R (Wilkinson) v Inland Revenue Commissioners

The House of Lords dismissed the appellant's claim that the Commissioners of Inland Revenue had acted unlawfully under section 6(1) of the Human Rights Act 1998 by refusing to grant widowers the statutory widow's bereavement allowance found in section 262 of the Income and Corporation Taxes Act 1988. The court held that the term "widow" in section 262 could not reasonably be read to include widowers, even when the statute is construed against the background of Convention rights under section 3 of the 1998 Act, and that the Commissioners did not possess power under section 1 of the Taxes Management Act 1970 to create an extra-statutory allowance of the required breadth. Consequently the Commissioners were protected from liability by section 6(2)(a) of the 1998 Act (they "could not have acted differently"). The court also held that, even if a domestic remedy had been available, just satisfaction would not necessarily have required payment because Parliament would likely have abolished the widow's allowance rather than extended it.

Background and parties.

The appellant Mr Wilkinson, a widower whose wife died on 23 June 1999, claimed that the Revenue's refusal to grant him a tax deduction comparable to the widow's bereavement allowance under section 262 of the Income and Corporation Taxes Act 1988 was discriminatory and incompatible with Convention rights, notably article 14 in conjunction with article 1 of the First Protocol. Other widowers had obtained friendly settlements with the Government in Strasbourg prior to the Human Rights Act 1998 coming into force.

Procedural history.

• Moses J at first instance accepted that the Commissioners had power under section 1 of the Taxes Management Act 1970 to make extra-statutory concessions, so section 6(2)(a) did not apply, but held section 6(2)(b) did apply because the Commissioners were giving effect to section 262.
• The Court of Appeal ([2003] EWCA Civ 814) rejected that section 1 conferred such a power and held the Commissioners were protected by section 6(2)(a). The Court of Appeal would have answered the section 6(2)(b) point differently had it accepted Moses J on section 1.
• The appeal to the House of Lords followed.

Issues framed.

• Whether section 262 could be read to include widowers in order to make it compatible with Convention rights (relying on the Interpretation Act 1978 s.6 and HRA 1998 s.3).
• Whether the Commissioners had power under section 1 Taxes Management Act 1970 to grant an extra-statutory allowance to widowers so as to avoid a Convention breach.
• Whether the Commissioners were protected from domestic liability by section 6(2)(a) or section 6(2)(b) of the Human Rights Act 1998.
• Whether just satisfaction would require payment to the appellant and whether differential treatment between claimants who litigated in Strasbourg and those who did not was irrational or an abuse of power.

Reasoning and outcome.

• The House rejected the argument that "widow" could be construed to include "widower": contextual indicators in Part VII ICTA and ordinary meaning precluded such a reading even with section 3 of the 1998 Act.
• The court accepted the Court of Appeal's analysis that the Commissioners are a statutory body and do not possess a power under section 1 TMA to create an extra-statutory concession of the necessary character; that power is limited to managerial discretion concerning collection and pragmatic concessions; it does not extend to creating benefits Parliament omitted to grant.
• Accordingly, the Commissioners "could not have acted differently" as a matter of domestic law and were protected by section 6(2)(a). The Lords also observed that, even if the power had been wider, section 6(2)(b) would have provided protection because the Commissioners were giving effect to section 262.
• On just satisfaction, the House held that compensation would not necessarily be payable: if Parliament had complied with Convention obligations it would likely have abolished the widow's allowance rather than extend it, so the claimant would not have been better off; therefore no award was required to put him in the position he would have been in had there been compliance.
• The appellant's complaints of irrationality or abuse of power in treating him differently from earlier Strasbourg claimants were rejected.

Appeal dismissed. The House held that the word "widow" in section 262 ICTA could not reasonably be read to include widowers. The Commissioners did not have power under section 1 Taxes Management Act 1970 to create an extra-statutory allowance of the breadth required; therefore section 6(2)(a) of the Human Rights Act 1998 protected them because, as a result of primary legislation, they could not have acted differently. The Lords added that, even if the Commissioners had wider powers, section 6(2)(b) would protect them. The claim for just satisfaction failed because, had Parliament complied with Convention obligations, it would likely have removed the allowance rather than extended it and so the claimant would not have been better off.

First instance: Moses J (High Court) accepted a power under s.1 Taxes Management Act 1970 but held s.6(2)(b) applied. Court of Appeal dismissed the claim ([2003] EWCA Civ 814), holding that s.1 did not confer such a power and that s.6(2)(a) applied. Appeal to the House of Lords ([2005] UKHL 30) dismissed.