COURT OF APPEAL

 

REGINA v. INLAND REVENUE COMMISSIONERS,

Ex parte NATIONAL FEDERATION OF SELF-EMPLOYED AND SMALL BUSINESSES LTD.

 

Annotated Law Reports version at [1980] Q.B. 407

 

 

COUNSEL: Jon Harvey Q.C. and Stephen Silman for the federation.

Patrick Medd Q.C. and Brian Davenport for the Inland Revenue.

 

SOLICITORS: Beachcroft, Hyman Isaacs; Solicitor of Inland Revenue.

 

JUDGES: Lord Denning M.R., Lawton and Ackner L.JJ

 

DATES: 1980 Jan. 21, 22, 23, 24; Feb. 27

 

 

Appeal from the Divisional Court on the question of a tax amnesty granted by the Inland Revenue to casual workers in Fleet Street.

 

Cur. adv. vult.

 

[*418]

 

LORD DENNING M.R. The men are called the “Fleet Street casuals.” There are about 6,000 of them. They do casual work for newspapers. They love a bit of humour. When signing their pay dockets, they do not sign their true names. They use fictitious names and addresses. One favourite is “Mickey Mouse of Sunset Boulevard.” Another is “Sir Gordon Richards of Tattenham Corner.” But they do not sign in these names merely for fun. They use them for a serious purpose. It is to hide their true identities: so that they should not be discovered by the taxmen. By this means the “Fleet Street casuals” have defrauded the revenue of about 1 million a year.

 

The employers did not know their true names. But the trade unions did. There are three trade unions controlling this newspaper trade: N.G.A., N.A.T.S.O.P.A. and S.O.G.A.T. Every casual worker has to be a member of one of these trade unions: because they operate a closed shop. Each union has the names and addresses of all its casuals. When a man seeks work, he has to go to the “call office” of the union. He is then given a “call slip” authorising him to go to a particular newspaper for work. He does his work; receives his pay; signs his pay docket as “Mickey Mouse” or other fictitious name and address; and goes home. This device defeats the revenue authorities completely. They do not know the true names of these men. The trade unions do. They have a complete list of the men, their names and addresses, and the shifts worked by them. In many ways the trade unions fill the role of the men’s employers. But the revenue authorities have no access to these lists. They have no power to compel the unions to disclose the true names and addresses. So they cannot assess them to tax on their earnings.

 

A year or two ago the revenue authorities found out about these false signatures. So did the B.B.C. They had a programme on “Panorama” exposing these frauds. The revenue authorities were perplexed. They wondered what was the best way to deal with the problem. They would have liked to have legislation to deal with it. But in the absence of new legislation, they felt that they had to make a special arrangement with those concerned. It looks as if these casuals threatened to take industrial action if their names were disclosed and they were made to pay up their past taxes. So the revenue authorities had discussions with the employers and the trade unions. They came to a special arrangement. It was this: - The men were to give their true names for the future and pay their future taxes: but they were given an amnesty for much of the past. They were to be let off most of the past tax of which they had defrauded the revenue. The reasons are given in an affidavit by Mr. Hoadley, a principal inspector of taxes:

 

“... I considered that if any solution was to have a real prospect of being effective the agreement of the employers and the co-operation of the casual printing workers and their union representatives was essential. I feared that if this co-operation could not be achieved, the employers would be unlikely to agree to any solution [*419] because of the real possibility of industrial action being taken. The newspaper industry, as is well known, is peculiarly vulnerable to industrial action and the workers have a tradition of independence. Even when the new arrangement which I describe below was introduced with the approval of the employers and the co-operation of the trade unions, over ten million copies of newspapers were lost from consequential industrial action. While the possibility of industrial action would not prevent me from seeking a satisfactory solution to the problem of printing workers in Fleet Street, I considered that any scheme could only be effective for the future if it were introduced by general agreement rather than against a background of opposition....

 

“... The main factor in my mind throughout this matter was to secure a new system for the future which would be effective to stop the tax loss. I considered that by this means more tax would be collected than if, without first securing the future, an attempt were made to recover the whole of the past tax which might have been lost. Such an attempt, being made against a large number of hostile workers where no records were available to show that they had been in receipt of casual earnings, would have been unlikely to produce any substantial sums of money and would, I consider, have seriously delayed or even permanently frustrated the introduction of the new arrangement.”

 

News of the amnesty was given in the newspapers and on the television. Many were shocked by it. Especially some self-employed and small shopkeepers - good men and true who pay their taxes. They asked themselves: “Why should these ‘Fleet Street casuals’ - who have defrauded the revenue - be given this preferential treatment? Why should they be let off when any one of us (if he did any such thing) would have been pursued to the uttermost farthing?”

 

So these small men, through their federation, 50,000 of them, took legal advice. On it they have taken advantage of a new procedure called “judicial review.” They have come to the courts and ask for this relief. (i) A declaration that the Board of Inland Revenue acted unlawfully in granting an amnesty to casual workers in Fleet Street, and (ii) an order of mandamus directed to the board to assess and collect income tax from the said casual workers in Fleet Street, according to the law.

 

In support of their case, the self-employed and small shopkeepers sought to get the Board of Inland Revenue to disclose their papers relating to this amnesty: especially as to the negotiations with the unions and the employers. This has been adjourned: because of this preliminary objection: the revenue object to these proceedings being taken against them. They say that no one has any standing to come to the courts to complain of their actions. No one at all. Not an ordinary citizen. Not even a taxpayer who is aggrieved by them. Not even the 50,000 of them in this federation. May be the Attorney-General might do so, but he has never been known to proceed against a government department. The Divisional Court has upheld the contention of the revenue. The self-employed and small shopkeepers, as taxpayers, appeal to this court. [*420]

 

This case thus raises a problem which was described in the New Law Journal (vol. 130, p. 181) for February 21, 1980, as “the major problem in relation to judicial review of tax concessions concerns locus standi. Who can challenge the legality of a tax concession?”

 

At first sight the House of Lords in Gouriet v. Union of Post Office Workers [1978] A.C. 435 seem to have slammed the door against ordinary citizens coming to the court - except one who has suffered a particular damage. But that decision was concerned only with relator actions. Lord Wilberforce pointed out that it did not apply to the prerogative orders such as mandamus or certiorari. He said at p. 482 that “these are often applied for by individuals and the courts have allowed them liberal access under a generous conception of locus standi.” It is these remedies that we are here concerned with. They apply only to public authorities, not to trade unions: so they were not available in Gouriet’s case.

 

Now as to these prerogative remedies, it was thought in the 19th century that the applicant must show that he had a “specific legal right” to ask for the interference of the court. So said Tapping on Mandamus (1848), pp. 27-28, followed by Wright J. in Reg. v. Lewisham Union Guardians [1897] 1 Q.B. 498, 500. That was a deplorable decision. The guardians of the poor for Lewisham were obliged by statute to see that everyone was vaccinated against smallpox. They failed in their duty. owing to their default a great number of people were not vaccinated. That put everyone else at risk. Yet no one had any locus standi to complain. Not even the local authorities. Nobody was allowed to come to the court - so as to compel the performance of the duty. Similarly, in Reg. v. Customs and Excise Commissioners, Ex parte Cook [1970] 1 W.L.R. 450. Under a statute, bookmakers were bound to pay for their licence by two half-yearly instalments. Yet a minister, by a private concession, allowed some of them to pay monthly. It was held that nobody was allowed to come to the court so as to question the validity of the concession. Not even rival bookmakers could complain. Lord Parker C.J. felt at p. 455 that the result was alarming in “that the word of the minister is outweighing the law of the land.” Yet he felt he must follow the Lewisham case [1897] 1 Q.B. 498. The time has come when we must declare that those cases were wrongly decided. They meant that public authorities could break the law with impunity: for the simple reason that no one had any locus standi. It is now clear that all the talk about “specific legal right” was a mistake. There is only one requirement and that is simply that the applicant must have a “sufficient interest in the matter to which the application relates.” That was the test recommended in 1975 by the Law Commission in their “Report on Remedies in Administrative Law” (Law.Com. No. 73, Cmnd. 6407, para. 48) and adopted in R.S.C., Ord. 53, r. 3 (5). The Rule Committee must have thought that it represented the existing law: else the rule would have been ultra vires. I also think it represents the existing law.

 

This leaves open the question, of course, what is a “sufficient interest”? To that I answer, as many statutes have done in similar situations: Any “person aggrieved” - by the failure of a public authority [*421] to do its duty - has a sufficient interest. He can come to the court and apply for a mandamus to compel it. At one time those words, “person aggrieved,” were given a restrictive interpretation, confining it to a person who had a specific legal grievance: see Ex parte Sidebotham (1880) 14 Ch.D. 458, 465. But that interpretation was overthrown in Attorney-General of the Gambia v. N’Jie [1961] A.C. 617, 634, where I said:

 

“The words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance”

 

because something has been done or omitted to be done contrary to what the law requires.

 

The most instructive cases on this topic are those in which a ratepayer qualifies as a “person aggrieved.” He has a sufficient standing to complain of an error in the valuation list whereby some other person has been rated too little. The complainant may be only one ratepayer out of the 21 million people in the area of Greater London. He may complain that a valuation is too little on the other side of London 20 miles away. He is a “person aggrieved” even though he is not affected in his pocket in the slightest. Lord Wilberforce put it well when he said in Arsenal Football Club Ltd. v. Ende [1979] A.C. 1, 17:

 

“Uniformity and fairness have always been proclaimed, and judicially approved, as standards by which to judge the validity of rates. Indeed I believe that many men feel a more acute sense of grievance if they think they are being treated unfairly in relation to their fellow ratepayers than they do about the actual payments they have to make. To produce a sense of justice is an important objective of taxation policy.”

 

The locus standi of a ratepayer is not confined, however, to errors in the valuation list or in rating matters. He has a standing to complain whenever his local authority do something which they ought not to do - or omit to do something which they ought to do. Notable examples are when the Birmingham Corporation granted free travel on their buses to old people: see Prescott v. Birmingham Corporation [1955] Ch. 210; and when the Hereford Corporation failed to put a contract out to tender as they ought to have done (Reg. v. Hereford Corporation, Ex parte Harrower [1970] 1 W.L.R. 1424) and when the Greater London Council licensed the showing of pornographic films (Reg. v. Greater London Council, Ex parte Blackburn [1976] 1 W.L.R. 550).

 

Mr. Medd submitted to us that ratepayers were a race apart from other men. The courts for centuries had listened to their grievances whereas they would refuse other people. I see no justification for this submission. In this court in Blackburn’s case [1976] 1 W.L.R. 550 the majority of the court gave relief, not only to Mrs. Blackburn as a ratepayer but also to Mr. Blackburn as a resident and citizen of London. He was offended by the display of pornographic films. Thus bearing out [*422] Lord Wilberforce’s dictum in Gouriet’s case [1978] A.C. 435, 483: “A right is none the less a right, or a wrong any the less a wrong, because millions of people have a similar right or may suffer a similar wrong.”

 

On this review of the authorities I would endorse the general principle stated by Professor H. W. R. Wade Q.C. in his Administrative Law, 4th ed. (1977), p. 608. He says:

 

“It [the law] should recognise that public authorities should be compellable to perform their duties, as a matter of public interest, at the instance of any person genuinely concerned; and in suitable cases, subject always to discretion, the court should be able to award the remedy on the application of a public-spirited citizen who has no other interest than a regard for the due observance of the law.”=

 

Those words were written in relation to mandamus but they apply also to the other prerogative orders of certiorari or prohibition. They apply also nowadays to declarations and injunctions - where these are sought in situations which are comparable to the prerogative orders, that is, against public authorities who are acting unlawfully. This was recommended by the Law Commission in their report, No. 73. This recommendation is carried into effect by R.S.C., Ord. 53, r. 1 (2). Although neither mandamus nor an injunction will lie against the Crown, a declaration can be made and will be equally effective.

 

Was I in error?

 

In the court below, Griffiths J. took the principle I stated in Attorney-General ex rel. McWhirter v. Independent Broadcasting Authority [1973] Q.B. 629, 645, and said that it had been specifically disapproved by Lord Wilberforce in Gouriet’s case [1978] A.C. 435, 483. But I would point out that the disapproval was only in regard to relator proceedings. His disapproval did not apply to the proceedings by way of the prerogative orders. To these I would say as I said in Reg. v. Greater London Council, Ex parte Blackburn [1976] 1 W.L.R. 550, 559:

 

“I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty’s subjects, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate.”

 

Applied to this case

 

So I come back to the question: have these self-employed and small shopkeepers, through their federation, a “sufficient interest” to complain of this amnesty? Have they a genuine grievance? Are they genuinely concerned? Or are they mere busybodies? This matter is to be decided objectively. A “busybody” is one who meddles officiously in other people’s affairs. He convinces himself - subjectively - that there is cause for grievance when there is none. He should be refused. But a man [*423] who is genuinely concerned can point - objectively - to something that has gone wrong and should be put right. He should be heard.

 

Let me put the grievance of these self-employed and small shopkeepers. They base themselves on their own position as 50,000 taxpayers out of 50 million people. (That is equivalent, they say, to a ratepayer out of 21 million people). They say that these 6,000 “Fleet Street casuals” have been given preferential treatment such as would not be accorded to any other taxpayers. They give examples of the way in which they themselves and other taxpayers are treated. If any of them should trip and fall, the taxmen come down on them like a ton of bricks. No amnesty for them. When found out, they are made to pay to the uttermost farthing. Why should not these “Fleet Street casuals” be made to pay up?

 

If their grievance stopped there, I should have doubted whether they had a “sufficient interest.” It seems to me that the revenue authorities should be allowed to negotiate with taxpayers - and come to a settlement with them - without being harassed by complaints from members of the public generally. It is most undesirable that every Tom, Dick or Harry should be able to call the revenue to account for their stewardship - or to pry into their neighbour’s tax returns.

 

But the grievances of these self-employed and small shopkeepers does not stop there. They draw attention to

 

“the sharp contrast between the attitude taken by the revenue when they became aware of tax evasion on a large scale by the Fleet Street casuals and the attitude adopted by them in other cases when they suspect that the full amount of tax for past years had not been paid.”

 

They refer to the passages which I have read from Mr. Hoadley’s affidavit in which he points to “the real possibility of industrial action” and “a large number of hostile workers.” Drawing on these passages they suggest that the amnesty was forced upon the revenue authorities by threats of industrial action. If these unions were to disclose the names of the “casuals” to the revenue authorities, the men would go on strike. So also if the revenue authorities were to seek to enforce payment of the back taxes - the men would go on strike. That would hit the employers very hard. So much so that the employers implored the revenue authorities not to insist on payment of the back taxes. Under the weight of these pressures, the revenue authorities agreed to grant an amnesty.

 

In these circumstances, had the revenue authorities any power to grant such an amnesty? The Shorter Oxford Dictionary, 3rd ed. (1967), defines an “amnesty” as “a general overlooking or pardon of past offences, by the ruling authority.” I doubt whether it was within the power of the Inland Revenue to grant such an amnesty. By the common law an agreement not to prosecute an offender is itself an unlawful agreement. It is unenforceable and not binding on the parties to it: see Williams v. Bayley (1866) L.R. 1 H.L. 200 and Jones v. Merioneth Permanent Benefit Building Society [1892] 1 Ch. 173. So also it may be unlawful for the revenue authorities to grant an amnesty to these offenders or agree not to collect their taxes. [*424]

 

Now I have to observe that for the purposes of this preliminary point we must assume that the grant of the amnesty was unlawful. Mr. Medd invited us to proceed on the assumption that the revenue acted unlawfully because they have no dispensing power. The only question, on that assumption, is whether these self-employed and small shopkeepers can complain of such unlawfulness. Have they a “genuine grievance”? They think that the “Fleet Street casuals” are being given preferential treatment - over and above that afforded to other taxpayers - because they have available the weapon of “industrial action.” These self-employed and small shopkeepers have no “industrial action” open to them. They have no industrial muscle. They have no one against whom to strike.

 

One thing I must say. If these self-employed and small shopkeepers cannot complain, there is no one else who can. The unlawful conduct of the revenue (assuming it is unlawful) will go without remedy. The revenue authorities will have obtained a dispensing power without it being authorised by Parliament. And that, by a defect in our procedure - because no one has a locus standi to complain.

 

Rather than grant the revenue such a dispensing power, I would allow the whole body of taxpayers a locus standi to complain. Assuredly the Attorney-General will not complain on their behalf. He never does complain against a government department. And as the whole body is too cumbersome, I would allow the body of taxpayers (50,000 of them) represented by the federation to complain. They have a genuine grievance which finds a parallel in the grievance of the beneficiaries in Vestey v. Inland Revenue Commissioners [1979] Ch. 177, 197-198, where Walton J. said:

 

“I conceive it to be in the national interest, in the interest not only of all individual taxpayers - which includes most of the nation - but also in the interests of the revenue authorities themselves, that the tax system should be fair... One should be taxed by law, and not be untaxed by concession... A tax system which enshrines obvious injustices is brought into disrepute with all taxpayers accordingly, whereas one in which injustices, when discovered, are put right (and with retrospective effect when necessary) will command respect and support.”

 

Those eloquent words were quoted and stressed by Lord Wilberforce in 1979 when the case reached the House of Lords [1979] 3 W.L.R. 915, 926, 931. Adapting them here I would say that if the revenue authorities are found to be exercising a dispensing power - not given to them by Parliament - then it is open to a representative body of taxpayers - representative of the whole - to come to the courts to complain of it: and to seek a declaration as to the rights or wrongs of it.

 

I must confess that, if it were not for the concession made by Mr. Medd I should have been disposed to say that, as a matter of discretion, the application should be refused. But once the point emerges - as it does - whether the revenue authorities have a dispensing power, then it is so important that in the words of Professor Wade in Administrative Law, 4th ed., p. 608: [*425]

 

“The court should be able to award the remedy on the application of a public-spirited citizen who has no other interest than a regard for the due observance of the law.”

 

My conclusion is therefore that these self-employed and small shopkeepers are not mere busybodies. They are not spending their funds on this litigation out of spite or malice. They have a genuine grievance because, as they see it, the “Fleet Street casuals” are getting out of paying their back taxes: because of their “industrial muscle.” They feel that this is unfair and should be put right. They ask the courts to consider their grievance and say whether it is well-founded or not. I think they should be heard. They should not be brushed off as having no sufficient interest. I would allow the appeal accordingly.

 

LAWTON L.J. Many members of the National Federation of Self-Employed and Small Businesses have an acute sense of grievance over the way the Inland Revenue Commissioners behave towards their members whose tax returns do not appear to be in order compared with the way they have behaved towards some 6,000 workers in the printing industry who have not paid for many years tax on their casual earnings; and some of them seem to have engaged in the fraudulent evasion of tax. The full rigour of the law is usually applied to the self-employed and the small businessmen who are suspected of non-disclosure and almost always to those suspected of fraud, yet the commissioners decided to waive most of the arrears of unpaid tax owed by the printing workers. The commissioners are suspected by the federation of having given way to trade union pressure and threats of industrial action. The commissioners, through one of their senior officers, a Mr. Hoadley, have justified what was done, partly by relying on regulation 50 of the Income Tax (Employments) Regulations 1973 (S.I. 1973 No. 334) but primarily on the pragmatic ground that attempting to collect tax from hostile workers would have been a waste of time and energy as little tax would have been collected and any attempt to get in arrears would have made tax collection from these workers more difficult in the future. They have denied giving way under trade union pressure. If the decision of the commissioners is ever looked into, it may be found that they were entitled to do what they did and that what they did was both sensible and lawful. The truth, however, is not likely to be revealed without disclosure of all relevant documents and the cross-examination of those who took part in the negotiation of this remarkable arrangement. The sole problem for consideration in this appeal, however, is whether the federation can get the courts to look into what the commissioners did and adjudge whether they acted lawfully. They submit they can, the commissioners submit they cannot.

 

In my opinion the law as to who can ask the courts to set in motion remedies for public grievances is confused and in need of clarification. In Reg. v. Lewisham Union Guardians [1897] 1 Q.B. 498 Wright J. who was regarded as being outstandingly learned about what were then known as prerogative writs, said:

 

“Certainly, so long as I have had anything to do with applications for a mandamus I have always understood that the applicant, in [*426] order to entitle himself to a mandamus, must first of all shew that he has a legal specific right to ask for the interference of the court... This court would be far exceeding its proper functions if it were to assume jurisdiction to enforce the performance by public bodies of all their statutory duties without requiring clear evidence that the person who sought its interference had a legal right to insist upon such performance.”

 

During my professional lifetime until 1977 applicants for prerogative orders had to satisfy the Divisional Court that they were aggrieved persons, that is to say that they had suffered some damage or inconvenience over and above that suffered by other citizens. Nowadays the former insistence on an applicant having “a legal specific right” or being an aggrieved person in the sense I have stated as a necessary qualification for making an application for an order of mandamus is no longer the necessary qualification. R.S.C., Ord. 53, r. 3 (5), provides that an applicant must have “a sufficient interest in the matter to which the application relates.” What do these words mean? In the context of R.S.C., Ord. 53 they connote a concern in respect of a right or title or the performance of a public duty. Concern alone is not enough. All right minded citizens have a concern for the performance of public duties and other people’s rights and titles; but the concern must be of such intensity that it amounts to a “sufficient interest.” In my judgment, for an interest to come within R.S.C., Ord. 53, r. 3 (5), there must be a connection with the subject matter of the application greater than that which citizens generally may have. The present day qualification which an applicant for judicial review (including a mandamus) must have is clearly less restrictive than “a legal specific right” but must be more than a sense of grievance which any citizen might reasonably have against a government department or any statutory body performing public duties.

 

Ratepayers in an adjoining rating area (see Arsenal Football Club Ltd. v. Ende [1979] A.C. 1) have been adjudged to have a sufficient interest; and a resident in the London urban area was adjudged to have been aggrieved by the way that the Greater London Council performed their statutory duties under the Cinematographic Acts 1909-1952 sufficiently to justify an application for mandamus: see Reg. v. Greater London Council Ex parte Blackburn [1976] 1 W.L.R. 550. If millions of residents and ratepayers have a sufficient interest to justify an application for mandamus, why should not millions of taxpayers have such an interest too? Herein lies the strength of Mr. Harvey’s submission on behalf of the federation. He pointed out that the commissioners’ own reports show that there are nearly as many ratepayers in Great Britain as there are income-taxpayers.

 

There is, however, a difference between the position of a taxpayer and that of a ratepayer. A taxpayer is assessed for income tax on what he himself earns or enjoys as income. Save that the statutory rules for assessment are supposed to be the same for everybody, the assessment on him is made without reference to anyone else’s income and is confidential between him and the Inland Revenue. A ratepayer has an affinity with other ratepayers in the same rating area. The rating authority has to raise the rate and prepare a valuation list showing the properties and [*427] persons rated. Every ratepayer has an interest in what every other ratepayer in the rating area pays. If they are rated for less than they should be, he may have to pay more. As Lord Wilberforce pointed out in Arsenal Football Club Ltd. v. Ende [1979] A.C. 1, 15, Parliament ever since 1743 has made provision for appeals by ratepayers aggrieved by “any valuation list” or “the incorrectness or unfairness of any matter in the valuation list.” Income-tax payers have no similar interest in what others pay. If individuals, or groups of individuals, having genuine grievances were allowed to apply for orders of mandamus against the commissioners on the grounds that they were being dealt with unfairly as compared with other named taxpayers, investigation of the complaint would be impossible without breach of confidentiality.

 

Further the commissioners for a long time, as is well known, have granted individuals and even groups of taxpayers concessions for which there seem to be no statutory authority. They have come to be known as extra-statutory concessions. Some of these concessions have been the subject matter of critical judicial comment: see the judgment of Walton J. in Vestey v. Inland Revenue Commissioners (No. 2) [1979] Ch. 198, 203. Others are generally regarded as sensible. The commissioners have made no secret of these extra-statutory concessions. All engaged in advising upon tax law know about them. Parliament must know too because some are referred to in the annual reports which the commissioners make to Parliament. A striking example is provided by the concessions which for some years have been made to contemplative orders of nuns who cannot, because of the decision of the House of Lords in Gilmour v. Coats [1949] A.C. 426, be regarded as charities. These particular concessions are referred to in Halsbury’s Laws of England, 3rd ed., vol. 20 (1957), para. 1185, and were mentioned in the commissioners’ ninety-third (1949-50 Cmnd. 8103) and ninety-fifth (1951-52 Cmnd. 8726) reports. Parliament, despite its tight control over tax raising, has never tried to stop the commissioners making extra-statutory concessions. If the applicants are right, it is odd that what Parliament has not tried to do, any taxpayer with a genuine concern for the proper and lawful administration of the Inland Revenue can ask the courts to do; but he is never likely to complain about extra-statutory concessions of which he has had the benefit but only about those which others have had. In my judgment the courts should be slow to listen to the barking of the dog in the manger.

 

It is, I think, pertinent to remember that Parliament has given the courts only a limited jurisdiction over taxation. The taxpayer who is aggrieved about his assessment cannot come direct to the courts but only by way of appeal on a case stated on points of law by general or special commissioners. If he is aggrieved about matters other than points of law he can, through his member of Parliament, ask the Parliamentary Commissioner to look into his case. If he is troubled by the way in which the commissioners are performing their duties, he can bring his concern to the attention of his member of Parliament or to the public generally through the press. All this goes, in my judgment, to show that, in general, taxpayers having grievances about the way the [*428] commissioners perform their duties cannot use the courts through an order of mandamus to put right what is wrong. The courts may be the public’s watchdogs over government departments and public bodies and officers; but, as the House of Lords has emphasised in recent judgments, they cannot themselves extend their jurisdiction.

 

There may, however, as Mr. Medd accepted in argument, be cases in which a taxpayer has difficulties, special to himself, because of the way in which the commissioners perform their duties. Extra-statutory concessions granted to the employees of one business might, for example, deprive a rival business of labour if the same concessions were not granted to its employees. I can see no such special difficulties arising out of the facts of this case for the members of the federation. They are complaining about the seeming unfairness to themselves and to taxpayers generally of the commissioners’ decision relating to the printing workers. They are not saying, and cannot say, that they are in any worse plight than the general body of taxpayers. Ever since the Middle Ages general complaints about the burden of taxation and the misconduct of tax gatherers have been put before the High Court of Parliament, as it used to be called. The royal courts were primarily concerned with the complaints of individuals whose rights had been infringed or who had suffered damage by the abuse or misuse of power.

 

I have not overlooked the development of the law relating to prerogative orders which has taken place during the past two decades, particularly that which is evidenced by Reg. v. Greater London County Council, Ex parte Blackburn [1976] 1 W.L.R. 550 which is binding upon me and to which I referred earlier in this judgment. It would be presumptuous of me to try to justify that decision. I distinguish it from the present case on the ground that the commissioners are concerned to establish a relationship with individuals. Unlike a local authority they have no duty to control the environment in which people live. I appreciate that the distinction is a fine one. The courts have come a long way since 1960 in allowing grievances against persons performing public duties and exercising statutory powers to be given a hearing in the courts. The common law was alive to the mischief which was likely to arise if public officers could be sued by anyone with a grievance. Appreciation of this likely mischief resulted in the development of the restrictions imposed by the relator procedure. The restrictions of this procedure do not apply to prerogative orders (see the speech of Lord Wilberforce in Gouriet v. Union of Post Office Workers [1978] A.C. 435, 482, and the submission in that case made by counsel for the Attorney-General at p. 446); but there still remains the restriction of “a sufficient interest.” A line has to be drawn somewhere. If this application is put on the side of the line where the federation want it to be, anyone’s genuine concern for good and lawful government, whether at a national or local level, would be a sufficient interest to justify a judicial review. This would entangle the courts with administration in a way which would be inconvenient and unconstitutional. Such is the flexibility of our unwritten constitution that the lack of a remedy in the courts does not mean that justice may not be done elsewhere. [*429]

 

I would dismiss the appeal on the ground that the applicants have not shown that they have a sufficient interest in the matter to which the application relates.

 

ACKNER L.J. The federation’s name speaks for itself. Their membership is currently in the region of 50,000 grouped into 350 branches and 38 regions covering the whole of the United Kingdom. Not all the federation’s members are self-employed persons paying income tax under Schedule D. Many are directors of their own companies taxable under P.A.Y.E. The membership is derived from all the various trades in the small business sector of the economy and the professions.

 

The federation are seeking (1) a declaration that the Board of Inland Revenue acted unlawfully in granting an amnesty to casual workers in Fleet Street. (2) An order of mandamus directed to the board to assess and collect income tax from the casual workers in Fleet Street according to law.

 

The short ground for the application is that the Board of Inland Revenue exceeded its powers and therefore acted unlawfully in granting this amnesty. The application is an application for “judicial review” and is made under the relatively new R.S.C., Ord. 53. Under R.S.C., Ord. 53, r. 1 (2), an application for a declaration may be made by way of an application for judicial review and on such an application the court may grant the declaration claimed

 

“if it considers that having regard to (a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus... (b) the nature of the persons and bodies against whom the relief may be granted by way of such an order, and (c) all the circumstances of the case, it would be just and convenient for the declaration to or injunction be granted on an application for judicial review.”

 

R.S.C., Ord. 53, r. 3 (5) provides:

 

“The court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”

 

As the notes in The Supreme Court Practice (1979) p. 824 correctly state, this new order was introduced to create

 

“a uniform, flexible and comprehensive code of procedure for the exercise by the High Court of its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals or other bodies of persons charged with the performance of public acts and duties... It eliminates procedural technicalities relating to the machinery of administrative law, mainly by removing procedural differences between the remedies which an applicant was formerly required to select as the most appropriate to his case.”

 

Its practical effect, so far as this application is concerned, is to enable the relief in the form of a declaration to be coupled with that of an order of mandamus. [*430]

 

There is only one issue which we have to decide, a preliminary issue, namely, whether the federation has the necessary locus standi to be heard to make this application. We are thus not at this stage concerned with the merits of the allegation that the Board of Inland Revenue had no power to grant a tax amnesty to casual workers in Fleet Street, who had for years paid no tax on the remuneration they received from casual work. We must assume for the purpose of this preliminary issue that the revenue had no such power. Thus the sole question is whether the federation, to quote the words referred to in R.S.C., Ord. 53, r. 3 (5), has “a sufficient interest in the matter to which the application relates.”

 

The issue between the parties is not only a short, but it is a narrow one. It used to be said that the necessary interest to justify an order for mandamus had to be dealt with on a very strict basis and the observations of Wright J. in Reg. v. Lewisham Union Guardians [1897] 1 Q.B. 498, 500 were frequently quoted:

 

“Certainly, so long as I have had anything to do with applications for a mandamus I have always understood that the applicant, in order to entitle himself to a mandamus, must first of all shew that he has a legal specific right to ask for the interference of the court.”

 

Mr. Medd for the revenue accepts, having regard to subsequent decisions, in particular of this court, that such a test is now far too severe. He drew our attention to Rex v. Manchester Corporation [1911] 1 K.B. 560, where Lord Alverstone C.J. referred to the apparent inconsistency of Reg. v. Cotham [1898] 1 Q.B. 802 where a very slight interest was held to be sufficient to allow the application, with the decision in the Lewisham case [1897] 1 Q.B. 498. He contends that although the test is now less restrictive, nevertheless, in order for an applicant to have “a sufficient interest” he must have some genuine interest greater than that of the public at large. Mr. Harvey for the federation contends, adopting a formulation suggested in the course of his submissions, that all he has to show is that his clients can reasonably assert that they have a genuine grievance.

 

Let me, by an example, demonstrate how fine can be the difference between the rival contentions. Mr. Medd would accept that if the applicants in this case were competitors for labour with Fleet Street, and because of the indulgence which the revenue was prepared to show to casual workers in Fleet Street, found it impossible to recruit adequate labour into their undertakings, because no such comparable tax indulgence was available to their casual employees, they would have “a sufficient interest.” They would have some genuine interest greater than that of the public at large. The federation, however, are not in that position, and accordingly he contends that they have no locus standi.

 

If narrow distinctions of this kind are to determine whether a private citizen should be entitled to secure the enforcement of a statutory duty by a public authority who might otherwise violate it with impunity, then the following contention seems equally permissible. The federation are not in the same position as “the public at large,” because the members of the federation are all taxpayers and the public at large are not. I [*431] would however be reluctant to decide a question of this importance on such fine distinctions if a common sense and workable formula can be justified.

 

The position of a ratepayer seems now well-established. He does not have to show some interest greater than other ratepayers in the area administered by the local authority whose failure properly to perform their statutory duty he is attacking. In Reg. v. Paddington Valuation Officer, Ex parte Peachey Corporation Ltd. [1966] 1 Q.B. 380 the complaint was that the valuation officer had failed to carry out his statutory duties in preparing the list because he failed to take into account the open market rents currently paid in finding the gross “value” as defined in section 68 of the Rating and Valuation Act 1925. In dealing with the question as to whether Peachey Property had a sufficient interest, or, as it was there put, having regard to the terms of the statute, whether they were persons aggrieved so as to be entitled to ask for certiorari or mandamus, Lord Denning M.R. said, at pp. 400-401:

 

“Strange as it may seem, owing to the way expenses are borne in the County of London, the rate poundage of Paddington would remain the same even if the assessments of the flats in converted houses were greatly increased... But I do not think grievances are to be measured in pounds, shillings and pence. If a ratepayer or other person finds his name included in a valuation list which is invalid, he is entitled to come to the court and apply to have it quashed.”

 

In Reg. v. Hereford Corporation, Ex parte Harrower [1970] 1 W.L.R. 1424, the Divisional Court granted an order for mandamus in the following circumstances. The applicants were electrical contractors on the corporation’s approved list. They were also ratepayers. They claimed that the procedure adopted by the local authority contravened their own standing order which required them to invite tenders and to give ten days’ notice before entering into a contract for the installation of central heating in certain of their flats, and that their failure to do so involved their acting in breach of section 266 (2) of the Local Government Act 1933. Lord Parker C.J. in giving the judgment of the court said at p. 1428 that the mere fact that the applicants were electrical contractors did not of itself give them sufficient right, but that if they were ratepayers that would be sufficient. He said his view was reinforced by the Irish case of Reg. (McKee) v. Belfast Corporation [1954] N.I. 122 which was another case where there was an application for a mandamus to comply with standing orders. His decision in Reg. v. Customs and Excise Commissioners, Ex parte Cooke [1970] 1 W.L.R. 450, is clearly justifiable on the basis that the court’s discretion would not have to be exercised in favour of the applicant in such a case, but it is difficult to follow on the basis that the applicant had no interest over and above the interests of the community as a whole. The respondents’ alleged illegal acts were favouring his business competitors.

 

Perhaps the strongest of all the cases in favour of the ratepayer is Reg. v. Greater London Council, Ex parte Blackburn [1976] 1 W.L.R. [*432] 550, where Mr. Blackburn and his wife applied for an order of prohibition to issue against the council to prevent them, inter alia, exceeding their censorship powers by allowing pornographic films to be shown openly in cinemas in London. When dealing with issue of locus standi, Lord Denning M.R. said, at pp. 558-559:

 

“Who then can bring proceedings when a public authority is guilty of a misuse of power? Mr. Blackburn is a citizen of London. His wife is a ratepayer. He has children who may be harmed by the exhibition of pornographic films. If he has no sufficient interest, no other citizen has. I think he comes within the principle which I stated in McWhirter’s case [1973] Q.B. 629, 649, which I would recast today so as to read: ‘I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way that offends or injures thousands of Her Majesty’s subjects, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate’”.

 

Stephenson L.J. said at p. 564 that he saw no reason why the applicants should not apply for prohibition: “They live in the council’s jurisdiction and have locus standi, Mrs. Blackburn as a ratepayer.” Bridge L.J. said at p. 567 that he agreed that Mrs. Blackburn had “sufficient locus standi, as a ratepayer.”

 

That case is clearly authority for the proposition that not only Mrs. Blackburn, qua ratepayer, but also Mr. Blackburn as a member of the public living in the area where the films were shown had a sufficient interest. Of course, if Mr. Blackburn had lived, for example in Penzance or Newcastle, it might well be contended that he could not reasonably assert that he had a genuine grievance, because he was so remote from where the alleged breach of statutory duty was said to have occurred.

 

Mr. Medd contends that the part of the judgment which I have set out above, in which Lord Denning M.R. recasts the principle which he stated in Attorney-General ex rel. McWhirter v. Independent Broadcasting Authority [1973] Q.B. 629, was disapproved by Lord Wilberforce in his speech in Gouriet v. Union of Post Office Workers [1978] A.C. 435, 483. This is undoubtedly correct in so far as Lord Denning M.R.’s observations were directed to relator proceedings. Gouriet’s case was of course not concerned with prerogative orders, as to which Lord Wilberforce made this passing observation, at 482H:

 

“Attention was drawn to the procedure of applying for prerogative writs. These are often applied for by individuals and the courts have allowed them liberal access under a generous conception of locus standi.”

 

The last case on the position of a ratepayer is that of Arsenal Football Club Ltd. v. Ende [1979] A.C. 1. In that case, the rateable value of the football club stadium in the London Borough of Islington was shown in the valuation list as 9,250. A Mr. Ende, who had all the rights and [*433] liabilities of a ratepayer and who lived about a half a mile away from the stadium in the same precepting area claimed to be a “person aggrieved” under section 69 (1) of the General Rate Act 1967 by the value described in the list and proposed that it should be altered to 60,000. Arsenal contended that to show that a person is “aggrieved” he must prove that he is demonstrably affected in his pocket, rights or interests by the under-valuation of the interest and, as a revaluation even on the scale suggested would not have had the slightest effect on the amount which Mr. Ende, as a ratepayer, would have had to pay, he could not be said to be aggrieved by the undervaluation. Lord Wilberforce in his speech, said at p. 17:

 

“On principle, and on the history of this matter, there is no reason, in the absence of express limiting words, for confining grievances to demonstrable injurious effects. Uniformity and fairness have always been proclaimed, and judicially approved, as standards by which to judge the validity of rates. Indeed I believe that many men feel a more acute sense of grievance if they think they are being treated unfairly in relation to their fellow ratepayers than they do about the actual payments they have to make. To produce a sense of justice is an important objective of taxation policy.”

 

I cannot see any logical distinction between the position of a ratepayer who can reasonably assert that he has a genuine grievance if there is unfairness between his assessment and that of others in the same rating area, whether or not his pocket is affected, and the position of a taxpayer who can reasonably assert that his sense of justice or fairness is offended by the unlawful act by the revenue in allowing his fellow taxpayers not to pay their tax. They have each in common the ability reasonably to assert a genuine grievance and that, it seems to me, is “a sufficient interest” to give them each a locus standi. In neither case can they be said to be mere busybodies, seeking to interfere with matters that do not concern them. To Mr. Medd’s rhetorical question - where do you draw the line? - I would answer, where the assertion of a genuine grievance cannot be said to be a reasonable assertion, i.e., it cannot be justified on reasonable grounds. Since, for the purpose of deciding this preliminary issue, it has been accepted that we should assume that the revenue acted unlawfully because they have no dispensing power, then the body of taxpayers represented by the federation can reasonably assert a genuine grievance.

 

I would therefore hold that the federation has a locus standi and should therefore be entitled to have the merits of this dispute decided. I, too, would allow the appeal.

 

Appeal allowed with costs.

 

Leave to appeal.