditure also violates the State’s positive obligation to secure their right to freedom of thought, conscience and religion since such refusal does not strike a fair balance between the competing interests.

Applicability of Article 9(1)

The Court has emphasised that the right to freedom of thought, conscience and religion guaranteed by Article 9(1) is one of the foundations of a democratic society and that the Convention must be interpreted in such a way that the rights which it guarantees are practical and effective.

Compulsion is inconsistent with freedom. Accordingly, Article 9(1) should be considered to be engaged whenever the State requires an individual to choose between obeying the law of the land and obeying the dictates of his or her conscience or convictions.

Such a view finds support in other jurisdictions. In Lawrence v The State, Judge Chaskalson, President of the South African Constitutional Court, observed that “freedom of religion may be impaired by measures that force people to act or refrain from acting in a manner contrary to their religious beliefs”. Similarly, in the same court in Christian Education South Africa v Minister of Education, Sachs J held that “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”.

In Re Chikweche, the Supreme Court of Zimbabwe held that State courts had violated the freedom of conscience, religion and belief in refusing to register a Rastafarian lawyer on the grounds that his appearance did not constitute proper dress. Gubbay CJ explained: “It is obvious to me that the refusal by the judge to entertain the application placed the applicant in a dilemma. Its effect was to force him to choose between adhering to the precepts of his religion and thereby foregoing the right to practise his profession and appear before the courts of this country, or sacrifice an important edict of his religion in order to achieve that end.”

In R v Big M Drug Mart Ltd, in the Supreme Court of Canada, Dickson J declared:

“Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.”

In the present case, domestic law requires the Applicants to do something which, on grounds of conscience, they would not otherwise do; namely, pay tax which contributes to military expenditure. They are forced to choose between obeying the law and being true to their conscience and beliefs.

When considering the scope of Article 9, the Convention organs have sometimes applied an exclusion clause to the effect that Article 9 “does not protect every act motivated or inspired by a religion or belief” and “does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief.”

While such statements are not contrary to the general protection afforded by Article 9, it is submitted that the principles underlying them are more naturally found in, and applied in the context of, Article 9(2). This is precisely how they were applied in Leyla Sahin v Turkey, where the Grand Chamber recalled that “Article 9 does not protect every act motivated or inspired by a religion or belief” when examining whether the interference was “necessary in a democratic society”; i.e. only after endorsing the Chamber’s finding that there had indeed been an interference with the applicant’s right to manifest her religion.

It is true that in the subsequent case of Kosteski v The Former Yugoslav Republic of Macedonia, the Chamber observed that Article 9 “does not, however, protect every act motivated or inspired by a religion or belief” as part of its general introduction to Article 9. But, it is submitted, the approach of the Grand Chamber in Leyla Sahin v Turkey is more consistent with the wide scope of protection for human rights required by the Convention and should be preferred.

In Kosteski, the Chamber was not persuaded that the applicant’s absence from work, while possibly motivated by his intention to celebrate a Muslim festival, was a manifestation of his beliefs in the sense protected by Article 9. For the present Applicants, however, refusing to pay tax for military purposes is a “manifestation” of their beliefs because it is something which they are compelled or driven to do as a direct result of those beliefs. In refusing to pay tax for military purposes, they are expressing their beliefs.

Indeed, in Kosteski the Chamber was prepared to find, or at least assume, interference with the rights guaranteed by Article 9(1) insofar as the applicant complained of an interference with “the inner sphere of belief” in that he had been required to prove his faith. In the present case, the obligation to pay tax for military purposes directly affects “the inner sphere” of the Applicants’ beliefs. In contrast with the facts in Kosteski, moreover, the genuineness of the present Applicants’ convictions and beliefs, and of their conscientious objection to military spending, is not in any doubt.

Furthermore, the requirement to pay tax for military purposes does not offend against the Applicants’ Article 9 rights in an indirect or marginal way. Neither is the restriction too tenuous to be characterised as an infringement of religious freedom. For all of the above reasons, it is submitted that Article 9(1) is engaged.

Interference with the Applicants’ freedom to manifest their religion or beliefs

The fact that the Applicants are being compelled to choose between complying with the law of the land and obeying the dictates of their conscience or convictions not only engages Article 9(1) but also constitutes an interference with the exercise of their freedom to manifest their religion or beliefs.

In Supreme Holy Council of the Muslim Community v Bulgaria, the Court found that there had been interference with the applicant organisation’s Article 9(1) rights because “the relevant law and practice and the authorities’ actions had the effect of compelling the divided religious community to have a single leadership against the will of one of the two rival leaderships”.

In Thlimmenos v Greece, the Commission could not “ignore the fact that the applicant refused to serve in the armed forces because of his religious beliefs” and noted that he “never refused to comply with his general civic duties.” It continued:

“At the time of [his] conviction the possibility of alternative service did not exist in Greece. As a result, Jehovah’s Witnesses were faced with the choice of either serving in the armed forces or being convicted. In these circumstances, the Commission considers that the applicant’s conviction amounted to an interference with his right to manifest his religion.”

In Vergos v Greece, the Court held that the local authority’s refusal to delimit the site for the erection of the applicant’s house of prayer amounted to an interference with the exercise of his right to freedom of religion. In Buscarini and Others v San Marino, it found interference with Article 9 rights where the applicants were required to swear allegiance to a particular religion on pain of forfeiting their parliamentary seats. And in Leyla Sahin v Turkey, the Grand Chamber accepted the applicant’s view that wearing an Islamic headscarf was a manifestation of her belief and proceeded on the assumption that the regulations concerned interfered with her right to manifest her religion:

“The applicant said that by wearing the headscarf, she was obeying a religious precept and thereby manifesting her desire to comply strictly with the duties imposed by the Islamic faith. Accordingly, her decision to wear the headscarf may be regarded as motivated or inspired by a religion or belief and, without deciding whether such decisions are in every case taken to fulfil a religious duty, the Court proceeds on the assumption that the regulations in issue, which placed restrictions of place and manner on the right to wear the Islamic headscarf in universities, constituted an interference with the applicant’s right to manifest her religion.”

Similarly, in the present case, the Applicants submit that by refusing to pay tax for military expenditure, they are obeying a religious or moral precept and manifesting their desire to comply strictly with the fundamental tenets of, and duties imposed by, their faith or beliefs. Such precepts, tenets and duties are authoritatively explained in the experts’ reports submitted in support of this Application.

In C v United Kingdom, the Commission held that Article 9 does not confer the right to refuse to abide by legislation, the operation of which is provided for by the Convention and which applies neutrally and generally in the public sphere. As regards the first of those limbs (“legislation the operation of which is provided for by the Convention”), however, the provisions of the Convention must be interpreted “in harmony with the logic of the Convention” and thus with due regard for one another. Accordingly, whilst Article 1 of Protocol No 1 provides that the right to peaceful enjoyment of possessions is without prejudice to the State’s right to enforce such laws as it deems necessary to secure the payment of taxes, the enforcement of national tax legislation must be compatible with the State’s obligations under other provisions of the Convention and its Protocols.

As regards the second limb (“legislation which applies neutrally and generally in the public sphere”), recent cases have demonstrated that there can be interference with the exercise of Article 9 rights even where legislation applies neutrally and generally in the public sphere. For example, the Court found interference in Vergos v Greece where the local authority’s refusal to delimit the site for the erection of the applicant’s house of prayer was based upon the provisions of a decree relating to town and country planning and construction. In Buscarini and Others v San Marino, the legislation at issue was the Elections Act (Law no. 36 of 1958), which referred to a decree of 27 June 1909 which laid down the wording of the oath to be taken by members of the Republic’s parliament. And in Leyla Sahin v Turkey, the disciplinary action taken against the Applicant for wearing the Islamic headscarf was based on a circular which invoked the constitutional principle of secularism.

Accordingly, the fact that the present case concerns “legislation, the operation of which is provided for by the Convention and which applies neutrally and generally in the public sphere” does not prevent a finding of interference with the exercise by the Applicants of their right to manifest their religion or beliefs.

Furthermore, the interference in question is not trivial or insubstantial. On the contrary, it directly affects fundamental values and essential aspects of “the inner sphere” of the Applicants’ beliefs and thus undermines the very essence of their freedom to manifest their religion or beliefs.

Justification

The burden of proving that this interference is justified rests upon the Respondent State.

The limitations on the Applicants’ freedom to manifest their religion and beliefs, whilst “prescribed by law”, are not “necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others” as required by Article 9(2) of the Convention. In particular, by refusing to establish a special fund for the receipt of a portion of the tax monies collected from persons who conscientiously object to military expenditure, the United Kingdom is failing to strike a fair balance between the general interests of the community and the interests of the individual and is therefore violating Article 9.

The State must therefore be called upon to demonstrate why, in order to achieve what the Applicants accept is the legitimate aim of ensuring a viable taxation system, it is “necessary in a democratic society” to maintain a single consolidated fund and why it is impossible to accommodate the Applicants’ position by means of a separate fund.

Any concern that the finding of a breach of the Convention in the present case would open the floodgates to hundreds of similar “conscientious objection” claims is unfounded. For example, if anti-vivisectionists claimed similar conscientious objection to the payment of taxes to fund animal experimentation, it would be necessary to consider their position on its merits in the light of the Convention and determine whether it really was equivalent to the Applicants’ situation.

Violation of the State’s positive obligation to secure the Applicants’ freedom to manifest their religion or beliefs

Under Article 9 read with Article 1 of the Convention, the United Kingdom has a positive obligation to “secure” the Applicants’ right to freedom of thought, conscience and religion and their freedom to manifest their religion or beliefs.

The refusal to establish a special fund for the receipt of a portion of the tax monies collected from persons like the Applicants, who conscientiously object to military expenditure, violates this positive obligation since such refusal does not strike a fair balance between the competing interests.

The doctrine of positive obligations includes a duty to put in place a legal framework which provides effective protection for Convention rights.

In the present case, there is a realistic alternative which would meet both the respondent State’s interests and the conscientious objectors’ needs; namely, creating a special fund to receive a portion of the tax monies paid by the Applicants and other people like them, who conscientiously object to military expenditure, and setting that fund aside for non-military purposes.

United Kingdom legislation already accommodates conscientious objection in other contexts. The Abortion Act 1967 includes a conscientious objection clause which permits doctors to refuse to “participate in any treatment authorised by this Act” to which they have a conscientious objection but which obliges them to provide any necessary treatment in an emergency when the woman’s life would be at risk. Thus, subject to that caveat, doctors have the right to opt out of nationally applicable (National Health Service) standards on grounds of conscience, in fulfilment of the State’s positive obligation to secure the right to freedom of conscience.

In the present case, a fair balance between the competing interests would be ensured by establishing the special fund proposed by the Applicants. In that way, tax-payers who conscientiously objected to military expenditure would continue to fulfil all their civic obligations and the State would continue to receive the monies concerned.

Furthermore, reliance upon the State’s positive obligation to secure the Convention rights meets the “neutrality” point made by the Commission in C v United Kingdom, that the obligation to pay taxes has no specific conscientious implications in itself because no taxpayer can influence or determine the purpose for which his or her contributions are applied. Whilst an individual taxpayer cannot influence or determine how his or her contributions are used, the fact is that taxation does contribute to the United Kingdom’s military expenditure. The Applicants submit that the State’s positive obligation to secure the right guaranteed by Article 9 requires it to establish a legal framework which ensures that each of them can fulfil their taxation obligations with a clear conscience. The existence of a single consolidated fund does not achieve this.

Reliance upon the State’s positive obligation also answers the Commission’s observation in C v United Kingdom that there are other ways in which individuals who conscientiously object to paying taxes for military spending can manifest their beliefs (“he may advertise his attitude and thereby try to obtain support for it through the democratic process”). There is no way of ensuring that the tax monies which the Applicants pay to the State are used only for non-military purposes other than by establishing the proposed fund. The Applicants’ right to manifest their belief cannot be secured in any other way.

It is true that the right to conscientious objection is not, as such, guaranteed by Article 9 or any other provision of the Convention or its Protocols. Furthermore, in Application No 5591/72 the Commission stated that the words “in countries where they are recognised” in Article 4(3)(b) of the Convention showed that States have a choice whether or not to recognise conscientious objectors and, if so recognised, provide some substitute service for them. However, that case concerned conscientious objection to compulsory military service whereas the present case concerns conscientious objection to the payment of taxes for military purposes. Whereas the wording of Article 4(3)(b) would seem to prevent the imposition of a positive obligation to recognise conscientious objection to compulsory military service, there is no provision in the Convention or its Protocols which would prevent the imposition of a positive obligation to establish the kind of fund proposed by the Applicants.

Violation of Article 14 in conjunction with Article 9 of the Convention and/or with Article 1 of Protocol No 1

The Applicants further complain of a violation of their right not to be discriminated against in their enjoyment of the right to freedom of thought, conscience and religion as guaranteed by Article 14 of the Convention taken together with Article 9 of the Convention and / or of Article 1 of Protocol No 1. In particular, they complain that:

the facts fall within the ambit of Article 9 of the Convention and of Article 1 of Protocol No 1;
although their convictions make it wrong for them to contribute to military expenditure, they are being treated in the same way as persons who do not have such convictions;
there is no objective and reasonable justification for the State’s failure to treat them differently from persons who do not have such convictions.

The substantive provisions of the Convention and its Protocols are complemented by Article 14. A measure which, as such, could be in conformity with one of the substantive provisions may nevertheless violate that provision when taken in conjunction with Article 14 if it is applied in a discriminatory manner. However, there is no room for the application of Article 14 unless the facts of the case fall within the ambit of one of the substantive provisions of the Convention.

For the purposes of Article 14, a difference in treatment is discriminatory if it has no objective or reasonable justification; that is, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the aims employed and the aim sought to be realised.

The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated not only when States treat differently persons in analogous situations without objective and reasonable justification, but also when States without objective and reasonable justification fail to treat differently persons whose situations are significantly different.

Thus, in Thlimmenos v Greece, where the applicant complained that the law excluding persons convicted of a serious crime from appointment as a chartered accountant did not distinguish between persons convicted as a result of their religious beliefs (he had been convicted of insubordination for refusing to wear a military uniform) and persons convicted on other grounds, the Court held that was no objective and reasonable justification for not treating the applicant differently from other persons convicted of a serious crime.

Article 14 applies in the present case since the facts fall within the ambit of Article 9. The requirement to pay tax for military purposes clearly affects the Applicants’ enjoyment of their right in Article 9. Article 14 is relevant whenever the measures complained of “are linked to the exercise of a right guaranteed”. In Kosteski, the fact that the domestic courts’ decisions on the applicant’s appeal against the disciplinary punishment imposed on him for taking time off work to celebrate a Muslim holiday “made findings touching on the apparent genuineness of his beliefs” was sufficient to bring his complaints within the scope of Article 9.

The facts of the present case also fall within the ambit of Article 1 of Protocol No 1, which establishes that the duty to pay tax falls within its field of application. For this reason too, therefore, Article 14 is applicable.

Since the Applicants, whose deeply held beliefs and convictions make it wrong for them to contribute to military spending, are being treated in exactly the same way as people who do not have such convictions, there is prima facie discrimination contrary to Article 14 taken in conjunction with Article 9 of the Convention and /or with Article 1 of Protocol No 1.

There is no objective and reasonable justification for failing to treat the Applicants differently. Although the State enjoys a wide margin of appreciation as regards justification, weighty reasons should be required where the freedom of thought, conscience and religion is concerned since that freedom is one of the foundations of a democratic society.

As submitted above, there is a viable and realistic alternative which would meet both the respondent State’s interests and the conscientious objectors’ needs; namely, creating a special fund to receive a portion of the tax monies paid by the Applicants and people like them, who conscientiously object to military expenditure, and setting that fund aside for non-military purposes.

Summary of submissions

The Applicants submit that the use of their tax monies for military expenditure engages their Article 9 rights. The Applicants are conscientious objectors who are being compelled to support the use of military force financially. They are therefore being forced to choose between obeying their consciences and obeying the law. The Applicants submit, in line with Leyla Sahin v Turkey, that whether a particular interference with an applicant’s rights under Article 9 may be justified is more properly the subject-matter of Article 9(2) than Article 9(1), notwithstanding the fact that Article 9 “does not protect every act motivated or inspired by a religion or belief”.

The Applicants submit that in refusing to pay tax for military expenditure they are obeying a religious or moral precept analogous to those identified by the Court in Leyla Sahin v Turkey and Thlimmenos v Greece. It is therefore an interference with the manifestation of these fundamental beliefs not to provide a method of paying tax that does not offend their convictions.

A similar case to that brought by the Applicants failed in 1983 because taxation is legislation provided for in the Convention (C v United Kingdom), and because taxation legislation is generally and neutrally applicable. More recently, however, legislation that applies generally and neutrally has often been found to be incompatible with Article 9, such as in the cases of Vergos v Greece, Buscarini and Ors v San Marino, and Leyla Sahin v Turkey. Taken in conjunction with the fact that provisions of the Convention must be interpreted in harmony with its logic, this suggests that the position as stated in C v United Kingdom is no longer certain.

The failure of the United Kingdom to establish a separate fund for tax monies collected from conscientious objectors also violates Article 9 of the Convention read in conjunction with Article 1, since the State has failed in its positive obligation to secure the freedom in question.

The Applicants further submit that the United Kingdom has breached Article 14 taken in conjunction with Article 9 of the Convention and/or with Article 1 of Protocol No 1. The facts clearly fall within the scope of those substantive provisions. Despite their strong convictions regarding financial contributions to military expenditure, the Applicants are treated like others who have no such convictions (as in Thlimmenos v Greece). There is no reasonable and objective justification for failing to treat the Applicants differently. There is a viable and realistic alternative that would meet their needs.

IV. STATEMENT RELATIVE TO ARTICLE 35 OF THE CONVENTION.

Is there or was there any other appeal or other remedy available to you which you have not used? If so, explain why you have not used it.

There was, and is, no further appeal or other remedy.

V. OBJECT OF THE APPLICATION AND PROVISIONAL CLAIMS FOR JUST SATISFACTION.

The object of the application is to obtain a ruling that the refusal or failure of HM Treasury to create a separate fund to receive a proportion of the tax monies of conscientious objectors to military expenditure is a breach of the Applicants’ rights under Article 9 of the Convention taken alone and/or under Articles 9 and 14 taken together.

The Applicants claim just satisfaction in respect of non-pecuniary damage. They also seek reimbursement of the costs and expenses incurred to prevent or redress the breach of the Convention in the domestic courts and in Strasbourg.

VI. STATEMENT CONCERNING OTHER INTERNATIONAL PROCEEDINGS.

The Applicants have not submitted the above complaint to any other procedure of international investigation or settlement.

VII. LIST OF DOCUMENTS.

The Applicants submit the following documents:

a) Elizabeth Allen and David Gee: “Quaker Faith and Conscientious Objection to Taxation for Military Purposes”;
b) Rev Dr Clive Barrett: “An Anglican Approach to War-Tax Refusal”;
c) Professor Peter Harvey: “Buddhism and Conscientious Objection to War”.
 

VIII. DECLARATION AND SIGNATURE

I hereby declare that, to the best of my knowledge and belief, the information I have given in the present form is correct.

Place:…………………….. Date:……………………

PHIL SHINER – Representative for Margaret Brenda Broughton, Joe Jenkins, Robin Brookes, Sîan Cwper, Simon Heywood, Roy Prockter, and Birgit Völlm.

(Signature of the applicants or of the representative)

 
Application to ECHR - 30/09/06

The Peace Tax Seven are grateful to the Revd. Dr. Clive Barrett for drawing up this testimony supporting our application to the European Court of Human Rights. He explains why it is entirely in keeping with Christian doctrine for conscientious objectors to feel morally obliged to refuse to pay for war.

An Anglican Approach to War-Tax Refusal

Preamble

For any individual, the Will of God is an informed conscience. According to the established Anglican theology of ethics, there are three ways in which the conscience is informed, namely scripture, tradition and reason. This paper explores Christian scriptures, with the tradition of the Church of England and its antecedents, applying reason in the process to produce a distinct perspective on opposition to war and the absolute refusal of an individual to collude in war and the things of war, including the refusal to cooperate in taxation to pay for war.

A. The Scriptural Case for Peacemaking: The Old Testament

1. Shalom.

The biblical word for peace is Shalom, implying health, well-being and integrity. Consider Micahh's definition of peace:

He shall judge between many peoples, and shall arbitrate between strong nations far away; they shall beat their swords into ploughshares, and their spears into pruning hooks, nation shall not lift up sword against nation, neither shall they learn war any more; but they shall all sit under their own vines and under their own fig trees, and no one shall make them afraid; for the mouth of the Lord of hosts has spoken.

2. "Peace" when there is no peace.

Shalom embraced both a spiritual, internal peace and a relational dimension that involved the whole of society. As the meaning of Shalom expanded, the concept came to mean a wholeness, good health, prosperity, contentment, calm, without division. Simply to boast of an absence of war when the other ingredients of peace were missing, for example in a time of injustice, when there was no wholeness, was to cry "Peace" when there was no peace. (Jeremiah 6.14).

3. Response to "no peace"

The all-embracing nature of Shalom would mean that a state of peace is not defined merely by whether or not there is military activity on a battlefield. Rather, as Shalom permeates all society, so any state of peace would be dependent on the nature of every activity within society, especially preparations for war and even, in the case of nation states, taxation to pay for war and its preparations. The prophets warned against those who cried 'peace', when there was no peace. A society which did not in itself host military conflict would not be in a right relationship with itself and others, and would not be at peace, when it undertook or prepared for military action in some distant quarter. It is to be expected that those whose vocation was the promotion of peace, would reject such military preparations wherever they were found in society. It is to be expected that the upholders of Shalom would resist enforced taxation for military purposes.

4. Creation

God saw creation and that "it was good". For human beings, any sense of the sanctity of life was increased by the knowledge that "God created humankind in his own image" (Genesis 1.27). There was the repeated hope and vision of a restoration of such peace and respect. The rainbow that followed the flood (Genesis 8) was the sign of this new hope for peace. Thus too, "The wolf shall live with the lamb" (Isaiah 11.6) and Godd's new covenant with all creation in Hosea 2.18: "I will make for you a covenant on that day with the wild animals, the birds of the air, and the creeping things of the ground; and I will abolish the bow, the sword, and war from the land; and I will make you lie down in safety".

5. Commandment

In the Exodus narrative, the Decalogue includes the commandment (Exodus 20.13 or Deuteronomy 5.17) "You shall not kill", without qualification or exception.

6. Old Testament Prophets

The prophets, almost without exception, attempted to turn the people away from being reliant on force and the state. The most positive expression of this philosophy was spoken by the angel in Zechariahh's vision: "Not by might, nor by power, but by my spirit, says the Lord of hosts" (Zechariah 4.6).There was a developing understanding of God. The primitive God of battles gave way to Hoseaa's God of love (Hosea 11.1).

7. The Suffering Servant

Christians identify the prophetic figure (Isaiah 52.13-53.12) of a suffering servant with the person of Christ. A victim suffers voluntarily, without recourse to violence, for the greater good. Even without reference to the passion of Christ, the passage implied that the nation or the king was called to suffer and under no circumstances meet violence with violence.

B. The Scriptural Case for Peacemaking: The New Testament

1. Primacy of the New Testament

The New Testament laid the foundations for the first pro-peace and anti-war movement in Western history. There are a hundred references to peace in the New Testament. Erasmus observed:

To the Jews war was permitted, for the same reason as divorce, because of the hardness of their hearts. But since the time that Jesus Christ said, put up thy sword into its scabbard, Christians ought not to go to war.

2. Anglican Bishops

In an influential 1930 pronouncement, the Lambeth Conference of Anglican bishops worldwide stated that "war, as a means of settling international disputes, is incompatible with the teachingand example of our Lord Jesus Christ".

3. The Teaching of Jesus

  • "Blessed are the peacemakers, for they will be called children of God". (Matthew 5.9) The makers, the doers of peace were one with God, they were God's kin.

  • "Peace I leave with you; my peace I give to you" (John 14.27).

  • Matthean and Lukan versions of the Sermon on the Mount exhort love of enemies (Matthew 5.44; Luke 6.28), understood in both private and communal senses.

  • "Turn the other cheek" (Matthew 5.38-39).

  • "I am the way, and the truth and the life" (John 14.6). The implication is that, in Christ, peace is the way. Peace is not simply a distant, hoped-for end, it is the means by which that end might be achieved. Hence it can be deduced that non-peaceful methods, such as financing and preparing for war, will not bring peace.

  • When challenged about the emperor's coin (Mark 12.17) and the duty of paying taxation to uphold a military force that occupied the land, Jesus transcended all the emperor's claims by stating that that which was God's - i.e. everything - should be given to God. The emperorr's claims were hollow, a chimera, for nothing and no person could stand alongside the ultimate claims of God. In contemporary terms, the emperor's claims would translate to the budget of the Ministry of Defence. Alongside "Render to God the things that are of God", those claims are nothing.

4. The Example of Jesus

  • 1st century Palestine was under military occupation, with many parallels to 21st century Iraq. Jesus respected the humanity of those on both sides, whilst refusing to be caught up in the violence of either.

  • His closest followers included both Simon the Zealot (terrorist) and Matthew the collaborator. His acts of healing knew no boundaries, and were received by Jews, outsiders and Romans alike.

  • Jesus refused to be a military Messiah (John 6). Entering Jerusalem (Matthew 21; Mark 11; Luke 19; John 12) he rejected traditions of the warrior king and instead approached in the way of Zechariah 9.9-10: "Lo, your king comes to you; triumphant and victorious is he, humble and riding on a donkey, on a colt, the foal of a donkey. He will cut off the chariot from Ephraim and the warhorse from Jerusalem; and the battle-bow shall be cut off, and he shall command peace to the nationss..."

  • At the time of Jesus' arrest in Gethsemane, a follower wielded a sword, cutting the ear of the high priest's slave, Malchus. The gospels give different accounts of the episode, each indicating Jesus' rejection of the method of violence. Jesus' reported words were: "Put your sword back into its sheath" (John 18.11); "No more of this!", he said, touching the wounded ear to heal it (Luke 22.51); and most damning and prophetic of all, "Put your sword back into its place; for all who take the sword will perish by the sword. Do you not think that I cannot appeal to my Father, and he will at once send me more than twelve legions of angels?" (Matthew 26.53). In other words, the tradition shows Jesus as having the (heavenly) means to resist, but deliberately choosing not to do so, and rejecting the use of arms to protect him as well. The cause, defending Jesus himself, may have been more just than ever was claimed in any "just" war, but it met with rebuke. The way of the sword was not the way of Christ.

  • The risen Christ's Easter greeting was "Peace be with you" (John 20.19-20, 26), the intended hallmark of the resurrection community.

4. Other New Testament writing

  • God was identified with the things of peace (as in 1 Thessalonians 5.23, 2 Thessalonians 3.16); and peace was to be sought with holiness (Hebrews 12.14)

  • Romans 12.17, 1 Thessalonians 5.15 and 1 Peter 3.9 all exhort their readers and listeners not to repay anyone evil for evil. "Do not be overcome by evil, but overcome evil with good."

  • The New Testament transformed the deadly weapons of human wars and allowed Christians to have only a spiritual armoury in their stead. So Ephesians 6.12-17 speaks of the belt of truth, the breastplate of righteousness, the shield of faith, the helmet of salvation, the sword of the Spirit and "as shoes for your feet put on whatever will make you ready to proclaim the gospel of peace".

  • In the 1930s, when Canon Dick Sheppard considered wrestling "against principalities, against powers, against the rulers of the darkness of this world, against spiritual wickedness in high places" (Ephesians 6.12), he asked, "Doesn't that describe, quite accurately, what the conscientious objector does when he refuses to bear arms?"

C. The Tradition of the Church

1. The Church Fathers

In almost all areas of doctrine and Christian teaching, the formative period is regarded as the time of the early Church, when the first followers of Christ tried to come to terms with the implications of his life and witness. Pacifism and war-refusal were taken as normative.

  • A host of early Church witnesses followed Justin Martyr (d.165) in indicating that an essential part of Christian distinctiveness was that the followers of Christ had fulfilled the prophecy of turning swords into ploughshares and no longer made war on their enemies.

  • Irenaeus (Bishop of Lyons, c.177-202) was adamant that "[we] do not know how to fight, but when struck offer even the other cheek."

  • Clement of Alexandria regularly asserted that Christians reject war. "For it is not in war, but in peace, that we are trained. War needs great preparation, and luxury craves profusion; but peace and love, simple and quiet sisters, require no arms nor excessive preparation".

  • Origen (185-254) said of Jesus the law-giver, "He nowhere teaches that it is right for His own disciples to offer violence to any one, however wicked. For He did not deem it in keeping with such laws as His, which were derived from a divine source, to allow the killing of any individual whatever".

  • Origen argued that the peaceableness of Christians was the reason for their success: "How would it have been possible for the Gospel doctrine of peace, which does not even allow men to take vengeance on their enemies, to prevail throughout the world, unless at the appearance of Jesus a milder spirit had been everywhere introduced into the conduct of things?"

  • Tertullian (160-220) asked "how will a Christian make war, nay, how will he serve even in peace, without a sword, which the Lord has taken away?", for in Gethseman, the Lord, "in disarming Peter, disarmed every soldier".

  • Tertullian added: >"While He is being betrayed ... He to whom, had He willed it, legions of angels would at one word have presented themselves from the heavens, approved not the avenging sword of even one disciple. The patience of the Lord was wounded in (the wound of) Malchus. And so, too, He cursed for ever the works of the sword".

  • Lactantius: "It will be neither lawful for a just man to engage in warfare" nor to accuse any one of a capital charge, because it makes no difference whether you put a man to death with a sword or with a word, since it is the act of putting to death itself which is prohibited. Therefore, with regard to this commandment of God, there ought to be no exception at all to the rule that it is always wrong to kill a man, whom God willed to be a sacred animal."

  • Maximilian refused entry into the army, claiming, "I cannot be a soldier, I cannot do evil. I am a Christian".

  • Martin of Tours (316-397) refused to shed blood in battle: "I am the soldier of Christ: it is not lawful for me to fight".

2. Early English examples

In the English Church, examples of unease with war can be traced back to at least the 7thcentury. The Penitential of Theodore, 7th century Archbishop of Canterbury, was not the only document of the age to impose a compulsory period of penance for anyone who had killed in battle. Walter Map, Archdeacon of Oxford, complained about the Knights Templar, that

"they took up in defence of Christianity the sword which had been denied to Peter in the defence of Christ. There Peter had learned to pursue peace by patience: some one or other taught them to defeat force by fighting; they "took up the sword and perished by the sword.."

3. The First War-Tax Refusal in English Christian tradition

At the Council of Oxford in 1197, when a request was made for substantial funds and persons to assist Richard II's wars abroad, Hugh, Bishop of Lincoln refused this war taxation outright. He argued that he was not bound to produce soldiers or money for foreign wars. He said he would "prefer to return to my native land and resume my normal eremitical way of life" rather than do such a thing. Herbert le Poore, Bishop of Salisbury, took a similar stand. In a fit of rage, the king ordered the confiscation of Church property in the dioceses of Lincoln and Salisbury. Le Poore agreed to pay a fine instead, but Hugh refused. Still, nobody would lay hands on his diocesan property, for fear that Hugh would excommunicate them. The matter was resolved when Hugh went to the king to deliver some appropriately stern spiritual advice. When Richard calmed down he acknowledged Hugh's courage: "if all the bishops of the Church were like this one, there is not a king or ruler who would dare to raise his head against them".

4. The Peasants' Revolt

Although not pacifist in either its motivation or conduct, the Peasants' Revolt of 1381 was a rebellion provoked by the imposition of taxation for overseas war.

5. The Late 14th century poets.

Writing from within an explicitly Christian tradition, early English poets - Langland, Gower, Chaucer - all produced substantive works opposing war and the involvement of Christians in war. A more developed theology of war-resistance followed the disgust of John Wyclif (c.1330-1384) for the wars of the European Church. Wyclif is regarded as a saint in the Church of England calendar. Wycliffite anti-war expression reached its peak with a petition to Parliament in 1395, which included:

manslaughter by battle or pretending a temporal or religious cause without special revelation is expressly contrary to the New Testament which is a law full of grace and mercy. This conclusion is openly proved by the example of Christ's preaching here on earth which mostly taught one to love and to have mercy on his enemies, and not to kill them. The reason is that for the greater part where men fight, after the first stroke, charity is broken; and whosoever dies outside of charity follows the highway to hell... the law of mercy that is the New Testament forbids all manslaughter. In the gospel is the same law found in the Old Testament, "thou shalt not kill"... And knights who run toward heathenness to get themselves a name for killing men, displease much the King of Peace; for by meekness and suffering our belief is multiplied, and fighters and manslayers Jesus Christ hates and warns: "whoever kills by the sword, dies by the sword".

6. The Church of England

The founding of the Church of England was intended to maintain continuity with the Catholic Church, whilst adopting the best practices of the Reformation. The founding Articles of the Church of England conceded (Article XXXVII) that it was "lawful" (hardly a ringing endorsement), at the order of those in authority, for a person to undertake military duties in wars that satisfied the strict criteria of "just wars", but the language in which the article is phrased clearly implies that such action would be a departure from the norm. In 1937, the Anglican pacifist Paul Gliddon summed it up as "an extraordinarily unenthusiastic way of summoning us to the colours" paralleled by the lukewarm assent parents sometimes give to the marriage of their daughters, "If she wants to marry him, we won't stop her.." In its cautious tone and language, the Article implies not only that conscientious dissent from legal demands to support war is also lawful but that it could almost be construed as the norm.

7. William Law

An 18th century saint of the Church of England is William Law, whose tract An Humble, Earnest and Affectionate Address to the Clergy was damning of combatants on both sides of warfare: "Who reflects, how many Hundreds of Thousands, nay Millions of young Men, born into this World for no other End, but that they may be Born again of Christ, "are robbed of God's precious Gift of Life to them, " [and] have been either violently forced, or tempted in the Fire of Youth, and full strength of sinful Lusts, to forget God, Eternity, and their own Souls, and rush into a killor be killed, with as much furious haste, and goodness of Spirit, as Tiger kills Tiger for the sake of his Prey?"

8. The Peace Society

Anglicans were prominent in the influential 19th century Peace Society. One of the founders was Thomas Clarkson, recently commemorated in Westminster Abbey, and the Anglican businessman and politician William Cobden was the dominant opponent of wars in Crimea and elsewhere.

9. The Challenge to Individuals

In 1901, the Revd. A. J. Waldron considered Hosea Biglow's saying:-

"Ef you take a sword and dror it,
Ann' go stick a feller thru',
Guv'ment ain't to answer for it,
God'll send the bill to you".

Waldron believed,

"that the ethics of the question ought to be applied to the individual soldier" I believe" that no Government in the world, no tribunal in the world, can answer for the individual conscience, that every man is responsible, to himself if not to some higher power, for the right of the faculties which he possesses... I know the argument adduced is, that, if he did, he would leave the Army. Then so much the worse for the system. It is condemned on the face of it...

I hold that no man has any right, by any system, legalised or not, to hand over his personal responsibility to any Government, or to any other power. And therefore, he, the man, intelligent and moral, should be allowed to be the judge of what is right for him to do in any war...."

10. The Primacy of Conscience

Waldron's argument could be extrapolated to the area of military taxation. If every person has to take responsibility for the consequences of his or her own actions, including the consequences of contributing to the funding of armed forces, then a strong case can be made for the right of refusal to make that financial contribution. It is not possible to hand over one's conscience to another party, even to one's government. If the government is, according to one's conscience, misusing the funds it has obtained, then one is entitled, according to one's conscience, to withhold further contributions to those funds.

11. Anglican Resistance to the First World War

  • At the end of 1914, a restructuring of the peace movement and the founding of the Fellowship of Reconciliation involved a number of pacifist Anglicans, including Maude Royden and George Lansbury, (later, as a borough councillor in Poplar, imprisoned for leading a non-payment revolt against the unjust taxation structure of London County Council; he subsequently become leader of the Labour Party and Leader of the His Majesty's Opposition in Parliament).

  • Paul Jones (1880-1941), Anglican Bishop of Utah, USA, was removed from his position because of his anti-war stand.

  • Conscription was introduced into Britain in 1916. Seven per cent of those who came before tribunals as conscientious objectors to military conscription were members of the Church of England.

  • Conscientious objection also took many forms, from the Royal Army Medical Corps, to other non-combatant service within the army, to the Friends' Ambulance Unit (not restricted to Quakers), to work of national importance, to an absolute refusal to undertake any activity that might be related to the total war being waged by the nation.

  • An Anglican absolutist conscientious objector, Harold Brewster, was among a group of men sentenced to "suffer death by being shot" at a military camp in Boulogne. The sentence was later rescinded.

  • Another Anglican absolutist was Thomas Attlee, brother of a future Prime Minister, and a senior committee member of the Fellowship of Reconciliation. From 1917-1919 he was subject to a series of cat-and-mouse imprisonments, where he was immediately arrested on release from one prison sentence and given a further sentence. His health suffered irreversible damage.

  • Those who today refuse to pay taxes that fund the military stand in the tradition of those absolutists. Absolutism is not the only form of Christian pacifism, but it is a relevant, recognised and respected witness within the Anglican tradition.

12. Anglican Pacifism between the wars

Anglicans led mass national peace movements between the wars. Canon Charles Raven, Regius Professor of Divinity at Cambridge University, was Chairman of the Fellowship of Reconciliation. Most dramatically, Canon Dick Sheppard, Dean of Canterbury and then Residentiary Canon at St. Paul's Cathedral, pioneered the concept of the peace pledge by asking for postcards to be sent to him bearing the message, "We renounce war and never again, directly or indirectly, will we support or sanction another.." The response was overwhelming and before long this Peace Pledge Union (PPU) had 100,000 members. After Sheppard's death in 1937, another prominent clergyman, Canon Stuart Morris, became Chairman of the PPU. Note that Sheppard's pledge includes the concept of refusing indirectly to support war.

13. The Anglican Pacifist Fellowship

From 1937 there has been an organisation that embodies pacifism and war resistance within the Anglican Church. A pacifist rally in Westminster that year, with a procession of clergy to Lambeth Palace, led to the founding of the Anglican Pacifist Fellowship (APF). APF today has over 1200 members, who have agreed to the Fellowship pledge:

"believing that our membership of the Christian Church involves the complete repudiation of modern war, pledge ourselves to renounce war and all preparation to wage war, and to work for the construction of Christian peace in the world.."

Complete repudiation of all preparation to wage war would clearly include a conscientious objection to payment of military taxation.

14. The Second World War

As well as campaigning for peace at every opportunity, APF had a support role for conscientious objectors, especially during the Second World War. Some conscientious objectors still had to endure cat-and-mouse-imprisonment. Anglican pacifists became involved in social projects as an alternative to military duties. One project run by APF included the provision of a soup kitchen (The Hungerford Club) for down-and-outs beneath Hungerford Bridge in London. The Anglican pacifist novelist, Vera Brittain, worked hard to prevent the obliteration bombing of civilians.

15. The Nuclear Age

Canon John Collins from St. Paul's Cathedral was in the forefront of the founding leadership of the Campaign for Nuclear Disarmament (CND). The Revd. Sidney Hinkes was an early Chairman of Christian CND.

16. In the Main Stream of Anglicanism

Complete repudiation of war and the things that make for war is acknowledged as a mainstream Anglican position. Numerous bishops have been Counsellors of APF and two, Wilfred Westall, Bishop of Crediton, and Colin Scott, Assistant Bishop in the Diocese of Leicester, have chaired the Fellowship.

17. Forms of Conscientious Objection Today

Around the world there remain conscientious objectors to support, including those in the UK who uphold the principle of Peace Tax. A member of APF Governing Body, Dr. Philip Dransfield from Huddersfield, took the lead in withholding the military proportion of his taxes and was prosecuted as a result. There has already been this precedent within the Anglican tradition of peace witness. 

18. Current Wars

APF has been at the forefront of campaigning against all recent wars, including the war in Iraq. Every member of the Fellowship will be opposed to the war and will be using whatever means they have to oppose it and to work for peace. For members of APF this war, as other wars before it, is simply wrong according to "the teaching and example of our Lord Jesus Christ" and so must be opposed.

D. Summary

From the above it can be seen that:

  • A tradition of war-resistance dates back to the foundations of the Christian faith. 

  • It is a tradition rooted in scripture. 

  • The tradition of refusal to pay taxes for war is over 800 years old in the English Church. 

  • Members of the Church of England have an established record of opposition to war. 

  • Since 1937, Anglican pacifists have had their own organisation, APF. 

  • The refusal to pay taxes for war is an expression of a legitimate absolutist form of conscientious objection. 

  • It is a refusal that has Anglican precedent, and a sound basis in faith. 

The Revd. Dr. Clive Barrett, Visiting Fellow
Leeds Metropolitan University School of Applied Global Ethics
and former Chair of the Anglican Pacifist Fellowship

 
Anglican testimony to ECHR

The Peace Tax Seven are grateful to Prof. Peter Harvey for drawing up this testimony supporting our application to the European Court of Human Rights. He explains why it is entirely in keeping with Buddhist thought for conscientious objectors to feel morally obliged to refuse to pay for war.

Buddhism and conscientious objection to war

The Buddhist stance on violence, peace and war

  • Buddhism is generally seen as associated with non-violence and peace. These are both strongly represented in its value system.

  • Though some Buddhist countries have had their fair share of war and conflict, it is difficult to find any plausible 'Buddhist' rationales for violence.

  • It can be observed that Buddhism has had a general humanising effect throughout much of Asia. It has tempered the excesses of rulers and martial people, helped large empires (e.g.China) to exist without much internal conflict, and rarely, if at all, incited wars against non-Buddhists.

  • Moreover, in the midst of wars, Buddhist monasteries have often been havens of peace.

The first upasika precept

  • A fundamental value of Buddhism, non-violence, is expressed in the first and most important of the upasika precept-vows that all lay Buddhists are expected to adhere to.

  • This is expressed as an affirmation that: ‘I undertake the precept to abstain from onslaught on living beings’.

  • The precept is broken if a person intentionally causes death to any sentient being: human, animal, bird, fish or insect. It is broken by a direct act of a person or by a person ordering/requesting someone else to kill a being or do an act that requires a being to be killed.

  • This is seen to lead, through the law of karma, to suffering in this and future lives.

Compassion

  • Related Buddhist values are lovingkindness and compassion. The first involves friendly concern for the welfare and happiness of all beings, including those conventionally seen as ‘enemies’, and the second involves concern to reduce the sufferings, and the causes of suffering, of beings.

  • Compassion is foundational for Mahayana Buddhists such as those who follow the Tibetan tradition. It is held to be the central motivating factor of the path of the Bodhisattva. This complements the earlier formulation of the Buddhist path (the Noble Eightfold Path) with an added particular emphasis on concern for others.

Bodhisattva vows

  • The Brahmajala Sutra, a Mahayana code for lay and monastic followers which became influential in China, holds that those who take the Bodhisattva vows should not take any part in war.

  • It forbids detention of anyone, the storing of any kind of weapons, or taking part in any armed rebellion. Those who have taken the Bodhisattva vows should not be spectators of battles, nor should they kill, make another kill, procure the means of killing, praise killing, approve those who help in killing.

  • Its first of ten major precepts states the Brahmajala Sutra:

“A disciple of the Buddha shall not himself kill, encourage others to kill, kill by expedient means, praise killing, rejoice at witnessing killing, or kill through incantation or deviant mantras. He must not create the causes, conditions, methods, or karma of killing (italics added), and shall not intentionally kill any living creature.”[1] 

  • In Tibet, the 18 root Bodhisattva vows also include ones not to: destroy any place by such means as fire, bombs, or pollution; or encouraging people to abandon their vowed rules of moral conduct (including non-killing).

Tantric vows

  • Tibetan Buddhists also take various Tantric vows, which extend the spirit of the Bodhisattvavows. For example the Kalacakra tantric vows include one against giving up compassionate kindness for all beings.

Conscientious objection

  • Buddhism sees even defensive violence as less than ideal.

  • In line with this approach the Dhammpada states:

“Conquer anger by love, conquer evil by good, conquer the stingy by giving, conquer the liar by truth” (v.223).

“Though he should conquer a thousand thousand men in the battlefield, yet he, indeed, is the nobler victor who should conquer himself” (v.103).

  • There is a sense in which all Buddhist monks and nuns are conscientious objectors to war. This is because intentional killing of a human is an offence which leads to expulsion from the monastic community, in accordance with an ancient rule instituted by the Buddha.

  • While non-Buddhists in China sometimes criticised Buddhists for ‘shirking military duties’, it is difficult to point to any self-conscious movement for ‘conscientious objection’ to war in the history of Buddhist lands. This is not because the idea is alien to Buddhist values, but because the non-violent principle it is based on is so fundamental to Buddhism.

  • Any right-minded Buddhist knows that they should seek to avoid violence and killing. In a context of war, they might be drawn reluctantly into defensive fighting in order to save their country or community: most lay Buddhists have been prepared to break the precept against killing in self-defence, and many have joined in the defence of the community in times of need.

Non-violent reflections on a violent world

  • There are a number of Buddhist textual passages which reflect on war and punitive violence, seeking to subvert the 'violence is sometimes necessary' of worldly common sense by a dialogue with the non-violent ideal.

  • The Buddha himself came from the warrior-noble (khattiya) class but clearly implies that conquest leads to tragedy for the defeated, which may lead to hatred and the likelihood of a desire to overcome the conqueror.

  • Without justifying defensive violence, it is pointed out that aggression often leads to defensive counter-violence, which can be seen as a karmic result for the aggressor. Such a response happens, whether or not it is justified. Thus aggression is discouraged.

  • Kashi Upadhyaya comments that the peace-loving defender is portrayed as only moderately good, falling short of the ideal of complete non-violence.[2]

  • Elizabeth Harris, after an investigation of early Buddhist texts, holds:

“That lay people should never initiate violence where there is harmony or use it against the innocent is very clear. That they should not attempt to protect those under their care if the only way of doing so is to use defensive violence is not so clear... The person who feels violence is justified to protect the lives of others has indeed to take the consequences into account. He has to remember that he is risking grave [karmic] consequences for himself in that his action will inevitably bear fruit... Such a person needs to evaluate motives... Yet that person might still judge that the risks are worth facing to prevent a greater evil”.[3]

  • If violence is then used, it is something that Buddhism may understand but not approve of.

The Dalai Lama and Tibetans' peaceful opposition to Chinese occupation

  • In the early twentieth century (1906-08), when the Dalai Lama of that time ordered soldiers to fight threatening Chinese troops, this was seen in a bad light by many Tibetans, as they felt he should not be involved in killing.[4] In fact, at the time, there were hardly any soldiers in Tibet, and the country came to be easy prey for British interference, and then the Chinese Communist takeover.

  • The present Dalai Lama (the 14th, born 1935) has set up a government-in-exile in Dharamsala, India. His response to the Chinese is one of patient, but determined, non-violence.

  • He sees the action of the Chinese as having reminded the Tibetans about important Buddhist principles such as impermanence, suffering and tolerance. Yet he also has unshakeable confidence in the power of compassion, humanitarianism, non-violence and truth to bring about a restoration of the Tibetans' control of their own country, and more generally in such values benefiting the world through their animation of the 'good heart' of peoples of whatever culture.

  • Monks and nuns in Tibet have been very active in demonstrations against the Chinese, and many have been jailed and tortured. Some sections of the Tibetan population feel so frustrated that they have resorted to violence, but the Dalai Lama steadfastly opposes this and reiterates that the principle of non-violence should be followed.

  • In 1989, the Dalai Lama was awarded the Nobel Peace Prize. In his acceptance speech, he stressed the need to transform Tibet into a zone of non-violence and peace through demilitarizing it, ending the testing and stockpiling of nuclear weapons there, and protecting the environment by setting up the world's largest natural park.

  • He stresses the ideas of human rights and human equality, basing such an emphasis on the idea of the Buddha-nature shared by all.

  • He is also deeply influenced by the Bodhi-caryavatara of the seventh century Indian monk Shantideva, with its emphasis that beings are equal in their desire for happiness and dislike of pain, and that the response to provocation should be patience. If Tibetans or others need to act against an aggressor, 'we should react without bad feelings. Deep down, tolerance, compassion and patience must be present'.[5] The Chinese too 'are human beings who struggle to find happiness and deserve our compassion' (Nobel Peace Prize Lecture[6]).

  • For the Dalai Lama, the classical Buddhist theme of all being interdependent is especially true today, in a world where international economic, technological and environmental interaction is pervasive.

  • He thus stresses that we are 'truly a global family' and by necessity must develop a sense of 'universal responsibility' (Nobel Peace Prize Lecture[7]), and:

“It is our collective and individual responsibility to protect and nurture the global family, to support its weakest members and to preserve and tend to the natural environment in which we all live”.[8]

  • In this, responsibility lies not only with leaders and administrators:

“It lies with each of us individually. Peace, for example, starts within each one of us. When we have inner peace, we can be at peace with those around us. When our community is in a state of peace, it can share that peace with neighbouring communities, and so on” (Nobel Peace Prize Lecture[9]).

  • Yet he sees peace as inter-related to other issues, so that:

Peace can only last where human rights are respected, where the people are fed, and where individuals and nations are free” (Nobel Peace Prize Lecture[10]).

Modern warfare and its financial support

  • Daisaku Ikeda, Japanese leader of the international Soka Gakkai movement holds that:

“Modern military power must be regarded as very different from the self-defense forces with which man has been familiar throughout the ages. I see no grounds for justifying military power in the world today... I am convinced that examples of warfare conducted for the sake of veritable self-defense are rare”.[11]

  • In the modern context, taking part in a war is not just a question of being a soldier. Warfare is now often based on expensive, high-tech weapons that require a high level of funding by the parties involved. For states, this will come from tax revenues.

  • For a Buddhist, it should be clear that selling arms is ‘wrong livelihood’, so that the arms industry is fundamentally immoral. That part of a person’s tax payments that go to supporting such an industry, and the death it brings, should certainly make any Buddhist morally uncomfortable.

  • The earliest allusion to Buddhist attitude to taxes is in the Aggañña Sutta, in a passage which talks of human beings choosing their first king, so as to impose some order on society, in which property, theft and quarrelling had developed.

  • It is said that people reflected:

“Suppose we were to appoint a certain being who would show anger where anger was due, censure those who deserved it, and banish those who deserved banishment! And in return, we would grant him a share of the rice”.[12]

  • This implies the idea of a kind of social contract. Hence when taxes are paid, this is on the implicit assumption that this is to facilitate action in support of an orderly and moral society. To evade taxes for such purposes is wrong, on Buddhist principles - indeed the Upasaka-shila Sutra says it is an offense for a lay Bodhisattva to evade taxes or appropriate public funds[13] - but so would a ruler’s misuse of tax revenues.

  • Indeed Buddhist texts also advise laypeople to take care of their possessions so that they are not lost by the actions of kings/rulers, thieves, fire, water, or ill-disposed heirs.[14]

  • Overall, it is suggested that it is legitimate to pay taxes that support moral social purposes, but that taxes for other purposes are morally questionable.

  • In a statement to Buddhist devotees in March 2003, the Dalai Lama has said, on the war in Iraq:

“The Iraq issue is becoming very critical now. War, or the kind of organized fighting is something that came with the development of human civilization. It seems to have become part and parcel of human history or human temperament. At the same time, the world is changing dramatically. We have seen that we cannot solve human problems by fighting. Problems resulting from differences in opinion must be resolved through the gradual process of dialogue. Undoubtedly, wars produce victors and losers; but only temporarily. Victory or defeat resulting from wars cannot be long-lasting. Secondly, our world has become so interdependent that the defeat of one country must impact the rest of the word, or cause all of us to suffer losses either directly or indirectly.

But what can we do? What can we do when big powers have already made up their minds? All we can do is to pray for a gradual end to the tradition of wars. Of course, the militaristic tradition may not end easily. But, let us think of this. If there were bloodshed, people in positions of power, or those who are responsible, will find safe places; they will escape the consequent hardship. They will find safety for themselves, one way or the other. But what about the poor people, the defenseless people, the children, the old and infirm. They are the ones who will have to bear the brunt of devastation. When weapons are fired, the result will be death and destruction. Weapons will not discriminate between the innocent and guilty. A missile, once fired, will show no respect to the innocent, poor, defenseless, or those worthy of compassion. Therefore, the real losers will be the poor and defenseless, ones who are completely innocent, and those who lead a hand-to-mouth existence.”

  • When it comes to the current Iraq war, it is clear that it could not be counted as ‘defensive’. Indeed it has added to chaos and death in Iraq and stoked resentment that feeds conflict beyond it.

  • On Buddhist grounds, it seems legitimate for an individual not to lend support to it by payment of taxes which in part help it to continue.

Prof. Peter Harvey
School of Arts, Design, Media & Culture
University of Sunderland
Priestman Building
Green Terrace
Sunderland
SR1 7PZ

[1] The Brahma Net Sutra: Translated by the Buddhist Text Translation Society in USA: Buddhist Text Translation Society: http://www.purifymind.com/BrahmaNetSutra.htm

[2] Upadhyaya, K.N., 1971, Early Buddhism and the Bhagavad Gita, Delhi, Motilal Banarsidass, p.537.

[3] Harris, E.J., 1994, Violence and Disruption in Society: A Study of the Early Buddhist Texts, Wheel booklet no. 392/393, Kandy, Buddhist Publication Society, pp. 47-8.

[4] Bell, C., 1924, Tibet Past and Present, reprinted 1992, Delhi, Asian Educational Services, pp.121, 140.

[5] Quoted on Cabezón, J.I., 1996, 'Buddhist Priciples in the Tibetan Liberation Movement', in Queen, C.S. & King, S.B. (eds.), 1996, Engaged Buddhism: Buddhist Liberation Movements in Asia, Albany, State University of New York Press, pp. 295-320, p. 304.

[6] Piburn, S., ed. 1990, The Dalai Lama; A Policy of Kindness: An Anthology of Writings By and About the Dalai Lama, Ithaca, New York, Snow Lion, p. 16.

[7] Ibid p. 17.

[8] Ibid p. 114.

[9] Ibid p. 19

[10] Ibid p. 18.

[11] Toynbee, A. and Ikeda, D., 1989, Choose Life: A Dialogue, Oxford University Press, p. 208.

[12] Digha Nikaya III. 92: tr. Walshe, M., 1987, Thus have I Heard: The Long Discourses of the Buddha, London: Wisdom, p. 413.

[13] Shih, Heng-ching , tr. 1994, The Sutra on Upasaka Precepts, Berkeley, Numata Center for Buddhist Translation and Research, Bukkyo Dendo Kyokai, p. 82.

[14] Anguttara Nikaya IV. 281-5.

 
Buddhist Testimony to ECHR

The Peace Tax Seven are grateful to David Gee and Elizabeth Allen for drawing up this testimony supporting our application to the European Court of Human Rights. They explain why it is entirely in keeping with Quaker Testimony, for conscientious objectors to feel morally obliged to refuse to pay for war.

Religious Society of Friends in Britain Quaker Peace & Social Witness

Quaker faith and conscientious objection to taxation for military purposes

About Quakers

  1. The Religious Society of Friends (or ‘Quakers’) emerged as a Christian religious movement in England in the Seventeenth Century. The Society is now 354 years old and numbers around 300,000 worldwide. The Society has 16,000 members in Britain in about 470 worshipping groups.

  2. In Britain, Quaker worship has no liturgical structure; it is rooted in silent waiting for spiritual insight. Nor is there an ordained clergy; anyone may speak during the meeting if they feel moved spiritually to do so.

  3. Quakers are committed to working for peace and social justice through nonviolent social change. This has included peacebuilding overseas, humanitarian relief, social inclusion projects, peace education in schools, policy advocacy, citizens empowerment, and the establishment of new movements and organisations such as Amnesty International, Greenpeace, Oxfam and others. The work is often pioneering and small-scale. Quakers are deeply involved in national movements like the campaigns for nuclear disarmament and against arms trade.

  4. The Society’s structure is broadly egalitarian: there are no designated leaders; decisions are made by a system of representative committees, whose meetings are acts of worship as described above.

  5. In Britain, an annual meeting, called Yearly Meeting and open to all Members of the Society, decides overall policy and constitutional changes.

  6. The Society’s affairs are managed on a monthly basis by a group called Meeting for Sufferings, which consists of about 140 representatives appointed from regional Quaker groups. Meeting for Sufferings was formed in 1675 to relieve the suffering of Quakers imprisoned and persecuted for conscience’ sake. Its role has since expanded and today is the legal employer of the Society’s staff.

Quaker thought

  1. The early Quaker movement argued that the divine was present within all people; we could each know it directly and it could guide our conscience. They held that the truth of religion is weighed in personal and shared experience rather than determined by scripture or church creeds.

  2. The Society’s emphasis on direct experience of the sacred remains today. This experience inspires Quakers to strive to live authentically and humanely and it guides the conscience accordingly. For Quakers, the link between faith and faithfulness is a necessary condition of a true religious life.

Quakers and conscience

  1. For Quakers, faith intensifies and clarifies conscience, in the sense of a personal moral and existential compass. Practical commitments to peace, simplicity, equality and truthfulness - called testimonies - reflect the way Quakers believe God guides the conscience in daily life.

  2. Quakers feel that to avoid these commitments is to live within a lie, forsaking faithfulness to God, the world and one’s own self. Hence, for Quakers freedom of faith and freedom of conscience are joined and the personal and political spheres of life are not separate.

  3. Quakers have established practices for distinguishing action inspired by political opinion and that arising from conscientious faith. In order for the Quaker community to unite behind actions of its members, it must be convinced that they are seized of a genuine religious commitment, often called a ‘leading of God’. This discernment of unity may begin with the local Quaker group and then progress to regional and national levels.

  4. Through their own processes, Quaker communities around the world have repeatedly recognised the integrity of individual Quakers’ conscientious objection to taxation for military purposes as a matter of genuine religious commitment.

  5. Whether allied to faith or not, the active conscience belongs to mature citizenship; neither individuals nor society can thrive without it. Quaker faith places great trust in conscience as a force for positive social change: small groups of conscientious people have led history’s major positive social changes, such as abolition of the slave trade and recognition of minority rights. Quakers support freedom of conscience as both a human right and a social necessity.

Quaker commitment to nonviolence

  1. Quakers believe that human failings do not diminish the inherent worth of every person in God’s perspective. This is a quintessential religious conviction. It forms the basis for a rejection of violence and it inspires Quaker work for peace, justice and social inclusion.

  2. Involvement with violence is seen to be profoundly wrong in terms both of Quaker faith and the understanding of humanity that develops when following that faith. This rejection of violence was first set out in writing in 1660: ‘…the spirit of Christ which leads us into all Truth will never move us to fight and war against any man with outward weapons…’

Quakers and the state

  1. There is often harmony between requirements made by the state and those of faith and conscience. Quakers generally honour and support state systems, such as the taxation system in Britain, when they are seen to serve the social good. Quaker conscience is ‘in conversation’ with the state, rather than rigidly dogmatic, and the emphasis is on attempts to improve state systems rather than undermine them. In some cases, however, Quakers find the claims of faith and those of the state radically in conflict.

  2. A conflict of values arises when the state is seen to cause oppression or violence and expects Quakers to participate in it. For Quakers, as for many other religious people, the claims of faith are ultimately prior to those of the state. Thus, a faith commitment may lead Quakers to object to certain requirements that the state makes of them.

Conscientious objection in the Quaker tradition

  1. Conscientious objection has taken many forms in the Quaker tradition, beginning in the 17thCentury with refusal to support practices that perpetuated oppression or undermined Quaker principles: these included paying tithes, hat honour, swearing oaths and signing creedal statements. Civil disobedience drew popular attention to social injustice and helped society to become more tolerant and just.

  2. Refusal to take part in military activity has been a feature of Quakerism since the early days of the movement. Quakers understand the view that the military is often intended to serve peace, but those committed to nonviolence cannot support an institution whose power stems from the threat and use of lethal violence. History shows that reliance on that power has caused suffering beyond imagining; the human impact of recent wars over Afghanistan and Iraq has supported that view.

  3. Generally, the Quaker objection to participating in violence extends to refusal to support the military industrial complex as a whole, including its civil branches. In times of war, Quakers try to provide a service and make a contribution to peace in ways that do not involve them in the military effort. For example, Quakers carried out humanitarian relief during and between the World Wars, for which they were awarded the Nobel Peace Prize in 1947.

Quakers and conscientious objection to taxation for military purposes

  1. Quakers have long been exercised by the inconsistency of refusing to kill while paying for war and war preparations through taxation. There is no fundamental moral distinction between fighting in war and paying for others to do so; both acts facilitate violence and thus both are violent. By paying taxes that are used for warfare, Quakers feel that they are passively participating in the killing of other human beings.

  2. Quaker concern about taxation for military purposes dates back at least as far as 1755. While the Pennsylvania Assembly was debating raising funds for the British armed forces in the French and Indian War, a delegation of Quakers addressed the Assembly in opposition.

  3. Within the discipline of their faith, Quakers choose how to express their testimony to peace. Some are strongly moved to object to taxation for military purposes; others are not. The Quaker community in Britain is united in wholehearted support for those of its members who withhold a proportion of their tax payment until assured that it will be used for non-military purposes. These few individuals broadly reflect and represent the concerns of the wider Quaker community.

  4. The relatively small numbers of Quakers choosing to withhold tax does not reflect the extent of feeling in the community as a whole. The structure of the British tax system and the personal circumstances of individuals can often prevent Quakers from expressing an objection that they may nonetheless hold strongly.

Corporate Quaker support of the right of objection to taxation for military purposes

  1. As military spending reached extreme levels during the cold war, British Quakers became increasingly troubled by their tacit support for militarism through the taxation system. In 1978, Quakers were instrumental in forming what is now Conscience—the peace tax campaign to campaign for a change in the law to facilitate objection to taxation for military purposes without weakening the social obligation to pay tax.

  2. In 1982, 25 members of the Quaker staff asked their employer, Meeting for Sufferings, to withhold that proportion of their tax that would fund war preparations, until assured that it would be used for non-military purposes. Meeting for Sufferings accepted the request and challenged the law in court unsuccessfully. After failed appeals, the amount due was paid. An application to the European Commission on Human Rights was deemed inadmissible under Article 9 of the European Convention, possibly because the nature of ‘freedom to manifest religion or belief in practice’ had not been fully explored as it applies to Quakers. Under sustained protest, Meeting for Sufferings continues to pay the tax due from its employees today.

  3. Meeting for Sufferings both supports the right of individuals to object to taxation for military purposes, and objects to its own role as a gatherer of tax for the same. In 1993, the Meeting composed a statement, reading in part: ‘Not only are we expected as employers to collect taxes for military purposes, but we are also expected to participate in denying our employees the right to exercise their consciences. This offends our conscience.’ Corporate Quaker support for the peace tax campaign stands, having been reaffirmed in 2001 following another wave of staff requests not to pass on tax that would be used to facilitate warfare.

  4. Locally and nationally, Quakers continue to support successive parliamentary initiatives to change UK law. When opportunities arise, delegations meet with government ministers to put the case for a change. Quakers also support Conscience—the peace tax campaign. Some of those Quakers able to do so have continued to withhold a proportion of tax in objection to being forced to pay for war preparations. They have suffered significant distraint upon their property, harassment by debt collection companies, and occasionally imprisonment.

Conscientious objection to taxation for military purposes since the end of the cold war

  1. Quaker objections to military service and taxation for military purposes are not contingent on the severity of particular violent conflicts. The objection is a general one based on the incompatibility between the violent nature of militarism and a faith commitment to honour the absolute worth of every person.

  2. Recent developments in militarism have sharpened awareness of the human impact of war and increasingly exercise Quaker conscience. They have brought Quakers to greater awareness of the role of taxation as a primary sustainer of modern militarism. Issues of particular concern include the following, all sustained through taxation:

    1. The UK is the largest military spender in the world after the United States and faces no major conventional military threat.

    2. The UK’s approach to national security has become more activist and preemptive: initiating war has become a norm for the UK as conflicts over Kosovo, Afghanistan and Iraq illustrate.

    3. The Iraq war and occupation are near-universally believed to have been unlawful; the civilian population has suffered most; and the action has cost billions of pounds supplied through taxation.

    4. The UK government actively supports arms exports. The government’s Defence Exports Services Organisation (DESO), which employs 500 staff to promote UKmilitary exports, cost £14.4 million in the year 2005-06; DESO supported UK military sales to all 19 major violent conflicts in 2004.

    5. The International Court of Justice advised in 1996 that nuclear weapons are generally illegal under international law. According to the government, British nuclear weapons cost £12.5 billion to acquire at 1998 prices and £700 million per annum to maintain.

Elizabeth Allen, Clerk, Quaker Peace & Social Witness Central Committee

David Gee, Manager, Peace & Disarmament Programme, Quaker Peace & Social Witness

November 2006

 
Quaker Testimony to ECHR
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