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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Inland Revenue Commissioners, ex p. National Federation of Self Employed and Small Businesses Ltd [1981] UKHL 2 (09 April 1981)
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Cite as: [1981] UKHL 2

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JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/241

    Die Jovis 9° Aprilis 1981

    Upon Report from the Appellate Committee to whom
    was referred the Cause Commissioners of Inland
    Revenue against National Federation of Self-Employed
    and Small Businesses Limited, That the Committee had
    heard Counsel as well on Tuesday the 10th as on
    Wednesday the 11th, Thursday the 12th and Monday
    the 16th days of February last upon the Petition and
    Appeal of the Commissioners of Inland Revenue of
    Somerset House, The Strand, London WC2 praying
    that the matter of the Order set forth in the Schedule
    thereto, namely an Order of Her Majesty's Court of
    Appeal of the 27th day of February 1980 might be
    reviewed before Her Majesty the Queen in Her Court of
    Parliament and that the said Order might be reversed,
    varied or altered or that the Petitioners might have such
    other relief in the premises as to Her Majesty the
    Queen in Her Court of Parliament might seem meet;
    as also upon the Case of the National Federation of
    Self-Employed and Small Businesses Limited lodged in
    answer to the said Appeal; and due consideration had
    this day of what was offered on either side in this
    Cause.

    It is Ordered and Adjudged, by the Lords Spiritual
    and Temporal in the Court of Parliament of Her
    Majesty the Queen assembled, That the said Order of
    Her Majesty's Court of Appeal of the 27th day of
    February 1980 complained of in the said Appeal be,
    and the same is hereby Reversed and that the Order
    of the Divisional Court of the Queen's Bench Division
    of Her Majesty's High Court of Justice of the 22nd
    day of November 1979 be, and the same is hereby,
    Restored: and it is further Ordered, That the
    Respondents do pay or cause to be paid to the said
    Appellants the Costs incurred by them in the Courts
    below and also the Costs incurred by them in respect
    of the said Appeal to this House, the amount of such
    last-mentioned Costs to be certified by the Clerk of the
    Parliaments if not agreed between the parties; And it is
    also further Ordered, That the Cause be, and the same is
    hereby, remitted back to the Queen's Bench Division of
    the High Court of Justice to do therein as shall be just
    and consistent with this Judgment.


    HOUSE OF LORDS

    COMMISSIONERS OF INLAND REVENUE (APPELLANTS)

    v.

    NATIONAL FEDERATION OF SELF-EMPLOYED AND
    SMALL BUSINESSES LIMITED (RESPONDENTS)

    Lord Wilberforce
    Lord Diplock
    Lord Fraser of Tullybelton
    Lord Scarman
    Lord Roskill


    Lord Wilberforce

    MY LORDS,

    The respondent Federation, whose name sufficiently describes its nature,
    is asking for an order upon the Commissioners of Inland Revenue to assess and
    collect arrears of income said to be due by a number of people compendiously
    described as "Fleet Street casuals". These are workers in the printing industry
    who, under a practice sanctioned apparently by their unions and their
    employers, have for some years been engaged in a process of depriving the
    Inland Revenue of tax due in respect of their casual earnings. This they appear
    to have done by filling in false or imaginary names on the call slips presented on
    collecting their pay. The sums involved were very considerable. The Inland
    Revenue, having become aware of this, made an arrangement, which I explain
    in more detail later, under which these workers are to register in respect of their
    casual employment, so that in the future tax can be collected in the normal way.
    Further, arrears of tax from 1977-8 are to be paid and current investigations
    are to proceed, but investigations as to tax lost in earlier years are not to be
    made. This arrangement, described inaccurately as an "amnesty", the
    Federation wishes to attack. It asserts that the Revenue acted unlawfully in not
    pursuing the claim for the full amount of tax due. It claims that the Board
    exceeded its powers in granting the " amnesty"; alternatively that if it had power
    to grant it, reasons should be given and that those given cannot be sustained;
    that the Board took into account matters to which it was not entitled to have
    regard; that the Board ought to act fairly as between taxpayers and has not done
    so; and that the Board is under a duty to see that Income Tax is duly assessed,
    charged, and collected.

    The proceedings have been brought by the procedure now called "judicial
    review". There are two claims, the first for a declaration that the Board of
    Inland Revenue "acted unlawfully" in granting an amnesty to the casual
    workers; the second, for an order of mandamus to assess and collect income tax
    from the casual workers according to the law. These two claims rest, for present
    purposes, upon the same basis, since a declaration is merely an alternative kind
    of relief which can only be given if, apart from convenience, the case would have
    been one for mandamus.

    In the Order which introduced the simplified remedies by way of judicial
    review (RS.C. 0.53, dating from 1977), it is laid down (r.3(5)) that:

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

    The issue which comes before us is presented as one related solely to the
    question whether the Federation has the "sufficient interest" required.

    In the Divisional Court, when the motion for judicial review came before it,
    the point as to locus standi was treated as a preliminary point "Before we
    embark on the case itself, said Lord Widgery C. J., "we have to decide whether
    "the Federation has power to bring it at all". After hearing argument, the court
    decided that it had not. The matter went to the Court of Appeal, and again
    argument was concentrated on the preliminary point, though it, and the
    judgments, did range over the merits. The Court of Appeal by majority reversed
    the Divisional Court and made a declaration that "the applicants have a
    "sufficient interest to apply for Judicial Review". On final appeal to this House,
    the two sides concurred in stating that the only ground for decision was whether
    the applicants have such sufficient interest

    I think that it is unfortunate that this course has been taken. There may be
    simple cases in which it can be seen at the earliest stage that the person applying

    2

    for judicial review has no interest at all, or no sufficient interest to support the
    application: then it would be quite correct at the threshold to refuse him leave to
    apply. The right to do so is an important safeguard against the courts being
    flooded and public bodies harassed by irresponsible applications. But in other
    cases this will not be so. In these it will be necessary to consider the powers or
    the duties in law of those against whom the relief is asked, the position of the
    applicant in relation to those powers or duties, and to the breach of those said to
    have been committed. In other words, the question of sufficient interest can not,
    in such cases, be considered in the abstract, or as an isolated point: it must be
    taken together with the legal and factual context. The rule requires sufficient
    interest in the matter to which the application relates. This, in the present case,
    necessarily involves the whole question of the duties of the Inland Revenue and
    the breaches or failure of those duties of which the respondents complain.

    Before proceeding to consideration of these matters, something more needs
    to be said about the threshold requirement of " sufficient interest". The courts in
    exercising the power to grant prerogative writs, or since 1938 prerogative
    orders, have always reserved the right to be satisfied that the applicant had
    some genuine locus standi to appear before it. This they expressed in different
    ways. Sometimes it was said, usually in relation to certiorari, that the applicant
    must be a person aggrieved; or having a particular grievance (Ex parte
    Greenbaum
    (1951) 55 Knight's L.G.R. 129); usually in relation to mandamus,
    that he must have a specific legal right (Reg. v. Guardians of Lewisham Union
    [1897] 1 Q.B.498, Reg. v. Russell [1969] 1 Q.B. 342); sometimes that he must
    have a sufficient interest (Reg. v. Cotham [1898] 1 Q.B. 802, 804 (mandamus),
    Ex parte Stott [1916] 1 K.B. 7 (certiorari)). By 1977 when R.S.C. 0.53 was
    introduced the courts, guided by Lord Parker C.J., in cases where mandamus
    was sought, were moving away from the Lewis ham Union test of specific legal
    right, to one of sufficient interest.

    In Reg. v. Russell [1969] 1 Q.B. 342 Lord Parker had tentatively adhered to
    the test of legal specific right but in Reg. v. Commissioners for Customs and
    Excise: Ex parte Cook
    [1970] 1 W.L.R. 450, he had moved to sufficient
    interest. Shortly afterward the new rule (0.53 r.3) was drafted with these words.

    R.S.C. 0.53 was, it is well known, introduced to simplify the procedure of
    applying for the relief formerly given by prerogative writ or order — so the old
    technical rules no longer apply. So far as the substantive law is concerned, this
    remained unchanged: the Administration of Justice (Miscellaneous Provisions)
    Act 1938 preserved the jurisdiction existing before the Act, and the same
    preservation is contemplated by legislation now pending. The Order,
    furthermore, did not remove the requirement to show locus standi. On the
    contrary, in r.3, it stated this in the form of a threshold requirement to be found
    by the court. For all cases the test is expressed as one of sufficient interest in the
    matter to which the application relates. As to this I would state two negative
    propositions. First, it does not remove the whole — and vitally important —
    question of locus standi into the realm of pure discretion. The matter is one for
    decision, a mixed decision of fact and law, which the court must decide on legal
    principles. Secondly, the fact that the same words are used to cover all the forms
    of remedy allowed by the rule does not mean that the test is the same in all cases.
    When Lord Parker C.J. said that in cases of mandamus the test may well be
    stricter (sc. than in certiorari) — Reg. v. Russell (u.s.) and in Ex parte Cook
    (u.s.) "on a very strict basis", he was not stating a technical rule — which can
    now be discarded — but a rule of common sense, reflecting the different
    character of the relief asked for. It would seem obvious enough that the interest
    of a person seeking to compel an authority to carry out a duty is different from
    that of a person complaining that a judicial or administrative body has, to his
    detriment, exceeded its powers. Whether one calls for a stricter rule than the
    other may be a linguistic point they are certainly different and we should be
    unwise in our enthusiasm for liberation from procedural fetters to discard
    reasoned authorities which illustrate this. It is hardly necessary to add that
    recognition of the value of guiding authorities does not mean that the process of
    judicial review must stand still.

    In the present case we are in the area of mandamus — an alleged failure to
    perform a duty. It was submitted by the Lord Advocate that in such cases we
    should be guided by the definition of the duty — in this case statutory — and

    3

    enquire whether expressly, or by implication, this definition indicates — or the
    contrary — that the complaining applicant is within the scope or ambit of the
    duty. I think that this is at least a good working rule though perhaps not an
    exhaustive one.

    The Commissioners of Inland Revenue are a statutory body. Their duties
    are, relevantly, defined in the Inland Revenue Regulation Act 1890 and the
    Taxes Management Act 1970. Section 1 of the Act of 1890 authorises the
    appointment of Commissioners "for the collection and management of inland
    "revenue" and confers on the Commissioners "all necessary powers for
    "carrying into execution every Act of Parliament relating to inland revenue".
    By section 13 the Commissioners must "collect and cause to be collected every
    "part of inland revenue and all money under their care and management and
    "keep distinct accounts thereof.

    The Act of 1970 provides (section 1) that "income tax... shall be under the
    "care and management of the Commissioners". This Act contains the very
    wide powers of the Board and of Inspectors of Taxes to make assessments upon
    persons designated by Parliament as liable to pay income tax. With regard to
    casual employment, there is a procedure laid down by statutory instrument
    (S.I. 1973 No. 334) by which Inspectors of Taxes may proceed by way of direct
    assessment or in accordance with any special arrangements which the
    Commissioners of Inland Revenue may make for the collection of the tax. As I
    shall show later it was a "special arrangement" that the Commissioners set out
    to make in the present case.

    From this summary analysis it is clear that the Commissioners of Inland
    Revenue are not immune from the process of judicial review. They are an
    administrative body with statutory duties, which the courts, in principle, can
    supervise. They have indeed done so — see The Queen v. Special
    Commissioners
    [1888] 21 Q.B. 313 (mandamus) and cf. Special
    Commissioners
    v. Linsleys (Established 1894) Ltd. [1958] A.C. 569, where it
    was not doubted that a mandamus could be issued if the facts had been right. It
    must follow from these cases and from principle that a taxpayer would not be
    excluded from seeking judicial review if he could show that the Revenue had
    either failed in its statutory duty toward him or had been guilty of some action
    which was an abuse of their powers or outside their powers altogether. Such a
    collateral attack — as contrasted with a direct appeal on law to the courts —
    would no doubt be rare, but the possibility certainly exists.

    The position of other taxpayers — other than the taxpayers whose
    assessment is in question — and their right to challenge the Revenue's
    assessment or non-assessment of that taxpayer, must be judged according to
    whether, consistently with the legislation, they can be considered as having
    sufficient interest to complain of what has been done or omitted. I proceed
    thereto to examine the Revenue's duties in that light.

    These duties are expressed in very general terms and it is necessary to take
    account also of the framework of the income tax legislation. This establishes
    that the Commissioners must assess each individual taxpayer in relation to his
    circumstances. Such assessments and all information regarding taxpayers'
    affairs are strictly confidential. There is no list or record of assessments which
    can be inspected by other taxpayers. Nor is there any common fund of the
    produce of income tax in which income taxpayers as a whole can be said to have
    any interest. The produce of income tax, together with that of other inland
    revenue taxes, is paid into the Consolidated Fund which is at the disposal of
    Parliament for any purposes that Parliament thinks fit.

    The position of taxpayers is therefore very different from that of ratepayers.
    As explained in Arsenal Football Club Ltd. v. Ende [1979] A.C. 1, the amount
    of rates assessed upon ratepayers is ascertainable by the public through the
    valuation list The produce of rates goes into a common fund applicable for the
    benefit of the ratepayers. Thus any ratepayer has an interest, direct and
    sufficient, in the rates levied upon other ratepayers; for this reason, his right as a
    "person aggrieved" to challenge assessments upon them has long been
    recognised and is so now in the General Rate Act 1967, section 69. This right
    was given effect to in Ende's case (u.s.).


    4

    The structure of the legislation relating to income tax, on the other hand,
    makes clear that no corresponding right is intended to be conferred upon
    taxpayers. Not only is there no express or implied provision in the legislation
    upon which such a right could be claimed, but to allow it would be subversive of
    the whole system, which involves that the Commissioners' duties are to the
    Crown, and that matters relating to income tax are between the Commissioners
    and the taxpayer concerned. No other person is given any right to make
    proposals about the tax payable by any individual: he cannot even enquire as to
    such tax. The total confidentiality of assessments and of negotiations between
    individuals and the Revenue is a vital element in the working of the system. As a
    matter of general principle I would hold that one taxpayer has no sufficient
    interest in asking the court to investigate the tax affairs of another taxpayer or to
    complain that the latter has been under-assessed or over-assessed: indeed,
    there is a strong public interest that he should not. And this principle applies
    equally to groups of taxpayers: an aggregate of individuals each of whom has no
    interest cannot of itself have an interest.

    That a case can never arise in which the acts or abstentions of the Revenue
    can be brought before the court I am certainly not prepared to assert, nor that, in
    a case of sufficient gravity, the court might not be able to hold that another
    taxpayer or other taxpayers could challenge them. Whether this situation has
    been reached or not must depend upon an examination, upon evidence, of what
    breach of duty or illegality is alleged. Upon this, and relating it to the position of
    the complainant, the court has to make its decision. I find it necessary to state
    the circumstances in some detail.

    The evidence consists of affidavits from Mr. L.F. Payne, Vice-President of
    the Federation, Sir William Pile, Chairman of the Board of Inland Revenue,
    and Mr. J.A.P. Hoadley, Principal Inspector of Taxes, in charge of the Inland
    Revenue Special Offices. These together present a picture of clarity. It is not
    often that a court on summary proceedings has so much and so relevant
    information.

    Mr. Payne's affidavit sets out very fairly the facts as known to him regarding
    the employment of the "casuals" and the Revenue's actions with regard to the
    income tax they ought to have paid. He also gives a number of examples of what
    he claims to be the very different attitude, viz. one of strictness and even
    severity, taken by the Revenue as regards persons represented by the
    Federation. I think that these examples while explaining the indignation of the
    Federation and its members as regards the state of affairs in Fleet Street, cannot
    be judged on their merits on the material we have. Even if there were not another
    side to the taxpayers' presentation (and the Revenue suggests there may be) it is
    not suggested that, and is impossible to see how, any success in these
    proceedings would in any tangible way profit, or affect, the persons concerned
    or others like them.

    On the other hand, as I suggested in Ende's case, a sense of fairness as
    between one taxpayer or group of taxpayers and another is an important
    objective, so that a sense of unfairness may be the beginning of a recognisable
    grievance. I say the beginning, because the Income Tax legislation contains a
    large number of anomalies which are naturally not thought to be fair by those
    disadvantaged.

    In this context Mr. Payne also refers to the approach of the Revenue adopted
    in relation to self-employed workers in the construction industry (commonly
    known as "the lump"), who were found to be evading tax on a large scale. In this
    case the Revenue persuaded Parliament to enact legislation of a stringent
    character. But I think that this has no relevance for the present issue. Finally,
    Mr. Payne agrees that the new arrangements made by the Inland Revenue may
    be effective in securing that tax will be paid in the future on casual earnings. But
    he complains of the "amnesty" granted as regards arrears before 1977.

    Sir William Pile gives a general description of the scope and nature of the
    duties of the Inland Revenue with regard to the assessment and collection of
    taxes. He draws attention to the large number of potential taxpayers (about 25
    million) the huge sums involved, and the limitations on the Board's manpower.
    His evidence is that it is impossible for the Board to collect all the tax that is due,
    and that decisions have to be taken by way of "care and management" of the

    5

    taxes to collect as much as is practicable, by cost-effective methods. He denies
    any discrimination as between self-employed and other taxpayers. Such
    differences as exist are ascribable to difference of law and of fact The cases
    cited by Mr. Payne are in his opinion contentious. As regard the "casuals", the
    Board approved the proposals made by Mr. Hoadley and considered that it had
    good and sufficient justification for doing so. This was clearly a "management"
    decision.

    Mr. Hoadley explains the way in which the special offices came to
    investigate the problem of casual workers in Fleet Street, and the difficulties of
    discovering the facts. There is, and I think Mr. Payne agrees, no way in which
    the names and addresses of the defaulting "casuals" could be obtained, unless
    their unions were willing to reveal them. Estimating that about £1 million of tax
    a year were being lost, he decided that action was needed to stop this loss for the
    future. After reflection he considered that the best way to do so was by way of a
    special arrangement In order to make such an arrangement effective, the
    co-operation of the employers, the workers and the unions was essential. For
    this purpose he had lengthy discussions in the summer of 1978 with the
    employers, and the three unions involved, and as a result introduced a special
    arrangement in March 1979. This provided a method which would ensure that
    for the future tax would either be deducted at source or would be properly
    assessed. As regards the past, Mr. Hoadley made it clear to the union
    representative that, if the arrangement were generally accepted, then if a casual
    worker registered with the Inspector before 6th April 1979 and co-operated
    fully and promptly in settling his tax affairs (including the payment of any
    outstanding tax) investigation into tax lost would not be carried out for years
    before 1977-78, i.e. before 6th April 1977. Investigations into incorrect
    returns would be unaffected. As I have indicated, to call this an "amnesty" is
    liable to mislead.

    Mr. Hoadley expressed the conviction that an attempt to collect the whole
    amount due from hostile workers whose identity was unknown, for a period
    more than two years in the past, would have been unlikely to produce any
    substantial sums of money and would have delayed or even frustrated the new
    arrangement. He denied that he made the arrangement under pressure from the
    unions: he made his own decision and told them of it.

    In the Court of Appeal a good deal was made of the possibility of industrial
    action. But for this element, I think that the Master of the Rolls would have come to
    the conclusion that the Federation had no sufficient interest in the affairs of the
    "casuals". But he was impressed with the possibility that the Revenue had
    taken their decision because of threats of industrial action, and consequent
    pressure by employers. After carefully examining the evidence, I reach the
    conclusion that it does not support the argument. It was dealt with quite frankly
    by Mr. Hoadley. He knew, of course, that the newspaper industry is vulnerable
    to strikes. He said that the possibility of industrial action would not prevent him
    from seeking a settlement. But he would not get one without co-operation from
    the casuals and the unions, and if the latter did not co-operate nor would the
    employers. I think that all this was part of the process of obtaining the
    arrangement, and that it cannot be said that these very real considerations were
    outside what a person seeking, in the best interest of the Revenue, to obtain an
    agreement could properly take into account.

    Finally, Mr. Hoadley dealt very fully and adequately with all Mr. Payne's
    other points. His affidavit is very full and candid and I have only summarised
    the main points.

    On the evidence as a whole, I fail to see how any court considering it as such
    and not confining its attention to an abstract question of locus standi could
    avoid reaching the conclusion that the Inland Revenue, through Mr. Hoadley,
    were acting in this matter genuinely in the care and management of the taxes,
    under the powers entrusted to them. This has no resemblance to any kind of
    case where the court ought, at the instance of a taxpayer, to intervene. To do so
    would involve permitting a taxpayer or a group of taxpayers to call in question
    the exercise of management powers and involve the court itself in a management
    exercise. Judicial review under any of its headings does not extend into this
    area. Finally, if as I think, the case against the Revenue does not, on the

    6

    evidence, leave the ground, no court, in my opinion, would consider ordering
    discovery against the Revenue in the hope of eliciting some impropriety.
    Looking at the matter as a whole, I am of opinion that the Divisional Court,
    while justified on the ex parte application in granting leave, ought, having regard
    to the nature of "the matter" raised, to have held that the Federation had shown
    no sufficient interest in that matter to justify its application for relief. I would
    therefore allow the appeal and order that the originating motion be dismissed.

    Lord Diplock

    my lords,

    This appeal provides the House with its first occasion to consider what
    changes, if any, to public law in England have been made by the new Order 53
    of the Rules of the Supreme Court which came into effect on 11th January
    1978, and provides for applications for judicial review of the legality of action
    or inaction by persons or bodies exercising governmental powers.

    It is, in my view, very much to be regretted that a case of such importance to
    the development of English public law under this new procedure should have
    come before this House in the form that it does as a result of what my noble and
    learned friend, Lord Wilberforce, has described as the unfortunate course that
    was taken in the courts below when, leave to apply for judicial review having
    been previously granted ex parte, the application itself came on for hearing.
    This has had the result of deflecting the Divisional Court and the Court of
    Appeal from giving consideration to the questions (1) what was the public duty
    of the Board of Inland Revenue of which it was alleged to be in breach, and (2),
    what was the nature of the breaches that were relied upon by the Federation.
    Because of this, the judgment of the Court of Appeal against which appeal to
    your Lordships' House is brought takes the form of an interlocutory judgment
    declaring that the Federation "have a sufficient interest to apply for judicial
    "review herein".

    As my noble and learned friend has pointed out, these two omitted questions
    need to be answered in the instant case before it is possible to say whether the
    Federation have "a sufficient interest in the matter to which the application
    "relates", since, until they are answered, that matter cannot be identified. This
    is likely also to be the case in most applications for judicial review that are not
    on the face of them frivolous or vexatious. Your Lordships have accordingly
    heard full argument on both these questions.

    As respects the statutory powers and duties of the Board of Inland Revenue,
    these are described and dealt with in several of your Lordships' speeches. It
    would be wearisome if I were to repeat what already has been, and later will be,
    better said by others. All that I need say here is that the Board are charged by
    statute with the care, management and collection on behalf of the Crown of
    income tax, corporation tax and capital gains tax. In the exercise of these
    functions the Board have a wide managerial discretion as to the best means of
    obtaining for the national exchequer from the taxes committed to their charge,
    the highest net return that is practicable having regard to the staff available to
    them and the cost of collection. The Board and the inspectors and collectors
    who act under their directions are under a statutory duty of confidentiality with
    respect to information about individual taxpayers' affairs that has been
    obtained in the course of their duties in making assessments and collecting the
    taxes; and this imposes a limitation on their managerial discretion. I do not
    doubt, however, and I do not understand any of your Lordships to doubt, that if
    it were established that the Board were proposing to exercise or to refrain from
    exercising its powers not for reasons of "good management" but for some
    extraneous or ulterior reason, that action or inaction of the Board would be
    ultra vires and would be a proper matter for judicial review if it were brought to
    the attention of the court by an applicant with "a sufficient interest" in having
    the Board compelled to observe the law.

    As respects what were alleged to be breaches of its statutory duty by the
    Board on which the Federation relied, the evidence as to the way in which the
    Board and its Inspector in charge of the negotiations dealt with the problem of

    7

    the Fleet Street casuals and as to the reasons why they acted as they did, is set
    out in all necessary detail in Lord Wilberforce's speech. All this evidence was
    before the Divisional Court and the Court of Appeal had they chosen to look at
    it. It is enough for me to say that I agree with my noble and learned friend that no
    court considering this evidence could avoid reaching the conclusion that the
    Board and its Inspector were acting solely for "good management" reasons and
    in the lawful exercise of the discretion which the statutes confer on them.

    For my part, I should prefer to allow the appeal and dismiss the Federation's
    application under Order 53, not upon the specific ground of no sufficient
    interest but upon the more general ground that it has not been shown that in the
    matter of which complaint was made, the treatment of the tax-liabilities of the
    Fleet Street casuals, the Board did anything that was ultra vires or unlawful.
    They acted in the bona fide exercise of the wide managerial discretion
    conferred on them by statute. Since judicial review is available only as a remedy
    for conduct of a public officer or authority which is ultra vires or unlawful, but
    not for acts done lawfully in the exercise of an administrative discretion which
    are complained of only as being unfair or unwise, there is a sense in which it may
    be said that the Federation had not a sufficient interest in the matter to which
    their application related; but this is not a helpful statement; it would be equally
    true of anyone, including the Attorney-General, who sought to complain.

    It would be very much to be regretted if, in consequence of the unfortunate
    form in which the instant appeal came before this House, anything that is said
    by your Lordships today were to be understood as suggesting that the new
    Order 53 rule 3(5) has the effect of reviving any of those technical rules of locus
    standi
    to obtain the various forms of prerogative writs that were applied by the
    judges up to and during the first half of the present century, but which have been
    so greatly liberalised by judicial decision over the last thirty years. It is for this
    reason that I venture to state how, in my view, Order 53 would have applied to
    the Federation's application if, instead of their locus standi being considered in
    isolation, the proper course had been followed at the hearing of the application
    in the Divisional Court.

    My Lords, Order 5 3 was made by the Rules Committee under the powers
    conferred upon them by section 99 of the Judicature Act 1925 and section 10 of
    the Administration of Justice (Miscellaneous Provisions) Act 1938. Rules of
    court made under these sections are concerned with procedure and practice
    only; they cannot alter substantive law, nor can they extend the jurisdiction of
    the High Court. But in the field of public law where the court has a discretion
    whether or not to make an order preventing conduct by a public officer or
    authority that has been shown to be ultra vires or unlawful, the question of what
    qualifications an applicant must show before the court will entertain his
    application for a particular kind of order against a particular class of public
    officer or authority seems to me to be one of practice rather than of jurisdiction.
    It has been consistently so treated by the courts over the past thirty years.

    Before the new Order 53 was substituted for its predecessor, the private
    citizen who sought redress against a person or authority for acting unlawfully or
    ultra vires in the purported exercise of statutory powers, had to choose from a
    number of different procedures that which was the most appropriate to furnish
    him the redress that he sought The major differences in procedure including
    locus standi to apply for the relief sought, were between the remedies by way of
    declaration or injunction obtainable by a civil action brought to enforce public
    law and the remedies by way of the prerogative orders of mandamus,
    prohibition or certiorari which lay in public law alone; but even between the
    three public law remedies there were minor procedural differences, and the
    locus standi to apply for them was not quite the same for each, although the
    divergencies were in process of diminishing.

    Your Lordships can take judicial notice of the fact that the main purpose of
    the new Order 53 was to sweep away these procedural differences including, in
    particular, differences as to locus standi; to substitute for them a single
    simplified procedure for obtaining all forms of relief, and to leave to the court a
    wide discretion as to what interlocutory directions, including orders for
    discovery, were appropriate to the particular case.

    In the instant case, in the Divisional Court and Court of Appeal alike, the
    argument for the Board was put upon the footing that notwithstanding this

    8

    unification of procedure for obtaining the various remedies available in public
    law, including those which had been available in private law only, the new
    Order 5 3 had left unchanged the basis on which an applicant was recognised as
    having locus standi to apply for each individual form of relief sought In the
    instant case these were: a declaration and an order of mandamus.

    As respects the claim for a declaration considerable reliance was placed
    upon the recent decision of this House in Gouriet v. Union of Post Office
    Workers
    [1978] AC 435, which held that a private citizen, except as relator in
    an action brought by the Attorney-General, has no locus standi in private law
    as plaintiff in a civil action to obtain either an injunction to restrain another
    private citizen (in casu a trade union) from committing a public wrong by
    breaking the criminal law, or a declaration that his conduct is unlawful, unless
    the plaintiff can show that some legal or equitable right of his own has been
    infringed or that he will sustain some special damage over and above that
    suffered by the general public. This decision is, in my view, irrelevant to any
    question that your Lordships have to decide today. The defendant trade union
    in deciding to instruct its members to take unlawful industrial action was not
    exercising any governmental powers; it was acting as a private citizen and could
    only be sued as such in a civil action under private law. It was not amenable to
    any remedy in public law. Lord Wilberforce and I were at pains to draw this
    distinction.

    In contrast to this, judicial review is a remedy that lies exclusively in public
    law. In my view the language of rule 1(2) and rule (3) of the new Order 5 3 shows
    an intention that upon an application for judicial review the court should have
    jurisdiction to grant a declaration or an injunction as an alternative to making
    one of the prerogative orders, whenever in its discretion it thinks that it is just
    and convenient to do so; and that this jurisdiction should be exerciseable in any
    case in which the applicant would previously have had locus standi to apply for
    any of the prerogative orders. The matters specified in paragraphs (a) and (b) of
    rule 1(2) as matters to which the court must have regard, make this plain. So if,
    before the new Order 53 came into force, the court would have had jurisdiction
    to grant to the applicant any of the prerogative orders it may now grant him a
    declaration or injunction instead, notwithstanding that the applicant would
    have no locus standi to claim the declaration or injunction under private law in a
    civil action against the respondent to the application, because he could not show
    that any legal right of his own was threatened or infringed.

    So I turn first to consider what constituted locus standi to apply for one or
    other of the prerogative orders immediately before the new Order 53 came into
    force.

    In the earlier cases a more restrictive rule for locus standi was applied to
    applications for the writ of mandamus than for writs of prohibition or certiorari;
    and since mandamus was the prerogative order sought by the Federation in the
    instant case, your Lordships have been referred to many of them; reliance being
    placed in particular upon the brief extempore judgment of Wright J. delivered at
    the end of the last century in Reg. v. Guardians of Lemsham Union [1897]
    1 Q.B. 498. He there said that an applicant for a mandamus: "must first of all
    "show that he has a legal specific right to ask for the interference of the court".
    The law has not stood still since 1897. By 1977 this was no longer correct, and I
    have no hesitation in saying that it is inconceivable that mandamus would have
    been refused in the circumstances of that case if it had come before a Divisional
    Court at any time during the last twenty years.

    The rules as to "standing" for the purpose of applying for prerogative orders,
    like most of English public law, are not to be found in any statute. They were
    made by judges, by judges they can be changed; and so they have been over the
    years to meet the need to preserve the integrity of the rule of law despite changes
    in the social structure, methods of government and the extent to which the
    activities of private citizens are controlled by governmental authorities, that
    have been taking place continuously, sometimes slowly, sometimes swiftly,
    since the rules were originally propounded. Those changes have been
    particularly rapid since World War II. Any judicial statements on matters of
    public law if made before 1950 are likely to be a misleading guide to what the
    law is today.

    9

    In 1951, the decision of the Divisional Court in Reg. v. Northumberland
    Compensation Tribunal
    [1951] 1 Q.B. 711 resurrected error of law upon the
    face of the award record as a ground for granting certiorari. Parliament by the
    Tribunals and Inquiries Act 1958 followed this up by requiring reasons to be
    given for many administrative decisions that had previously been cloaked in
    silence; and the years that followed between then and 1977 witnessed a
    dramatic liberalisation of access to the courts for the purpose of obtaining
    prerogative orders against persons and authorities exercising governmental
    powers. This involved a virtual abandonment of the former restrictive rules as
    to the locus standi of persons seeking such orders. The process of liberalisation
    of access to the courts and the progressive discarding of technical limitations
    upon locus standi is too well known to call for detailed citation of the cases by
    which it may be demonstrated. They are referred to and discussed in the fourth
    edition of Professor H.W.R. Wade's "Administrative Law", (published in
    1977) at pages 543 to 546 (prohibition and certiorari) and 610 to 612
    (mandamus). The author points out there that although lip-service continued to
    be paid to a difference in standing required to entitle an applicant to mandamus
    on the one hand and prohibition or certiorari on the other, in practice the courts
    found some way of treating the locus standi for all three remedies as being the
    same. A striking example of this is to be found in Reg. v. Hereford Corporation
    Ex parte Harrower
    [1970] 1 WLR 1424, where the applicants were treated as
    having locus standi in their capacity as ratepayers though their real interest in
    the matter was as electrical contractors only. For my part I need only refer to
    Reg. v. Greater London Council Ex parte Blackburn [1976] 1 WLR 550. In
    that case Mr. Blackburn who lived in London with his wife who was a ratepayer,
    applied successfully for an order of prohibition against the council to stop them
    acting in breach of their statutory duty to prevent the exhibition of pornographic
    Films within their administrative area. Mrs. Blackburn was also a party to the
    application. Lord Denning M.R. and Stephenson L.J. were of opinion that both
    Mr. and Mrs. Blackburn had locus standi to make the application: Mr.
    Blackburn because he lived within the administrative area of the council and
    had children who might be harmed by seeing pornographic films and Mrs.
    Blackburn not only as a parent but also on the additional ground that she was a
    ratepayer. Bridge L.J. relied only on Mrs. Blackburn's status as a ratepayer, a
    class of persons to whom for historical reasons the court of King's Bench
    afforded generous access to control ultra vires activities of the public bodies to
    whose expenses they contributed. But now that local government franchise is
    not limited to ratepayers, this distinction between the two applicants strikes me
    as carrying technicality to the limits of absurdity having regard to the subject-
    matter of the application in the Blackburn case. I agree in substance with what
    the Master of the Rolls there said, though in language more eloquent than it
    would be my normal style to use:

    "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".
    (The italics in this quotation are my own).

    The reference here is to flagrant and serious breaches of the law by persons
    and authorities exercising governmental functions which are continuing
    unchecked. To revert to technical restrictions on locus standi to prevent this
    that were current thirty years ago or more would be to reverse that progress
    towards a comprehensive system of administrative law that I regard as having
    been the greatest achievement of the English courts in my judicial lifetime.

    The reliance by Bridge L.J. in Reg. v. Greater London Council Ex parte
    Blackburn
    upon Mrs. Blackburn's status as a ratepayer to give her locus standi
    reflects a special relationship between ratepayers and the rate-levying authority
    and between one rate-payer and another, which is of ancient origin and
    antedates by centuries the first imposition of taxes upon income. This led the
    Board in the instant case to seek to rely upon the decision of this House in
    Arsenal Football Club Ltd. v. Ende [1979] A.C. 1 as authority for a
    proposition of law that a taxpayer lacked a sufficient interest in what the Board

    10

    did in dealing with the tax affairs of other taxpayers to clothe the court with
    jurisdiction to entertain his application for an order of mandamus, however
    flagrantly the Board, in its dealing with those other taxpayers, had flouted the
    law So, it was contended, no question of discretion could arise. The Arsenal
    Stadium
    case had been decided before the new Order 53 had been made; but, in
    any event, it was not concerned with an application for a prerogative order, it
    turned on whether a ratepayer who complained that the value for the
    hereditament of another ratepayer published in the valuation list was too low,
    was a "person aggrieved" by that low valuation within the meaning of section
    69 of the General Rating Act 1967, notwithstanding that, since the raising of
    the valuation of the hereditament could have no effect upon the amount of rates
    payable by the objecting ratepayer, no financial interest of his own was affected.
    The question before this House was one of statutory construction only. It was
    held that the objecting ratepayer was a "person aggrieved", not only in his
    capacity as a ratepayer in the same London Borough as that in which the
    hereditament that was the subject of his complaint was situated but also as a
    ratepayer of another London Borough within the precepting area of the G.L.C.
    The case is thus illustrative of the liberal attitude of the courts in granting access
    to legal remedies for those complaining of failure of public officers to perform
    their duties. He was held, however, not to be a person aggrieved in his capacity
    as a taxpayer despite the fact that any shortfall in the rate yield due to the
    undervaluation of the hereditament would be made up from central funds to
    which all taxpayers in Great Britain contribute. A line, it was said, has to be
    drawn somewhere, and his interest as a taxpayer was too remote to qualify him
    as a person aggrieved by a single entry in the valuation list for rating purposes of
    a London Borough.

    My Lords, the expression "person aggrieved" is of common occurrence in
    statutes and, in its various statutory contexts, has been the subject of
    considerable judicial exegesis. In the past, however, it had also sometimes been
    used by judges to describe those persons who had locus standi to apply for the
    former prerogative writs or, since 1938, prerogative orders. It was on this
    somewhat frail ground that it was argued that the distinction drawn in the
    Arsenal Stadium case between Mr. Ende's grievance as a ratepayer and his
    grievance as a taxpayer was relevant to the question whether the Federation as
    representing taxpayers was entitled to locus standi in the instant case. However
    this may have been before the new Order 53 was made, the draftsman of that
    order avoided using the expression "a person aggrieved", although it lay ready
    to his hand. He chose instead to get away from any formula that might be
    thought to have acquired, through judicial exposition, a particular meaning as a
    term of legal art. The expression that he used in rule 3(5) had cropped up
    sporadically in judgments relating to prerogative writs and orders and consisted
    of ordinary English words which, on the face of them, leave to the court an
    unfettered discretion to decide what in its own good judgment it considers to be
    "a sufficient interest" on the part of an applicant in the particular circumstances
    of the case before it. For my part I would not strain to give them any narrower
    meaning.

    The procedure under the new Order 53 involves two stages: (1) the
    application for leave to apply for judicial review, and (2) if leave is granted, the
    hearing of the application itself. The former, or "threshold", stage is regulated
    by rule 3. The application for leave to apply for judicial review is made initially
    ex pane, but may be adjourned for the persons or bodies against whom relief is
    sought to be represented. This did not happen in the instant case. Rule 3(5)
    specifically requires the court to consider at this stage whether "it considers that
    "the applicant has a sufficient interest in the matter to which the application
    "relates." So this is a "threshold" question in the sense that the court must
    direct its mind to it and form a prima facie view about it upon the material that is
    available at the first stage. The prima facie view so formed, if favourable to the
    applicant, may alter on further consideration in the light of further evidence that
    may be before the court at the second stage, the hearing of the application for
    judicial review itself.

    The need for leave to start proceedings for remedies in public law is not new.
    It applied previously to applications for prerogative orders, though not to civil
    actions for injunctions or declarations. Its purpose is to prevent the time of the
    court being wasted by busybodies with misguided or trivial complaints of

    11

    administrative error, and to remove the uncertainty in which public officers and
    authorities might be left as to whether they could safely proceed with
    administrative action while proceedings for judicial review of it were actually
    pending even though misconceived.

    My Lords, I understand that all your Lordships are agreed that upon the
    material that was before the Divisional Court upon the ex parte application by
    the Federation for leave to apply for judicial review of the so-called "amnesty"
    extended to the Fleet Street casuals, the court was justified in exercising its
    discretion in favour of granting the leave sought. The only evidence that was
    before the court was the affidavit of Mr. Payne, the contents of which have been
    summarised by my noble and learned friend Lord Wilberforce. It made out a
    prima facie case, albeit a somewhat flimsy one, that the Revenue had
    differentiated between three classes of defaulting taxpayers, (1) the Fleet Street
    casuals, all of whom were members of powerful trade unions, (2) owners of
    small businesses, who were not members of trade unions and on whose behalf
    the Federation purported to be acting, and (3) perhaps more significantly, self-
    employed workers in the construction industry popularly referred to as "the
    "lump" to whom powerful trade unions were bitterly opposed. In the absence of
    any other explanation, the leniency with which tax defaulters in the first class
    had been treated as contrasted with the severity with which those in the two
    latter classes were pursued, gave rise, it was suggested by the Federation, to
    reasonable suspicion that the Revenue had granted the amnesty not for any
    reasons of good management, but simply in response to trade union pressure.

    The complaint made by the Federation was not of preferential treatment of
    individual taxpayers but of all taxpayers falling within a particular class
    comprising 4,000 to 5,000 members whose unpaid taxes, recovery of which up
    to April 1977 was to be abandoned, were of the order of £1,000,000 a year.
    Consideration of the Federation's complaint would not involve any departure
    from the Board's statutory duty to preserve the confidentiality of information
    obtained by its inspectors and collectors about individual taxpayers' affairs,
    since ex hypothesi the members of this class of taxpayers had made no returns
    and had not provided any information about their affairs.

    My Lords, at the threshold stage, for the Federation to make out a prima
    facie
    case of reasonable suspicion that the Board in showing a discriminatory
    leniency to a substantial class of taxpayers had done so for ulterior reasons
    extraneous to good management, and thereby deprived the national exchequer
    of considerable sums of money, constituted what was in my view reason enough
    for the Divisional Court to consider that the Federation or, for that matter, any
    taxpayer, had a sufficient interest to apply to have the question whether the
    Board was acting ultra vires reviewed by the court. The whole purpose of
    requiring that leave should first be obtained to make the application for judicial
    review would be defeated if the court were to go into the matter in any depth at
    that stage. If, on a quick perusal of the material then available, the court thinks
    that it discloses what might on further consideration turn out to be an arguable
    case in favour of granting to the applicant the relief claimed, it ought, in the
    exercise of a judicial discretion, to give him leave to apply for that relief. The
    discretion that the court is exercising at this stage is not the same as that which it
    is called upon to exercise when all the evidence is in and the matter has been
    fully argued at the hearing of the application.

    The analysis to which, on the invitation of the Lord Advocate, the relevant
    legislation has been subjected by some of your Lordships, and particularly the
    requirement of confidentiality which would be broken if one taxpayer could
    complain that another taxpayer was being treated by the Revenue more
    favourably than himself, means that occasions will be very rare on which an
    individual taxpayer (or pressure group of taxpayers) will be able to show a
    sufficient interest to justify an application for judicial review of the way in which
    the Revenue has dealt with the tax affairs of any taxpayer other than the
    applicant himself.

    Rare though they may be, however, if, in the instant case, what at the
    threshold stage was suspicion only had been proved at the hearing of the
    application for judicial review to have been true in fact (instead of being utterly
    destroyed), I would have held that this was a matter in which the Federation had
    a sufficient interest in obtaining an appropriate order, whether by way of

    12

    declaration or mandamus, to require performance by the Board of statutory
    duties which for reasons shown to be ultra vires it was failing to perform.

    It would, in my view, be a grave lacuna in our system of public law if a
    pressure group, like the Federation, or even a single public-spirited taxpayer,
    were prevented by outdated technical rules of locus standi from bringing the
    matter to the attention of the court to vindicate the rule of law and get the
    unlawful conduct stopped. The Attorney-General, although he occasionally
    applies for prerogative orders against public authorities that do not form part of
    central government, in practice never does so against government departments.
    It is not, in my view, a sufficient answer to say that judicial review of the actions
    of officers or departments of central government is unnecessary because they
    are accountable to Parliament for the way in which they carry out their
    functions. They are accountable to Parliament for what they do so far as regards
    efficiency and policy, and of that Parliament is the only judge; they are
    responsible to a court of justice for the lawfulness of what they do, and of that
    the court is the only judge.

    I would allow this appeal upon the ground upon which, in my view, the
    Divisional Court should have dismissed it when the application came to be
    heard, instead of singling out the lack of a sufficient interest on the part of the
    Federation, viz. that the Federation completely failed to show any conduct by
    the Board that was ultra vires or unlawful.

    Lord Fraser of Tullybelton

    my lords.

    I agree with all my noble and learned friends that this appeal should be
    allowed. I agree with the reasoning of Lord Wilberforce and Lord Roskill but I
    wish to explain my reasons in my own words.

    The application by the respondents in the appeal for judicial review under
    R.S.C. Order 53 was refused by the Divisional Court on the ground that the
    applicants did not have a "sufficient interest" in the matter to which the
    application related, as required by rule 3 of that order. The decision of the
    Divisional Court was reversed by the Court of Appeal, by majority. Some of my
    noble and learned friends who heard the appeal consider that the appeal should
    be allowed and the application refused on the wider ground that it has no
    prospect of success on the merits. I agree that it does not, because the relief
    sought is a judicial review in the form of a declaration that the appellants "acted
    "unlawfully" and an order of mandamus that they assess and collect income tax
    "according to the law", but for the reasons explained by my noble and learned
    friend Lord Wilberforce, it is clear that the appellants did not act unlawfully. So
    the application cannot succeed on its merits.

    But the question whether the respondents have a sufficient interest to make
    the application at all is a separate, and logically prior, question which has to be
    answered affirmatively before any question on the merits arises. Refusal of the
    application on its merits therefore implies that the prior question has been
    answered affirmatively. I recognise that in some cases, perhaps in many, it may
    be impracticable to decide whether an applicant has a sufficient interest or not,
    without having evidence from both parties as to the matter to which the
    application relates, and that, in such cases, the court before whom the matter
    comes in the first instance cannot refuse leave to the applicant at the ex parts
    stage, under rule 3(5). The court which grants leave at that stage will do so on
    the footing that it makes a provisional finding of sufficient interest, subject to
    revisal later on, and it is therefore not necessarily to be criticised merely
    because the final decision is that the applicant did not have sufficient interest.
    But where, after seeing the evidence of both parties, the proper conclusion is
    that the applicant did not have a sufficient interest to make the application, the
    decision ought to be made on that ground. The present appeal is, in my view,
    such a case and I would therefore dismiss the appeal on that ground. When it is
    also shown, as in this case, that the application would fail on its merits, it is
    desirable for that to be stated by the court which first considers the matter in
    order to avoid unnecessary appeals on the preliminary point.


    13

    The rules of court give no guidance as to what is a sufficient interest for this
    purpose. I respectfully accept from my noble and learned friends who are so
    much more familiar than I am with the history of the prerogative orders that
    little assistance as to the sufficiency of the interest can be derived from the older
    cases. But while the standard of sufficiency has been relaxed in recent years, the
    need to have an interest has remained and the fact that rule 3 of Order 53
    requires a sufficient interest undoubtedly shows that not every applicant is
    entitled to judicial review as of right.

    The new Order 53, introduced in 1977, no doubt had the effect of removing
    technical and procedural differences between the prerogative orders, and of
    introducing a remedy by way of declaration or injunction in suitable cases, but I
    do not think it can have had the effect of throwing over all the older law and of
    leaving the grant of judicial review in the uncontrolled discretion of the court.
    On what principle, then, is the sufficiency of interest to be judged? All are
    agreed that a direct financial or legal interest is not now required, and that the
    requirement of a legal specific interest laid down in Regina v. Lewisham
    Guardians
    [1897] 1 Q.B. 488 is no longer applicable. There is also general
    agreement that a mere busybody does not have a sufficient interest. The
    difficulty is, in between those extremes, to distinguish between the desire of the
    busybody to interfere in other people's affairs and the interest of the person
    affected by or having a reasonable concern with the matter to which the
    application relates. In the present case that matter is an alleged failure by the
    appellants to perform the duty imposed upon them by statute.

    The correct approach in such a case is, in my opinion, to look at the statute
    under which the duty arises, and to see whether it gives any express or implied
    right to persons in the position of the applicant to complain of the alleged
    unlawful act or omission. On that approach it is easy to see that a ratepayer
    would have a sufficient interest to complain of unlawfulness by the authorities
    responsible for collecting the rates. Even if the General Rate Act 1967 had not
    expressly given him a right to propose alteration in the Valuation List if he is
    aggrieved by any entry therein, he would have an interest in the accuracy of the
    list which is the basis for allocating the total burden of rates between himself and
    other ratepayers in the area. The list is public and is open for inspection by any
    person. The position of the taxpayer is entirely different. The figures on which
    other taxpayers have been assessed are not normally within his knowledge and
    the Commissioners of Inland Revenue and their officials are obliged to keep
    these matters strictly confidential, see Inland Revenue Regulation Act 1890
    section 1(1) and section 39 and the Taxes Management Act 1970 section 1,
    section 6 and Schedule 1. The distinction between a ratepayer and a taxpayer
    that was drawn in Arsenal Football Club Ltd. v. Ende [1979] A.C. 1 for the
    purposes of defining a person aggrieved under the General Rate Act 1967 is
    also relevant to the present matter.

    The respondents are a body with some 50,000 members, but their counsel
    conceded, rightly in my opinion, that if they had a sufficient interest to obtain
    judicial review, then any individual taxpayer, or at least any payer of income
    tax, must also have such an interest. I can see no justification for treating payers
    of income tax as having any separate interest in the matter now complained of
    from that of persons who pay other taxes. All taxpayers contribute to the
    general fund of revenue and the sense of grievance which the respondents claim
    to feel because of the difference between the appellants' treatment of the Fleet
    Street casuals and their treatment of private traders might be felt just as strongly
    by any honest taxpayer who pays the full amount of taxes of any kind to which
    he is properly liable. But if the class of persons with a sufficient interest is to
    include all taxpayers it must include practically every individual in the country
    who has his own income, because there must be few individuals, however frugal
    their requirements, who do not pay some indirect taxes including VAT. It
    would, I think, be extravagant to suggest that every taxpayer who believes that
    the Inland Revenue or the Commissioners of Customs and Excise are giving an
    unlawful preference to another taxpayer, and who feels aggrieved thereby, has a
    sufficient interest to obtain judicial review under Order 53. It may be that, if he
    was relying upon some exceptionally grave or widespread illegality, he could
    succeed in establishing a sufficient interest but such cases would be very rare
    indeed, and this is not one of them.

    14

    For these reasons I would allow the appeal on the ground that the
    respondents have no sufficient interest in the matters complained of.

    Lord Scarman

    MY LORDS,

    The National Federation of Self-Employed and Small Businesses Ltd. are
    applicants for judicial review. The Federation seek a declaration and an order
    of mandamus. They are asking the court to declare illegal a policy decision by
    the Revenue not to collect back tax from the casual printers of Fleet Street and
    to order the Revenue to collect the tax. The decision was taken by the Revenue
    pursuant to a special arrangement under which the Revenue agreed not to seek
    to collect the tax of past years if the casuals would comply with arrangements
    facilitating the collection of tax for future years. The details of the arrangement
    are fully set out in the affidavit evidence. The Federation allege that the special
    arrangement — "amnesty" is what they understandably but inaccurately call
    it - - when contrasted with the Revenue's relentless pursuit of Federation
    members who are suspected of not paying their taxes is a breach of the
    Revenue's duty to treat taxpayers fairly, that the duty is owed to the general
    body of taxpayers, and that the Federation and its members have a genuine
    grievance which entitle them to seek the assistance of the court. The Revenue
    denies the existence of any such duty owed to the Federation, its members, or
    the general body of taxpayers, though it acknowledges the importance, as a
    matter of policy, of treating taxpayers fairly. The Revenue denies, therefore,
    that the Federation (or its members) have a sufficient interest in the matter to
    entitle them to relief by way of judicial review. Put shortly, if there is no legal
    duty, there can be no interest which a court can protect.

    The application for judicial review was introduced by rule of court in 1977.
    The new R.S.C. Order 53 is a procedural reform of great importance in the field
    of public law, but it does not — indeed, cannot — either extend or diminish the
    substantive law. Its function is limited to ensuring "ubi jus, ibi remedium".

    The new procedure is more flexible than that which it supersedes. An
    applicant for relief will no longer be defeated merely because he has chosen to
    apply for the wrong remedy. Not only has the court a complete discretion to
    select and grant the appropriate remedy: but it now may grant remedies which
    were not previously available. Rule 1(2) enables the court to grant a declaration
    or injunction instead of, or in addition to, a prerogative order where to do so
    would be just and convenient. This is a procedural innovation of great
    consequence: but it neither extends nor diminishes the substantive law. For the
    two remedies (borrowed from the private law) are put in harness with the
    prerogative remedies. They may be granted only in circumstances in which one
    or other of the prerogative orders can issue. I so interpret Order 53, r.l(2)
    because to do otherwise would be to condemn the rule as ultra vires.

    The appeal is said by both parties to turn on the meaning to be attributed to
    0.53 rule 3(5), which has been described as the heart of the Order. It is in these
    terms:

    "(5) The Court shall not grant leave unless it considers that the
    "applicant has a sufficient interest in the matter to which the application
    "relates."

    There is, my Lords, no harm in so describing the issue, so long as it is
    remembered that the right to apply for a prerogative order is a matter of law, not
    to be modified or abridged by rule of court. The right has always been, and
    remains to-day, available only at the discretion of the High Court which has to
    be exercised upon the facts of the particular case and according to principles
    developed by the judges. The case law, as it has developed and continues to
    develop in the hands of the judges, determines the nature of the interest an
    applicant must show to obtain leave to apply. The rule, however, presents no
    problems of construction. Its terms are wide enough to reflect the modern law
    without distorting or abridging the discretion of the judges: and it draws
    attention to a feature of the law, which has been overlooked in the present case.
    The sufficiency of the applicant's interest has to be judged in relation to the

    15

    subject-matter of his application. This relationship has always been of
    importance in the law. It is well illustrated by the history of the development of
    the prerogative writs, notably the difference of approach to mandamus and
    certiorari and it remains a factor of importance in the exercise of the discretion
    to-day.

    I, therefore, accept that one may properly describe the question for the
    House's decision as being whether the Federation has shown that it has a
    sufficient interest in the matter to which its application relates to apply for a
    declaration and an order of mandamus directed to requiring the Commissioners
    of Inland Revenue to fulfil their public duty. The question is far from easy to
    answer, raising some complicated issues as to the rights of the private citizen to
    invoke the aid of the courts in compelling the performance of public duty or in
    righting public wrongs:— rights whose scope and effect derive not from R.S.C.
    Order 53 but from the common law developed by the judges.

    The Federation obtained leave ex parte to apply for judicial review. They
    then sought an order for discovery of documents from the Master; but no order
    was made pending the hearing, inter partes, of a preliminary issue on the locus
    standi
    point. The Divisional Court decided the preliminary issue against the
    Federation, basing itself on dicta to be found in the speeches in Arsenal
    Football Club Ltd.
    v. Ende [1979] A.C. 1. The Court of Appeal, by a majority,
    allowed the Federation's appeal, holding, as the Master of the Rolls put it, that
    the Federation and its members "are not mere busybodies" but "have a genuine
    "grievance" [1980] 2 All E.R. 378 at p. 392. Ackner L.J., after remarking that
    it had been assumed (by counsel's concession limited to the argument on the
    preliminary issue) that the Board acted unlawfully, held that "the body of
    "taxpayers represented by the Federation can reasonably assert a genuine
    "grievance," supra, p. 399.

    As others of your Lordships have already commented, the decision to take
    locus standi as a preliminary issue was a mistake and has led to unfortunate
    results. The matter to which the application relates, namely, the legality of the
    policy decision taken by the Revenue to refrain from collecting tax from the
    Fleet Street casuals, was never considered by the Divisional Court and was
    dealt with by concession in the Court of Appeal. Yet there were available at
    both hearings very full affidavits from which the circumstances in which the
    policy decision, which is challenged, was taken, and the Revenue's explanation,
    clearly emerge.

    In Your Lordships' House the Lord Advocate, who now appears for the
    appellants, the Commissioners of Inland Revenue, has withdrawn the
    concession. He was right to do so. He has put at the forefront of his argument a
    reasoned analysis of the statutory duties of the Revenue, and has invited the
    House to hold that the statutory code neither recognises nor imposes upon the
    Revenue a duty such as the Federation alleges to the general body, or any group
    of taxpayers.

    Before I consider this submission, it is necessary to deal with a subsidiary
    point taken by the Lord Advocate. He submitted that, notwithstanding the
    language of Order 53 rule 1(2) the court has no jurisdiction to grant to a private
    citizen a declaration save in respect of a private right or wrong: and he relied on
    the House's decision in Gouriet v. Union of Post Office Workers [1978] A.C.
    435. Declaration is, of course, a remedy developed by the judges in the field of
    private law. Gouriet's case is authority for the proposition that a citizen may not
    issue a writ claiming a declaration or other relief against another for the redress
    of a public wrong unless he can persuade the Attorney-General, on his
    "relation", to bring the action. The case has nothing to do with the prerogative
    jurisdiction of the High Court; and it was decided before the introduction of the
    new Order 53, at a time when a declaration could not be obtained by a private
    citizen unless he could show (as in a claim for injunction) that a private right of
    his was threatened or infringed. The new Order has made the remedy available
    as an alternative, or an addition, to a prerogative order. Its availability has,
    therefore, been extended, but only in the field of public law where a prerogative
    order may be granted. I have already given my reasons for the view that this
    extension is purely a matter of procedural law, and so within the rule-making
    powers of the Rules Commitee. I therefore reject this submission of the Lord
    Advocate.

    16

    I pass now to the two critical issues:

    1. the character of the duty upon the Revenue and the persons to whom
      it is owed. Is it legal, political, or merely moral?

    2. the nature of the interest which the applicant has to show.

    It is an integral part of the Lord Advocate's argument that the existence of the
    duty is a significant factor in determining the sufficiency of an applicant's
    interest.

    The Duty

    Mandamus is the most elusive of the prerogative writs and orders. The nature
    of the interest an applicant must show, the nature of the duty which it is
    available to enforce, and the persons or bodies to whom it may issue have varied
    from time to time in its development. It is, of course, a judicial remedy: it is
    equally clear that it is a remedy to compel performance of a public legal duty,
    that it does not go to the Crown itself, and that it is available only if the applicant
    shows a sufficient interest. In Appendix 1 to Judicial Review of Administrative
    Action (3rd ed. 1973) the late Professor S.A. de Smith, discussing the
    historical origins of the prerogative writs, commented (p. 515) that:

    "Through the writ of mandamus the King's Bench compelled the
    "carrying-out of ministerial duties incumbent upon both administrative
    "and judicial bodies."

    Lord Mansfield clearly developed a very liberal view as to its availability.
    "It ought to be used upon all occasions where the law has established no specific
    "remedy, and where injustice and good government there ought to be one":
    Reg. v. Barker [1762] 3 Burr. 1265, at p. 1267. But it does not lie to compel
    performance of a moral duty: Ex parte Napier [1852] 18 Q.B. 692. Nor may it
    be used to enforce a duty owed exclusively to the Crown: Reg. v. Commissioners
    of the Treasury
    [1872] L.R 7 Q.B. 387. It has, however, been recognised by
    the judges as a remedy for certain forms of abuse of discretion, upon the
    principle that the improper or capricious exercise of discretion is a failure to
    exercise the discretion which the law has required to be exercised: see Lord
    Mansfield C.J. in Reg. v. Askew [1768] 4 Burr. 2186 at pages 2188-9, and, in
    modern times, Padfield v. Minister of Agriculture, Fisheries, and Food [1968]
    A.C. 997. The Lord Advocate accepted, as I understand his argument, this
    broad approach. But he strenuously submitted that the law imposed no such
    public legal duty as that for which the Federation contends.

    He submitted that one must examine what he appropriately described as
    "the statutory code" to determine whether a duty owed to the applicant is
    expressly or impliedly recognised by the law. If this be an invitation to consider
    the relevant statutory provisions against a general background of legal principle
    developed by the judges, I accept it. For this is the common law approach to
    statute law.

    First, then, "the statutory code". It is to be found in the Inland Revenue
    Regulation Act 1890 and the Taxes Management Act 1970. Commissioners
    are appointed "for the collection and management of inland revenue": section
    1(1) Inland Revenue Regulation Act 1890. They "shall collect and cause to be
    "collected every part of inland revenue": section 13(1). "Inland revenue"
    means the revenue and taxes "placed under the care and management of the
    "Commissioners": section 39. The Taxes Management Act 1970 places
    income tax under their care and management and for that purpose confers upon
    them and inspectors of tax very considerable discretion in the exercise of their
    powers. It also imposes upon them the very significant duty of confidence in
    investigating, and dealing with, the affairs of the individual taxpayer. Indeed,
    the Lord Advocate relied on the existence of this duty as an indication that the
    statute imposed no duty owed to a taxpayer (or the general body of taxpayers)
    in respect of the collection of taxes due from another taxpayer: and he made
    particular reference to sections 1 and 6 and Schedule 1 to the Act. He rightly
    observed that in the daily discharge of their duties inspectors are constantly
    required to balance the duty to collect "every part" of due tax against the duty of
    good management. This conflict of duties can be resolved only by good
    managerial decisions, some of which will inevitably mean that not all the tax
    known to be due will be collected.

    17

    Upon this analysis of the statutes the Lord Advocate submitted that the law
    neither imposes nor recognises a duty owed to an individual taxpayer or a group
    of taxpayers to collect from other taxpayers all the tax due from them. He
    supported his submission by a reference to Reg. v. Commissioners of the
    Treasury, supra;
    and he emphasised that Parliament, and, since 1967, the
    Parliamentary Commissioner, exist to redress the sort of grievance asserted by
    the Federation in this case. His ultimate characterisation of the Revenue's
    failure in this case, if it was a failure, was "maladministration", not breach of
    any public duty owed at law to the general body of taxpayers.

    While I reject his conclusion, I accept much, but not all, of his submission.
    The analysis of the statutory provisions is clearly correct. They establish a
    complex of duties and discretionary powers imposed and conferred in the
    interest of good management upon those whose duty it is to collect the income
    tax. But I do not accept that the principle of fairness in dealing with the affairs of
    taxpayers is a mere matter of desirable policy or moral obligation. Nor do I
    accept that the duty to collect "every part of inland revenue" is a duty owed
    exclusively to the Crown. Notwithstanding the 1872 Treasury case (supra), I
    am persuaded that the modern case law recognises a legal duty owed by the
    Revenue to the general body of the taxpayers to treat taxpayers fairly; to use
    their discretionary powers so that, subject to the requirements of good
    management, discrimination between one group of taxpayers and another does
    not arise; to ensure that there are no favourites and no sacrificial victims. The
    duty has to be considered as one of several arising within the complex
    comprised in the care and management of a tax, every part of which it is their
    duty, if they can, to collect.

    Authority for this view is plentiful, albeit only persuasive in character.
    Viscount Simon L.C. in Latilla v. Inland Revenue Commissioners [1943]
    A.C. 377 at p. 381, discussing the evil of tax avoidance schemes, commented
    that:

    "one result of such methods, if they succeed, is . . . to increase, pro tanto,
    "the load of tax on the shoulders of the great body of good citizens".

    In the Arsenal case, loc.cit. at p. 17F Lord Wilberforce commented —
    admittedly in the context of rates but in terms which cannot rationally exclude a
    taxpayer — that

    "To produce a sense of justice is an important objective of taxation
    "policy".

    In Vestey v. Inland Revenue Commissioners (No. 2) [1979] Ch. 177,
    Walton J. said at p. 197 that it is in "the interest not only of all individual
    "taxpayers ... but also in the interests of the Revenue, . . . that the tax system
    "should be fair"; and at p. 204B:

    "even if, contrary to my views, extra-statutory concessions are
    "permissible and do form part of our tax code, nevertheless they do
    "represent a published code, which applies indifferently to all those who
    "fall, or who can bring themselves, within its scope".

    In the same case, when it reached the House, Lord Edmund-Davies, [1980]
    A.C. 1148 at p. 1196, speaking of the House's decision in Congreve v. Inland
    Revenue Commissioners
    [1948] 1 All E.R. 948, said:

    "But if it be permitted to stand, we have the deplorable situation that the
    "Inland Revenue Commissioners can capriciously select which of several
    "beneficiaries they are going to tax . . .". (Emphasis supplied).

    The duty of fairness as between one taxpayer and another is clearly
    recognised in these (and other passages) in the modern case law. Is it a mere
    moral duty, a matter for policy but not a rule of law? If it be so, I do not
    understand why distinguished judges allow themselves to discuss the topic: they
    are concerned with law, not policy. And is it acceptable for the courts to leave
    matters of right and wrong, which give rise to genuine grievance and are
    justiciable in the sense that they may be decided and an effective remedy
    provided by the courts, to the mercy of policy? Are we in the twilight world of
    "maladministration" where only Parliament and the Ombudsman may enter,
    or upon the commanding heights of the law? The courts have a role, long

    18

    established, in the public law. They are available to the citizen who has a
    genuine grievance if he can show that it is one in respect of which prerogative
    relief is appropriate. I would not be a party to the retreat of the courts from this
    field of public law merely because the duties imposed upon the Revenue are
    complex and call for management decisions in which discretion must play a
    significant role.

    If it be urged that the House took a different view in the Arsenal Football
    Club
    case, supra, I would reply that the view there expressed, in so far as it
    concerned whether the Revenue owed a legal duty to the general body of
    taxpayers, was obiter. The case should, perhaps, be considered more in the
    context of an applicant's interest than in that of the nature of the duty placed
    upon the public authority: for it turned on the meaning to be attributed to a
    person "aggrieved" in section 69 of the General Rate Act 1967.

    It is, however, not decisive of either issue: and, for the reasons given by
    Ackner L.J. in the Court of Appeal, I would refuse to introduce into the public
    law the fine distinction, which the House in that case considered to exist,
    between the duty of a rating authority and the duty of a taxing authority. I am,
    therefore, of the opinion that a legal duty of fairness is owed by the Revenue to
    the general body of taxpayers. It is, however, subject to the duty of sound
    management of the tax which the statute places upon the Revenue.

    The Interest

    The sufficiency of the interest is, as I understand all your Lordships agree,
    a mixed question of law and fact. The legal element in the mixture is less than
    the matters of fact and degree: but it is important, as setting the limits within
    which, and the principles by which, the discretion is to be exercised. At one time
    heresy ruled the day. The decision of the Divisional Court in Reg. v. Lewisham
    Union Guardians
    [1897] 1 Q.B. 498 was accepted as establishing that an
    applicant must establish "a legal specific right to ask for the interference of the
    "court" by order of mandamus: per Wright J. at p. 500. I agree with the
    Master of the Rolls in thinking this was a deplorable decision. It was at total
    variance with the view of Lord Mansfield. Yet its influence has lingered on, and
    is evident even in the decision of the Divisional Court in this case. But the tide of
    the developing law has now swept beyond it, as the Court of Appeal's decision
    in Reg. v. Greater London Council, Ex parte Blackburn [1916] 1 W.L.R. 550
    illustrates. In the present case the House can put down a marker buoy warning
    legal navigators of the danger of the decision. As Professor Wade pointed out,
    Administrative Law, 4th Ed. 1977 at p. 610, if the Lewisham case were
    correct, mandamus would lose its public law character, being no more than a
    remedy for a private wrong.

    My Lords, I will not weary the House with citation of many authorities.
    Suffice it to refer to the judgment of Lord Parker C.J. in Reg. v. Thames
    Magistrates' Court, Ex parte Greenbaum,
    Knight's L.G. Reports 129, a case
    of certiorari; and to words of Lord Wilberforce in Gouriet v. Union of Post
    Office Workers
    [1978] AC 435 at p. 482, where he stated the modern position
    in relation to prerogative orders:

    "These are often applied for by individuals and the courts have allowed
    "them liberal access under a generous conception of locus standi".

    The one legal principle, which is implicit in the case law and accurately
    reflected in the rule of court, is that in determining the sufficiency of an
    applicant's interest it is necessary to consider the matter to which the
    application relates. It is wrong in law, as I understand the cases, for the court to
    attempt an assessment of the sufficiency of an applicant's interest without
    regard to the matter of his complaint. If he fails to show, when he applies for
    leave, a prima facie case, or reasonable grounds for believing that there has
    been a failure of public duty, the court would be in error if it granted leave. The
    curb represented by the need for an applicant to show, when he seeks leave to
    apply, that he has such a case is an essential protection against abuse of legal
    process. It enables the court to prevent abuse by busybodies, cranks, and other
    mischief-makers. I do not see any further purpose served by the requirement for
    leave.

    19

    But, that being said, the discretion belongs to the court: and, as my noble and
    learned friend Lord Diplock has already made clear, it is the function of the
    judges to determine the way in which it is to be exercised. Accordingly I think
    that the Divisional Court was right to grant leave ex parte. Mr. Payne's affidavit
    of the 20th March 1979 revealed a prima facie case of failure by the Inland
    Revenue to discharge its duty to act fairly between taxpayer and taxpayer. But
    by the time the application reached the Divisional Court for a hearing, inter
    partes,
    of the preliminary issue, two very full affidavits had been filed by the
    Revenue explaining the "management" reasons for the decision not to seek to
    collect the unpaid tax from the Fleet Street casuals. At this stage the matters of
    fact and degree upon which depends the exercise of the discretion whether to
    allow the application to proceed or not became clear. It was now possible to
    form a view as to the existence or otherwise of a case meriting examination by
    the court. And it was abundantly plain upon the evidence that the applicant
    could show no such case. But the Court of Appeal, misled into thinking that, at
    that stage and notwithstanding the evidence available, locus standi was to be
    dealt with as a preliminary issue, assumed illegality (where in my judgment
    none was shown) and, upon that assumption, held that the applicant had
    sufficient interest. Were the assumption justified, which on the evidence it was
    not, I would agree with the reasoning of Lord Denning M.R. and Ackner L.J.
    I think the majority of the Court of Appeal, in formulating a test of genuine
    grievance reasonably asserted, were doing no more than giving effect to the
    general principle which Lord Mansfield had stated in the early days on the
    remedy. Any more stringent test would, as Professor Wade, op.cit. p. 612
    observes, open up "a serious gap in the system of public law."

    Lastly, I wish to comment shortly upon the duty of confidence owed by the
    Revenue to every taxpayer and the right to discovery. The duty of confidence
    can co-exist with the duty of fairness owed to the general body of taxpayers. It
    is, however, of great importance when discovery is sought by an applicant, as
    happened in this case. Upon general principles, discovery should not be
    ordered unless and until the court is satisfied that the evidence reveals
    reasonable grounds for believing that there has been a breach of public duty:
    and it should be limited strictly to documents relevant to the issue which
    emerges from the affidavits. The Revenue in any event will have the right in
    respect of certain classes of document to plead "public interest immunity", of
    which in a proper case the court will be the arbiter: Burmah Oil Co. Ltd. v.
    Governor and Company of The Bank of England [1980] AC 1090. In the
    present case, had the Federation shown a sufficient interest, I doubt whether
    any legitimate objection could have been taken to discovery of documents
    relevant to the making of the special arrangement. Such documents would be
    unlikely to contain any information about the affairs of any Fleet Street casual
    who had succeeded by various devices in avoiding his identity being discovered
    by the searches of the Revenue. But, be that as it may, discovery can safely be
    left to the discretion of the court guided by the law as I believe it to be.

    The Federation, having failed to show any grounds for believing that the
    Revenue has failed to do its statutory duty, have not, in my view, shown an
    interest sufficient in law to justify any further proceedings by the court on its
    application. Had they shown reasonable grounds for believing that the failure to
    collect tax from the Fleet Street casuals was an abuse of the Revenue's
    managerial discretion or that there was a case to that effect which merited
    investigation and examination by the court, I would have agreed with the Court
    of Appeal that they had shown a sufficient interest for the grant of leave to
    proceed further with their application. I would, therefore, allow the appeal.

    Lord Roskill

    MY LORDS,

    The appellants, The Commissioners of Inland Revenue, seek the reversal of
    an order dated 27th February 1980 made by the Court of Appeal (Lord
    Denning M.R and Ackner L.J. — Lawton L.J. dissenting) declaring that the
    respondents, The National Federation of Self-Employed and Small Businesses
    Ltd. had a "sufficient interest" to apply for judicial review in these proceedings

    20

    against the appellants. In making that declaration the Court of Appeal reversed
    an order of the Divisional Court (Lord Widgery C.J. and Griffiths J., as he then
    was) dated 22nd November 1979 refusing an application for judicial review
    against the appellants, on the ground that the respondents had no such
    "sufficient interest".

    My Lords, these proceedings were begun by the respondents who, on the
    22nd of March 1979, applied ex parte for leave to apply for an order for judicial
    review by way of mandamus and a declaration against the appellants. The ex
    pane
    application was made in due form under Order 53 of the Rules of the
    Supreme Court. The original statement lodged in support of the application
    claimed first, a declaration that the appellants had exceeded their powers in
    granting what was called an "amnesty" to casual workers in Fleet Street, and
    secondly, an order of mandamus directing the appellants to assess and collect
    income tax from those casual workers in Fleet Street "according to law". A
    subsequent amended statement substituted for the original declaration sought a
    declaration that the appellants acted unlawfully in granting that "amnesty". On
    that ex parte application leave was granted. The hearing inter panes took place
    on 21st and 22nd November 1979, when, as I have already stated, the
    respondents' application was refused for want of "sufficient interest".

    When the ex pane application was heard, the only evidence before the
    Divisional Court was an affidavit from a Mr. Payne, a Vice-President of the
    respondents. But on the hearing inter panes the Divisional Court also had long
    affidavits from Sir William Pile, then Chairman of the appellants, and a Mr.
    Hoadley, a Principal Inspector of Taxes. Mr. Hoadley had been personally
    responsible for the negotiations which led to the so-called "amnesty" of which
    the respondents sought to complain. After these affidavits had been sworn and
    before that hearing inter panes the respondents had taken out a summons for
    discovery against the appellants. By agreement, this summons was treated as a
    summons for the discovery of specific documents. On 5th November 1979
    Master Sir Jack Jacob Q.C. dismissed that summons for the reasons given in a
    judgment of which your Lordships have a note. An appeal to the Divisional
    Court from that dismissal was adjourned by agreement pending the final
    determination of these proceedings.

    My Lords, when the matter came before the Divisional Court inter panes it
    was apparently agreed that the question whether or not the respondents had a
    "sufficient interest" to bring these proceedings at all should be dealt with as a
    preliminary point See the judgment of Lord Widgery C. J. reported in [1980] 2
    All E.R. 378 at 382. When the respondents appealed to the Court of Appeal
    that preliminary point was the only issue before that court as it had been before
    the Divisional Court. Moreover, in their printed case, the appellants averred
    that this was the only issue to be determined by your Lordships' House, the
    appellants contending that, as a matter of law, the respondents had no
    "sufficient interest".

    My Lords, your Lordships' House has often protested about the taking of
    short-cuts in legal proceedings, most recently in Allen v. Gulf Oil Refining Ltd.
    [1981] 1 A11 E.R. 353. The number of cases in which it is legitimate to take such
    short-cuts is small and in my opinion the present was not such a case. Indeed,
    many of the difficulties which were canvassed at length in arguments before
    your Lordships' House would have been avoided had this particular short-cut
    not been taken. With profound respect to the Divisional Court, this course was
    especially inappropriate where the grant or refusal of the remedy sought by way
    of judicial review is, in the ultimate analysis, discretionary, and the exercise of
    that discretion and the determination of the sufficiency or otherwise of the
    applicants' interest will depend, not upon one single factor — it is not simply a
    point of law to be determined in the abstract or upon assumed facts — but upon
    the due appraisal of many different factors revealed by the evidence produced
    by the parties, few if any of which will be able to be wholly isolated from the
    others.

    My Lords, much time was spent in the courts below and in argument before
    your Lordships' House with citation of well-known cases, some of now
    respectable antiquity in which prerogative orders or formerly prerogative writs
    have been allowed to issue or have been refused. With all respect to the

    21

    authority of the judges by whom those cases were decided, such decisions are
    today of little assistance for two reasons. First, in the last thirty years — no
    doubt because of the growth of central local government intervention in the
    affairs of the ordinary citizen since the second World War, and the consequent
    increase in the number of administrative bodies charged by Parliament with the
    performance of public duties — the use of prerogative orders to check
    usurpation of power by such bodies to the disadvantage of the ordinary citizen,
    or to insist upon due performance by such bodies of their statutory duties and to
    maintain due adherence to the laws enacted by Parliament, has greatly
    increased. The former and stricter rules determining when such orders, or
    formerly the prerogative writs, might or might not issue, have been greatly
    relaxed. It is unnecessary in the present appeal to trace through a whole series of
    decisions which demonstrates that change in legal policy. The change is well
    known as are the decisions.

    Secondly, since those cases were decided and following the change in legal
    policy to which I have just referred, Order 5 3 was introduced into the Rules of
    the Supreme Court in 1977. For ease of reference I set out the most relevant
    parts of certain of the Rules of that Order.

    "1.—(1) An application for —

    "(a) an order of mandamus, prohibition or certiorari, or
    "(b) ....

    "shall be made by way of an application for judicial review in accordance
    "with the provisions of this Order.

    "(2) An application for a declaration or an injunction (not being an
    "injunction mentioned in paragraph (l)(b)) may be made by way of an
    "application for judicial review, and on such an application the Court
    "may grant the declaration or injunction 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, prohibition or
    "certiorari,
    "(b) the nature of the persons and bodies against whom 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 or injunction to be
    "granted on an application for judicial review.

    "2. On an application for judicial review any relief mentioned in rule
    "1(2) or (2) may be claimed as an alternative or in addition to any other
    "relief so mentioned if it arises out of or relates to or is connected with the
    "same matter.

    "3.—(1) No application for judicial review shall be made unless the
    "leave of the Court has been obtained in accordance with this rule.

    "(2) An application for leave must be made ex pane to a Divisional
    "Court of the Queen's Bench Division, except "

    "(5) The Court shall not grant leave unless it considers that the
    "applicant has a sufficient interest in the matter to which the application
    "relates."

    My Lords, I would make these comments upon Order 53 at this juncture.
    First, the changes thereby effected though seemingly changes in procedure and
    thus made as part of the Rules of the Supreme Court, were and were intended to
    be far-reaching. They were designed to stop the technical procedural arguments
    which had too often arisen and thus marred the true administration of justice,
    whether a particular applicant had pursued his claim for relief correctly,
    whether he should have sought mandamus rather than certiorari, or certiorari
    rather than mandamus, whether an injunction or prohibition, or prohibition
    rather than an injunction or whether relief by way of declaration should have
    been sought rather than relief by way of prerogative order. All these, and the
    like technical niceties, were to be things of the past. All relevant relief could be
    claimed under the general head of "judicial review", and the form of judicial
    review sought or granted (if at all) was to be entirely flexible according to the
    needs of the particular case. The claims for relief could be cumulative or
    alternative under rule 2 as might be most appropriate.

    22

    Secondly, relief by way of declaration, or injunction, was made a form of
    judicial review to be granted in an appropriate case having regard to the factors
    mentioned in rule 1(2). Thirdly, Order 53 took effect on the 11th January 1978,
    some six months after the decision of your Lordships' House in Gouriet v.
    H.M. Attorney-General
    [1978] AC 435, on the 26th July 1977, an authority
    much relied upon by the learned Lord Advocate on behalf of the appellants in
    support of his submissions regarding the circumstances in which declarations
    might be granted. But Gouriet's case was a relator action and was not
    concerned with prerogative orders or judicial review, and the relevant
    observations of your Lordships must be read in the light of that fact and of the
    subsequent enactment of Order 53.

    My Lords, I venture to draw attention to the passage in the speech of my
    noble and learned friend, Lord Wilberforce, at pp. 482/3, where he stated that
    the courts had granted individuals more liberal access in the case of application
    for prerogative writs and orders, and had adopted a more generous concept of
    locus standi in those cases, for the individual was then seeking to enforce a
    public right, and to invite the court to control by use of the prerogative power
    alleged abuse of authority or jurisdiction.

    Fourthly, as already stated, the discretionary nature of the remedy of judicial
    review is emphasised by the fact that rule 3( 1) denies the individual the right to
    apply for judicial review unless leave so to apply has first been obtained ex
    parte.
    Fifthly, the court is enjoined by rule 3(5) not to grant leave unless the
    applicant has a "sufficient interest" in the matter to which the application
    relates, plain words of limitation upon an applicant's right to relief.

    In my opinion it is now clear that the solution to the present appeal must lie in
    the proper application of the principles now enshrined in Order 5 3, in the light of
    modern judicial policy to which I have already referred, to the facts of the
    present case without excessive regard to the fetters seemingly previously
    imposed by judicial decisions in earlier times and long before that modern
    policy was evolved or Order 53 was enacted.

    My Lords, the all important phrase in rule 3(5) is "sufficient interest".
    Learned counsel were agreed that this phrase had not been used in any previous
    relevant enactment. My Lords, careful review of the earlier authorities in which
    learned counsel for both parties engaged, reveals that many different phrases
    have been used in different cases to describe the required standing of a
    particular applicant for what is now described as judicial review before the
    courts would entertain his application. He might be "a party" to the relevant
    proceedings. He might be "a person aggrieved". He might be "a person with a
    "particular grievance". He might be a "stranger". All those, and some other
    phrases, will be found in the cases. None is exhaustive or indeed definitive and
    indeed in this field it would be, I think, impossible to find a phrase which was
    exhaustive or definitive of the class of person entitled to apply for judicial
    review. No doubt it was for this reason that the Rules Committee of the
    Supreme Court in 1977 selected the phrase "sufficient interest" as one which
    could sufficiently embrace all classes of those who might apply, and yet permit
    sufficient flexibility in any particular case to determine whether or not
    "sufficient interest" was in fact shown. So far as the researches of counsel went,
    the origin of this phrase appears to lie in an interlocutory observation made by
    the Court in Reg. v. Gotham [ [1898] 1 Q.B. 802 at 804, and in its use by Avory
    L. in his judgment in Ex parte Stott [1916] 1 K.B. 7.

    Your Lordships' attention was drawn to a note to Order 53 at p. 831 of the
    1979 Annual Practice, which your Lordships were told bore the authority of
    Master Sir Jack Jacob, Q.C. The learned editor stated that that which was a
    "sufficient interest" "appears to be a mixed question of fact and law; a question
    "of fact and degree and the relationship between the applicant and the matter to
    "which the application relates, having regard to all the circumstances of the
    "case." With this admirably concise statement, I respectfully agree.

    The learned Lord Advocate founded his main submission upon section 1 of
    the Inland Revenue Act 1890 which still remains upon the statute book and
    sections 1 and 6 and Schedule 1 to the Taxes Management Act 1970. Those
    statutory provisions, he claimed, defined the relevant duties of the appellants.
    They established not only the appellants' duties, but also their strict obligation

    23

    of confidentiality as between the appellants and each individual taxpayer,
    subject only to the exceptions for which the statutes made express provision.
    The subject-matter of the present application was the alleged liability of others
    to pay income tax and averred a duty upon the appellants to assess and collect
    tax upon the Fleet Street casual workers identified as a class but not
    individually. But, the learned Lord Advocate submitted, the duties of the
    appellants, as circumscribed by these statutes, precluded the possibility of any
    other individual taxpayer, or the respondents as a representative group of other
    taxpayers, from having any "sufficient interest" in the performance by the
    appellants of their statutory duties, vis-a-vis the Fleet Street casual workers, so
    that there was no jurisdiction to grant the respondents the relief which they
    sought. The learned Lord Advocate sought to distinguish the rating cases, such
    as Arsenal Football Club Ltd. v. Ende [1979] A.C. 1, on the ground that in
    rating law there was a statutory duty to publish a valuation list containing
    specific valuations and correct any valuations in that list which might be shown
    to be wrong. Thus there was, under the rating legislation, a community of
    interest between ratepayers which did not exist as between taxpayers. Reliance
    was also placed upon the fact that Mr. Ende's attempt to prove his locus standi
    as a taxpayer as well as a ratepayer failed on the ground that the former interest
    was too remote. Nowhere in the two statutes to which your Lordships were
    referred was there any express provision which recognised any interest by one
    taxpayer in the affairs of another taxpayer, or in the assessment and collection
    of tax on and from such other taxpayer. Unless there was a relevant duty cast by
    statute on the appellants in which the respondents could show a "sufficient
    "interest", there could be no jurisdiction to make an order for judicial review,
    there being no relevant relationship on the part of the respondents to the subject-
    matter of their application.

    My Lords, at an early stage of his submissions, the learned Lord Advocate
    accepted that the question raised in the instant appeal involved the performance
    by the appellants of a public duty. In my opinion that concession (if concession
    be the right word) was clearly properly made. But once it is made, I find it
    difficult to see how it can be said that there is no jurisdiction of the court to allow
    relief against the appellants by way of a judicial review. The appellants are, and
    must as a public body charged with the performance of a public duty of crucial
    importance be, amenable to the general law and liable to possible correction if
    their statutory powers are exceeded, or their statutory duties are not lawfully
    discharged. But to say that, and to accept that there is jurisdiction to grant relief
    against the appellants in a proper case, is a very different matter from saying
    that in the instance case relief should be granted to the respondents as being
    possessed of that "sufficient interest" which is a condition precedent to their
    obtaining the relief which they seek.

    Mr. Harvey Q.C., for the respondents, contended that not only was there
    jurisdiction to grant the relief sought but that his clients had a "sufficient
    "interest" to be granted that relief because once it was accepted that the
    appellants were a statutory body charged with the performance of a public duty,
    any member of the public had a right to come to the court and complain that that
    duty had not been performed in some relevant respect, and that this right of that
    member of the public did not depend upon the precise nature of the obligation
    cast by the statute upon the appellants. More narrowly, Mr. Harvey argued that
    an individual taxpayer had as much interest in the performance by the
    appellants of their statutory duty as the ratepayer in Ende's case, and was not
    too remote from the appellants in seeking to insist upon performance of their
    duty in accordance with the law, a submission which found favour in the Court
    of Appeal with Ackner L.J. Ultimately Mr. Harvey did not go so far as to assert
    that the appellants' statutory duty required them in every case to exact every
    penny which might be lawfully exigible from each individual taxpayer, but he
    asserted that there was already some evidence in the present case, and that after
    discovery against the appellants there might well be further evidence, that in
    granting the so-called "amnesty" and in agreeing to forego collection of past
    arrears of tax from the Fleet Street casual workers, the appellants had been
    moved by impermissible influences such as fears of industrial action in Fleet
    Street, and thus had failed to perform the statutory duties with which they were
    charged in accordance with the law. Hence, he argued that the relief sought
    should be granted. These casual workers, it was said, had defrauded the general

    24

    body of taxpayers, and it was the right of the respondents as the representatives
    of a substantial body of taxpayers who like others were adversely affected by
    these frauds by the casual workers not only escaping the normal consequences
    of such fraud but positively gaining as a result of the "amnesty", to complain
    and to seek strict enforcement of the appellants' statutory duty to assess and
    collect the tax due from these casual workers.

    My Lords, the learned Master of the Rolls was willing to accept the wider of
    these propositions founded upon what he had previously said in McWhirter's
    case, [1973] Q.B. 629 at 646, and again in a revised form in Blackburn's case
    [1976] 1 W.L.R. 550 at 559. He accepted that my noble and learned friend,
    Lord Wilberforce, had expressly disapproved the former passage in his speech
    in Gouriet's case [1978] A.C. at p. 483 but claimed that that disapproval was
    limited to relator actions such as Gouriet's case was. My Lords, with profound
    respect I cannot agree. Though my noble and learned friend's disapproval was,
    of course, made in the context of a relator action, the view of the learned Master
    of the Rolls, if applied to all applications for judicial review, would extend the
    individual's right of application for that relief far beyond any acceptable limit,
    and would give a meaning so wide to a "sufficient interest" in Order 53 rule 3(5)
    that they would in practice cease to be, as they were clearly intended to be,
    words of limitation upon that right of application.

    More powerful support for Mr. Harvey's narrower submission is to be found
    in the judgment of Ackner L.J. The learned Lord Justice found it impossible to
    distinguish between the position of a ratepayer who was entitled to the relief
    sought as, for example, in Ende's case, and a taxpayer who, it was said, was not
    entitled to the like relief. The test, according to the learned Lord Justice, was
    whether the assertion of the grievance could be justified on reasonable grounds.

    Both the learned Master of the Rolls and Ackner L.J. proceeded on the basis
    that it should be assumed (the Master of the Rolls went so far as to say that it
    was a matter of concession) that the appellants had acted unlawfully because
    they had no dispensing power. My Lords, there was certainly some confusion in
    the Court of Appeal as to what was conceded or what was to be assumed, a
    confusion not resolved before your Lordships' House. But whatever may have
    been assumed or conceded, or thought to have been assumed or conceded in the
    Court of Appeal, the learned Lord Advocate was not prepared to invite the
    making of any assumption or to make any concession before your Lordships'
    House, and I think he was right to adopt this attitude. For my part, I decline in a
    matter of this kind to make any assumption of any kind, let alone an assumption
    of illegality on the part of the appellants. This appeal must be determined on the
    totality of the evidence as it was before the Divisional Court and the Court of
    Appeal. No question of any dispensing power is involved. The appellants were
    in no way arrogating to themselves a right or inviting assumption of an
    arrogation to themselves of a right not to comply with their statutory obligations
    under the statutes to which I have referred. On the contrary, their whole case
    was that they had made a sensible arrangement in the overall performance of
    their statutory duties in connection with taxes management, an arrangement
    made in the best interests of everyone directly involved and, indeed, of persons
    indirectly involved, such as other taxpayers, for the agreement reached would
    be likely to lead ultimately to a greater collection of revenue than if the
    agreement had not been reached or "amnesty" granted.

    My Lords, with profound respect to both courts below I do not think that
    either approached this application for judicial review on a correct basis in point
    of law. In my opinion the Divisional Court was wrong for the reasons I have
    given for refusing relief for they dealt with the relevant issue as a matter of
    jurisdiction and not as one of overall discretion. I also think that the majority of
    the Court of Appeal was wrong in granting the relief claimed either on the wider
    ground the learned Master of the Rolls preferred or on the narrower ground
    which appealed to Ackner L.J.

    My Lords, I hope I yield to no one in stressing the importance that relief by
    way of judicial review should be freely available in whatever form may be
    appropriate in a particular case, and it is today especially important not to cut
    down by judicial decision the scope of Order 53 in creating modern procedure
    for applications for judicial review. I emphasise in particular that relief by way

    25

    of declaration is expressly made a form of judicial review additional to or
    alternative to relief by way of prerogative order or injunction. The court has a
    general discretion which, if any, relief shall be granted and many of the old
    decisions restricting the circumstances in which declarations may be granted to
    establish legal rights seem to me to be no longer in point. On the other hand, it is
    equally important that the courts do not by use or misuse of the weapon of
    judicial review cross that clear boundary between what is administration,
    whether it be good or bad administration, and what is an unlawful performance
    of the statutory duty by a body charged with the performance of that duty. If the
    body against which an order of judicial review is sought is for some reason not
    amenable to such an order, then clearly there is no jurisdiction to allow the order
    to go. But once that body is admitted to be, as the appellants are admitted to be,
    a statutory body charged with the performance of a public duty, then it is clear
    that there is jurisdiction to grant an order of judicial review in a proper case; and
    to the extent that the learned Lord Advocate contended otherwise, I reject his
    argument. But the arguments that he advanced on jurisdiction which I have
    rejected become highly relevant when the question of "sufficient interest"
    arises. The first question must be to enquire what is the relevant duty of the
    statutory body against which the order is sought, of the performance or non-
    performance of which complaint is sought to be made. For that I turn to the
    sections of the statutes upon which the learned Lord Advocate relied. The
    appellants are responsible for the overall management of the relevant part of the
    taxation system of this country, and for the assessment and collection of taxes
    from those who are, by law, liable to pay them. Such assessment and collection
    is a confidential matter between the appellants and each individual taxpayer.
    Such confidence is allowed to be broken only in those exceptional circumstances
    for which the statute makes express provision.

    The next matter is to consider the complaint made and the relief sought.
    It is clear that the respondents are seeking to intervene in the affairs of
    individual taxpayers, the Fleet Street casual workers, and to require the
    appellants to assess and collect tax from them which the appellants have clearly
    agreed not to do. Theoretically, but one trusts only theoretically, it is possible to
    envisage a case when because of some grossly improper pressure or motive the
    appellants have failed to perform their statutory duty as respects a particular
    taxpayer or class of taxpayer. In such a case, which emphatically is not the
    present, judicial review might be available to other taxpayers. But it would
    require to be a most extreme case for I am clearly of the view, having regard to
    the nature of the appellants' statutory duty and the degree of confidentiality
    enjoined by statute which attaches to their performance, that in general it is not
    open to individual taxpayers or to a group of taxpayers to seek to interfere
    between the appellants and other taxpayers, whether those other taxpayers are
    honest or dishonest men, and that the court should, by refusing relief by way of
    judicial review, firmly discourage such attempted interference by other
    taxpayers. It follows that, in my view, taking all those matters into account, it
    cannot be said that the respondents had a "sufficient interest" to justify their
    seeking the relief claimed by way of judicial review.

    I have already said that the court must not cross that boundary between
    administration whether good or bad which is lawful, and what is unlawful
    performance of a statutory duty. Much time was spent upon considering the
    relevance of the Parliamentary Commissioner Act 1967. My Lords, I shall
    spend no time upon its provisions, for it deals with the injustices caused by
    maladministration. The remedy thereby accorded to the individual citizen may
    be very effective in a proper case, but the existence of that remedy seems to me
    irrelevant to the question now under consideration which depends not upon
    allegations of maladministration leading to injustice, but upon allegations of
    illegality in the performance of statutory duties. I doubt whether in considering
    whether legal redress by way of judicial review should be granted, it is in any
    way relevant to consider the existence of this other mode of redress of other
    grievances. Certainly, as at present advised, I do not consider the existence of
    this other mode of redress can narrow the field in which judicial review if
    otherwise proper is available. The latter is a remedy available from Her
    Majesty's courts for the purpose of redressing legal wrongs. The former has a
    wholly different origin and is designed to redress administrative wrongs, not
    remediable in the courts.

    26

    I ought, however, to deal with the further question whether even if (contrary
    to my opinion) the respondents could show a "sufficient interest" there is
    anything in the evidence as a whole allowing the respondents to interfere by way
    of obtaining an order of judicial review. I have already considered the scope of
    the appellants' duties and the nature of the complaint which they make. It is at
    this point that the answer to this complaint becomes relevant and ought to have
    been, but was not, considered by the Divisional Court To my mind it is clear
    beyond argument when one reads the affidavits of Sir William Pile and Mr.
    Hoadley that what was done was a matter of taxes management, and I can see
    no shadow of dereliction of duty by the appellants, or any suggestion of
    improper or unlawful conduct on their part. On the contrary, what they did
    seems to me to have been a matter of administrative common sense. Instead of
    wasting public time and money in seeking to collect taxes from persons whose
    names were unknown and whose ability to pay was therefore equally unknown,
    they made an arrangement which enabled taxes not hitherto able to be collected
    or in fact collected, collectable in the future at a cost to the general body of
    taxpayers of foregoing the collection of that which in reality could never have
    been collected.

    In my view the Divisional Court ought in the exercise of its discretion to have
    dismissed this application, not for want of jurisdiction to grant it, but because, on
    the evidence as a whole, first no "sufficient interest" was shown and, secondly,
    because in any event the application could not possibly succeed. Since that
    court did not exercise its discretion, and since the majority of the Court of
    Appeal was, in my view, wrong in law in making the declaration which was
    there granted and therefore did not exercise the discretion vested in that court, I
    think it open to your Lordships' House to exercise the discretion which ought to
    have been exercised in the first instance by the Divisional Court. On that basis I
    would dismiss the application for judicial review thus reaching the same result
    as did Lawton L.J. in his dissenting judgment in the Court of Appeal.

    I would only add that Mr. Harvey urged that something advantageous to his
    clients might emerge upon discovery. He submitted that your Lordships ought
    not to dispose of this appeal on the basis of the affidavit evidence alone. My
    Lords, the respondents started these proceedings on the basis of an affidavit
    which was fully answered by the two affidavits to which I have just referred.
    With all respect to Mr. Harvey's argument I can see no reason to allow the
    respondents what I am afraid I must necessarily regard as a fishing expedition in
    the hope of obtaining on discovery something which might counter that which
    appears so clearly from the affidavits filed on behalf of the appellants.

    My Lords, since preparing this speech, I have had the advantage of reading in
    draft the speeches of my noble and learned friends, Lord Wilberforce and Lord
    Fraser of Tullybelton. I am in full agreement with what both my noble and
    learned friends have said.


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