Case No: CO/970/2001
Neutral Citation Number: [2002] EWHC 182 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 14th February 2002
B e f o r e :

THE HONOURABLE MR. JUSTICE MOSES

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	ADRIAN JOHN WILKINSON		Claimant	
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	THE COMMISSIONERS OF  INLAND REVENUE	Defendant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Miss Dinah Rose and Mr. Philip Baker (instructed by Liberty for the Claimant)

Mr. Timothy Brennan QC and Miss Ingrid Simler (instructed by the Solicitor of Inland Revenue for the Defendant)

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Judgment
As Approved by the Court
Crown Copyright ©

Mr Justice Moses:

INTRODUCTION

1.	The claimant is a widower whose wife died on 23 June 1999.  By letter dated 13 November 2000, he claimed from the Inland Revenue a sum equivalent to Widow’s Bereavement Allowance. He described it as a “widower’s bereavement payment”.  Under Section 262 of the Income and Corporation Taxes Act 1988 (“ICTA”) an allowance known as Widow’s Bereavement Allowance (“WBA”) is available to a widow for the year of assessment in which her husband dies, and the following year.  Section 262 makes no express provision for any equivalent reduction in income tax to widowers.  By Section 34 of the Finance Act 1999 WBA was abolished in relation to deaths occurring on or after 6 April 2000.

2.	This claim raises issues similar to those raised in the applications of Hooper, Withey and others.  Although I heard argument before hearing that case, I have drafted this judgment after drafting the judgment in that case.  This judgment should be read in the context of my reasoning and conclusions in that case.  This case raises similar issues in relation to discrimination under Article 14 read with Article 1 of the First Protocol of the Convention, the treatment of a claim brought in Strasbourg and as to the provisions of Section 6 of the Human Rights Act 1998.

THE FACTS

3.	Mr Wilkinson was prompted to make his claim because the Government, shortly before, had reached a friendly settlement with another widower, Mr. Crossland.   Mr. Crossland brought a complaint in 1997 before the European Commission of Human Rights alleging breach of Article 14 read with Article 8 and Article 1 of the First Protocol.  The Government did not contest the admissibility of that claim which was declared admissible on 8 June 1999.  Thereafter it reached a friendly settlement paying him a sum representing the full amount he would have been paid had WBA been available to men at the date of his wife’s death and the sum of just under £4,000 in legal costs.  After Mr. Wilkinson had made his claim on 13 November 2000, on 11 December 2000 the defendants refused his claim asserting that there was no basis in domestic law for allowing widowers to claim WBA.

4.	On 5 March 2001, in response to an invitation to allow Mr. Wilkinson his claim or an extra-statutory equivalent (see letter dated 27 February 2001), the defendants asserted that their care and management powers did not allow them to contradict unambiguous primary legislation, such as the provisions of Section 262.  They said:-
“The Board’s care and management powers allow us to make relaxations which give taxpayers a reduction in liability to which they are not entitled under the strict letter of the law.  Most concessions are made to deal with what are, on the whole, minor or transitory anomalies under the legislation and to meet cases of hardship at the margins of the code where a statutory remedy would be difficult to devise or would run to a length out of proportion to the intrinsic importance of the matter.  

……………	

The care and management powers do not allow the Inland Revenue to contradict unambiguous, primary legislation, such as the provisions that govern entitlement to WBA.  The Human Rights Act makes it unlawful for a public authority to act in a way that is incompatible with the Convention right unless it is required to do so by primary legislation.”

THE STATUTORY PROVISIONS

5.	Section 262(1) provides:

“Where a married man whose wife is living with him dies, his widow shall be entitled –

(a) for the year of assessment in which the death occurs, to an income tax reduction calculated by reference to an amount equal to the amount specified in Section 257A(1) for that year, and 

(b) (unless she marries again before the beginning of it) for the next following year of assessment [to a similar amount]”.

6.	No justification for the continuing grant of an allowance up to 6 April 2000 has been offered.  But I should mention, briefly, that evidence has been given by Sarah Walker, an Assistant Director of personal tax, which places the allowance in its historical context within the tax system. 

7.	WBA was originally introduced to improve equality of treatment, in the context of taxation, between husbands and wives.  It was designed to mitigate the effects of a bereaved husband’s more favourable treatment under the regime for married couple’s allowance.  In the past the income of husband and wife was aggregated for income tax purposes on the basis that taxable capacity depended upon the amount of income which accrued to the married couple.  Independent taxation of husband and wife was introduced in 1990-1 by the Finance Act 1988.  Before independent taxation was introduced, a husband was entitled to a Married Man’s Allowance and, if applicable, wife’s earned income relief.  But on his death a wife would be taxable in her own right and entitled to claim Single Person’s Allowance.  WBA was introduced to compensate for the fact that if a husband died early in a tax year, his widow would only be entitled to a Single Person’s Allowance whereas a husband would continue to receive the higher Married Man’s Allowance in the year of his wife’s death.  It was extended in 1983 to the year of assessment following the year of death because if a husband died towards the end of a tax year, a wife would often not have sufficient income in the remainder of that year to use the allowance in full.  After independent taxation had been introduced in 1990 to 1991, tax allowances including Married Couple’s Allowance (made available to women by election in 1993-4) and WBA were reduced as the Government began to focus support on children and families.  I should emphasise, again, that the historical context of WBA is not offered as a basis for objective justification of the undoubted discrimination between husbands and wives.

ISSUES
8.  This case gives rise to the following issues:-
(1)	Whether the grant of WBA to widows but the refusal to provide an equivalent income tax reduction to widowers in identical circumstances on grounds of gender was a breach of Article 14 read with Article 1 of the First Protocol to the Convention;

(2)	Whether the defendants have power to afford to the claimant an extra-statutory income tax reduction equivalent to WBA;

(3)	Whether the defendants are obliged to grant such a reduction to the claimant pursuant to Section 6(1) of the Human Rights Act 1998 (“the 1998 Act”) or whether the defendants’ refusal falls within the scope of Section 6(2) of the 1998 Act;

(4)	Whether the defendants are obliged, as a matter of fairness, at common law, to give the allowance to widowers in the light of the friendly settlement of Mr. Crossland’s case in Strasbourg.

FIRST ISSUE: DISCRIMINATION WITHIN ARTICLE 14

9. Since this is a separate judgment, it may be convenient to set out again the provisions of Article 14 which provides:-
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex…..or other status”.

10. As I recalled, in my judgment in Hooper, Withey and Others, in order to establish a breach of Article 14, a claimant must establish that the facts of the case come within the ambit of other provisions of the Convention.  Article 1 of the First Protocol provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions.  No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provision shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary….to secure the payment of taxes or other contributions or penalties”.

11. Although Mr. Brennan QC on behalf of the Inland Revenue argued faintly to the contrary, it seems clear to me that this case falls within the ambit of Article 1 of the First Protocol.  It concerns the payment of taxes.  Dr. Darby claimed repayment of tax he had paid as a result of discriminatory Church Tax imposed in Sweden in Darby v Sweden 13 EHRR 774.  The Court observed that the second paragraph of Article 1 of the First Protocol establishes that the duty to pay tax falls within its field of application. (see paragraph 30, page 781)

12. It is clear that the refusal to grant an income tax reduction to men in a similar situation to women, is a breach of Article 14 read with Article 1 of the First Protocol in the absence of any objective justification advanced for such discrimination.
EXTRA-STATUTORY CONCESSIONS
13. The claimant contends that the defendants have power to grant Mr. Wilkinson an extra statutory allowance in the form of a reduction of tax to which he is not entitled under what is described in the skeleton argument (paragraph 44) as “the strict letter of the law”.  That power is derived from Section 1 of the Taxes Management Act 1970.  The exercise of that power is demonstrated by the extra statutory concessions which appear to have numbered 272 by 31 August 1999.

14. Section 13(1) of the Inland Revenue Regulation Act 1890 imposes a duty upon the Commissioners to:-
“collect and cause to be collected every part of inland revenue, and all money under their care and management, and shall keep distinct accounts thereof at their chief office.”

15. This duty is subject to the power conferred by Section 1(1) of the Taxes Management Act 1970 which provides:-

“Income tax, corporation tax and capital gains tax shall be under the care and management of the Commissioners of Inland Revenue”.

16. The Inland Revenue itself exposed the force of that power when it relied upon Section 1(1) as statutory justification for its failure to levy tax due from “Mickey Mouse of Sunset Boulevard” and other Fleet Street casuals in Commissioners of Inland Revenue v National Federation of Self Employed and Small Businesses Ltd. [1982] AC 617.  The statutory shield used in that case has been adopted as a sword by taxpayers in many cases which followed.

17. It is not surprising that few, if any taxpayers, have asserted that the Inland Revenue has no power to make extra statutory concessions.  The nearest a taxpayer approached that “foot-shooting” operation, was in R v Inspector of Taxes Ex Parte Fulford-Dobson [1987] 1 QB 978 in which McNeill J. accepted the lawfulness of the power to make extra statutory concessions.

18. There was much debate as to the extent of the power to make such concessions.  They are introduced with the words:-
“An extra statutory concession is a relaxation which gives taxpayers a reduction in tax liability to which they would not be entitled under the strict letter of the law.  Most concessions are made to deal with what are, on the whole, minor or transitory anomalies under the legislation and to meet cases of hardship at the margins of the code where a statutory remedy would be difficult to devise or would run to a length out of proportion to the intrinsic importance of the matter.”

19. Sarah Walker adds:-
“The Board would consider it appropriate to use its power to make ESCs where the result would be consistent with the intention of Parliament in passing the relevant legislation”. (see paragraph 41 of her statement)

20. Miss Dinah Rose, on behalf of the claimant, countered with a reference to Whiteman on Income Tax which reads:-
“In certain situations where the law is clear, if it is either considered to be unfair to taxpayers, or its application involves serious administrative difficulties, the Revenue do not enforce the strict letter of the law”.

21. The argument raged around four extra statutory concessions which, Miss Rose contended, demonstrate that the introduction to the published concessions is not comprehensive.  There are extra statutory concessions which cannot be described as being at the margins of the code or merely to meet minor or transitory anomalies in the legislation.  This submission has a promising beginning since the passage relied upon by the defendants refers to most concessions and, consistently, asserts that they are “on the whole” to deal with minor or transitory anomalies…

22. A5 provides in part:-
“In practice no assessment is made in respect of removal expenses borne by the employer where the employee has to change his residence in order to take up a new employment…” .

23. A5 deals with cases where an arrangement has been made to relocate before the date when new tax rules were promulgated.  The law was changed so as to provide that such expenses would not be assessable as emoluments after 6th April 1993 by virtue of Section 76 and Schedule 5 of the Finance Act 1993 which inserted new provisions into ICTA 1988.  The revisions were not retrospective.  Nor, contrary to Mr. Brennan QC’s contention, were the provisions of A5 transitory.  They continued to have effect in relation to removal expenses, assessable as emoluments under the substantive law, incurred in respect of years of assessment prior to 6th April 1993.  Thus A5 continued to have effect even after Parliament had entered the field by legislation.  The provisions cannot be regarded as minor or transitory and, as it seems to me, contradicted the intention of Parliament which chose not to make any retrospective enactment but left the substantive law in force which rendered such expenses assessable as emoluments in years of assessment prior to the coming into force of Section 76 of the 1993 Finance Act.

24. A81 relieves from tax, in certain circumstances, payments of costs to former employees or office holders incurred in recovering compensation for loss of employment, whether those costs are incurred in an action or by way of settlement.  Such costs are chargeable to tax under the provisions of Section 148 ICTA 1988.  A number of specific exemptions were made in Section 188 ICTA.  The code was amended but not so as to remove such legal costs from charge to tax in Section 58 and Schedule 9 of the Finance Act 1998.  Thus income tax liability has been reduced in a manner not provided for in primary legislation.

25. A82 extends the right to repayment supplement under Section 824 ICTA 1988, beyond residence in the United Kingdom to residents in a member state of the EU.  It was prompted by the decision in Commerzbank [1993] STC 605 but, it was argued, it went wider than was necessary as a result of the decision of the European Court of Justice because it provides for repayment supplement even to those who may not be seeking to exercise their rights of freedom of movement or establishment. However, those entitled to repayment supplement, who were resident in a member state of the EU, will have paid income tax in the United Kingdom and will thus be likely to have been exercising their right to freedom of movement or establishment.  I do not think that this concession affords as good an example as the other two of the wide scope of the power to issue extra statutory concessions.

26. It was further contended that A25 which relieves from the United Kingdom tax, charges on emoluments earned by those locally engaged abroad or un-established staff working abroad who are not resident in the United Kingdom where the maximum rate of pay is less than that of an executive officer in the United Kingdom Civil Service working in Inner London.  The purpose of the concession was to avoid double taxation.  True it is that double taxation could have been avoided by adopting Article 19 of the OECD Model Tax Convention (as has occurred in the U.K.-Norway Double Taxation Convention).  But it does not seem to me that this concession affords any example of defiance of Parliamentary intention or alleviating hardship at the margins.

27. The essential quest ought, in my view, to be targeted on finding some principled distinction between extra-statutory concessions and the concession sought in this case.  I can find none.  Once it is accepted that there are extra-statutory concessions which are not merely temporary, are not merely of minor effect, but directly contradict the intention of Parliament expressed in statutory provisions, it becomes impossible to find any principle according to which in some cases the Revenue will grant a concession and in others they will not.  It was, in part, these considerations which have led, in the past, to considerable judicial criticism of the practice of the Revenue in making such concessions.  True, Walton J’s criticism of extra statutory concessions in Vestey v Inland Revenue Commissioners (No.2) [1969] Ch.198 was tempered by the fact that they were published. But the view of Lord Edmund-Davies in Vestey [1980] AC 1148, 1194, that it was high time to consider the basis of the power of the executive to make extra statutory concessions, has been ignored for over 20 years.  It is their haphazard nature, uncontrolled by any clear principle, promulgated as they are by the executive and not by the legislature, which justifies the criticism.   Mr. Brennan QC’s reliance on the principle that it is Parliament which should allocate resources, and not the Court, seems weak when the executive has so persistently ignored that principle.  Taxation by the executive, and not by the elected, has led to war; it seems anomalous that the courts should be invited to adopt a less militant attitude when tax has so often been relieved on the ukase of the executive.

28. Mr Brennan QC asserts that the Revenue’s managerial discretion does not extend so wide as to re-distribute tax by making payments on an extra statutory basis.  To do so would contradict the intention of Parliament which specifically refused to extend WBA to widowers (see the rejection of the amendment No.14 in Standing Committee during the passage of the Finance Bill 1998, (paragraphs 45-46 of Sarah Walker’s Statement)).  It seems to me that Mr. Brennan QC’s reliance upon the fact that Parliament chose not to introduce retrospective legislation when it abolished WBA in 1999 may be relevant to issues arising under Section 6 of the Human Rights Act 1998, but does not affect the question of the width of the power to issue extra statutory concessions. I conclude that there is no principle which would prevent the Revenue from issuing an extra statutory concession which contradicted the intention of Parliament to restrict the allowances to women.

29. Miss Rose additionally relied upon Section 3 of the HRA 1998 for the purposes of construing the width of the power conferred in Section 1 of the TMA 1970.  She contended that there was nothing in Section 1(1) which made it impossible to include a power to grant an extra statutory concession where failure to grant such a concession would lead to a violation of the Convention.  Construing Section 1 of the 1970 Act in accordance with Section 3 of the 1998 Act, power is conferred on the Revenue to manage the tax system in a manner compatible with the Convention rights, absent any clear prohibition within the primary legislation.  I shall consider later the contention that Section 262 prohibits allowances to widows, but, for the time being it is, in my view, unnecessary for the claimant to rely upon Section 3.  The power under Section 1 is wide enough to permit the Revenue to grant an extra statutory concession where failure to do so would lead to a violation of the taxpayer’s Convention rights.  ESC A82 is an example of the exercise of the power to remove a breach of Community law.  I see no reason why the power conferred by Section 1(1) does not at least have sufficient scope to include a power to rectify breaches of Convention law.

IS THE REVENUE UNDER A LEGAL DUTY TO GIVE AN EXTRA STATUTORY ALLOWANCE PURSUANT TO SECTION 6(1) OF THE HRA 1998?

30. The Revenue’s primary contention is that as the result of Section 262 ICTA 1988, it could not have acted differently and consequently its refusal to confer an extra statutory allowance is not unlawful under Section 6(1) of the 1998 Act.  The primary legislation makes it clear that bereavement allowances are only to be conferred on widows.  The Revenue was accordingly bound to refuse Mr. Wilkinson an allowance in the Tax Year 1999/2000.  It is plain that in that year of assessment, the allowance could not lawfully have been given.  Once tax was paid, without the benefit of a surviving spouse’s allowance, there could be no lawful claim for repayment of the tax pursuant to Section 42 and Schedule 1A of the Taxes Management Act 1970.   Mr. Wilkinson has no claim to repayment of tax.  His claim is thus to an extra statutory allowance equivalent to the sum to which he would have been entitled had he a lawful claim for repayment.

31. The Revenue primarily relies upon Section 6(2)(a) of the HRA 1998.  This contention is consistent with its submissions that it had no power to grant an extra statutory concession to Mr. Wilkinson.

32. Miss Rose contends that there is no express prohibition on the provision of an extra statutory allowance to widowers.  Applying the interpretative obligation in Section 3(1), Section 262 may be construed as being silent as to the power to afford an extra statutory allowance to widowers. By implication, she says, it may be read as permitting such an allowance to be made where to refuse it would violate the Convention rights of widowers.  To construe the provision, alternatively, as containing an implicit prohibition, ignores the statutory obligation in Section 3.

33. Since I have concluded that the Revenue does have power to afford a bereavement allowance to widowers by way of an extra statutory concession, I do not think that Section 6(2)(a) can be relied upon.  The Revenue could have acted differently.  I accept, for the reasons I have given above, that Section 262 is to be read as subject to the care and management power contained in Section 1(1) of the TMA 1970.  Section 262 contains no prohibition on the exercise of that power.  It is in that respect similar to many other provisions of the 1988 Act onto which must be grafted the power contained in Section 1(1) of the TMA 1970.  But it is important, for reasons which will appear, to appreciate that whilst Section 262 does not prohibit the exercise of the power under the TMA 1970, it cannot be read as imposing a duty to afford an extra statutory bereavement allowance to widowers.  So to construe Section 262 would, in my judgment, be impossible.  To construe Section 262 as imposing a duty to afford such an allowance would be to ignore the references to “married man” and “wife” and “him”.

34. My conclusion that the Revenue cannot rely upon Section 6(2)(a) gives rise to the issue as to whether it can rely on Section 6(2)(b).

35. In written submissions, triggered by the submissions of Mr. Sales in Hooper and Others, Miss Rose contends that the Revenue cannot rely upon Section 6(2)(b).  Her essential submission is that the second limb of Section 6(2)(b) does not arise because the primary legislation can be read or given effect in a way which is compatible with Convention rights.  Section 6(2)(b) only operates where the statute can only be read as granting a power to a public authority to act in a manner necessarily incompatible with the Convention.  In the instant case she contends that Section 262 read with Section 1(1) of the TMA 1970 does not empower the public authority to act in a manner which is necessarily incompatible with the Convention but, on the contrary, empowers the Revenue to act in a manner which is compatible.  She relies upon the proposition that where a statute apparently provides a general power to a public authority to perform acts, some of which might breach Convention rights, it must be read down so that it only authorises the exercise of the power in question in a manner compatible with the Convention.  If statutory powers, construed in accordance with Section 3 of the HRA 1998, can be exercised in a manner compatible with Convention rights, they may not be exercised in a manner incompatible with those rights.  Section 6(2)(b) can only be relied upon in circumstances where any exercise of the power would involve a breach of Convention rights (see paragraph 4.22 of ‘Human Rights: the 1998 Act and the European Convention’: Grosz Beatson and Duffy [2000]).

36.	The Revenue contend that Section 262 authorises them to refuse an allowance to widowers notwithstanding its power to do so under Section 1 TMA.  But Section 262, in my view, provides no authority at all.  It imposes an obligation to afford a tax allowance to widows.  The incompatibility may be said to arise because there is no similar duty to afford such an allowance to widowers.

37. It does not seem to me to matter whether the power to afford an extra statutory allowance to widowers is to be derived from Section 262 or from Section 1 of the TMA 1970.  The important question arises, as it seems to me, as to whether that for which Miss Rose contends is in reality a power at all or whether, in fact, it amounts to the imposition of a duty on the Revenue.  It is this issue which to my mind determines the question whether the Revenue can rely upon Section 6(2)(b).

38. As in Hooper and others it is necessary to turn to dicta in three cases. Two of those cases, R(Holding and Barnes PLC) v SSETR now known as Alconbury [2001] JPL 291 and R v Kansal (q.v.supra ) support the proposition in Grosz :- 
“If any exercise of the power would involve a breach of Convention rights, the position is covered by the second part of the exception in Section 6(2)(b)……” 

39. The third case, Friends Provident Life Office v SSETR [19.10.2001] demonstrates the converse of the proposition : Section 6(2)(b) may not be relied upon where the power may, in some circumstances, be exercised in a manner compatible with the Convention. I turn to these three cases in greater detail.

40.  In Kansal, the appellant and intervener sought to finesse Section 6(2)(b) by contending that where a statute confers a power, compatibility may be achieved by refraining from exercising the power altogether. Section 433 of the Insolvency Act 1986 authorised, but did not compel, a prosecutor to use evidence obtained as a result of compulsory questioning.  It was argued that effect could be given to Section 433 of the 1986 Act by exercising a choice not to adduce such evidence.  Lord Hope responded:-
“In my opinion, however, the question whether or not the prosecutor was giving effect to Section 433 of the 1986 Act within the meaning of Section 6(2)(b) does not depend on whether he had a discretion as to whether or not to use these answers in evidence.  The question is whether, having decided to use the answers and invite the judge to hold them to be admissible, he is doing what he was authorised to do by Section 433.  It seems to me that there can only be one answer to this question.  According to the traditional rules of construction by reference to which at the time that provision was to be interpreted, Section 433 authorised him to lead and to rely on that evidence.  He was entitled also to give effect to Section 433 by asking the judge to hold that in terms of that section, the evidence was admissible.” (see paragraph 88).

41.  Miss Rose points out that Lord Hope’s observations are founded on traditional rules of construction applied to Section 433.  She contends that the result would be different now that Section 3 of the 1998 Act has been enacted.  I do not think it wise for me to make observations on the correctness of that submission, but I do accept Kansal is an example of a case where an exercise of the power conferred by the statutory provision would inevitably lead to incompatibility with the Convention.

42. In the Divisional Court in Alconbury [2001] JPL 291, the court considered the power of the Secretary of State to call in planning appeals under Section 77 of the Town & Country Planning Act 1999. In certain planning appeals the Secretary of State had a discretion as to whether the planning application should be called in.  This was not an issue which fell for decision by the House of Lords in the light of their conclusion that the Secretary of State’s function in deciding appeals was not incompatible with Article 6. The Divisional Court concluded that once a planning application was called in, a breach of Article 6 would be inevitable. The power to call in could never be exercised in a way which was compatible with Convention rights.  Accordingly the court concluded:-
“We do not think it is legitimate to read down a legislative provision so as to extinguish it.”

43. Both cases are examples of powers which could only be given effect to in a manner which was incompatible with the Convention and thus engaged Section 6(2)(b).

44. But there will be cases where the exercise of a power will not necessarily lead to incompatibility and thus “reading down” the legislative provision conferring the power will not extinguish it.  The observations of Forbes J. in Friends Provident Life Office illustrate that proposition.  In that case the court considered the power of the Secretary of State to refuse to call in a planning application.  Part of Forbes J’s judgment (which did not fall strictly for decision in the light of his conclusions on other issues) highlights the importance of considering whether a discretion, conferred by a statute, must inevitably be extinguished in order to achieve compliance with the Convention. The claimant successfully contended that the Secretary of State’s discretion to refuse to call in a planning application under Section 77 would not be removed.  He did not always have to call in a planning application to ensure compliance with Article 6.  The obligation to call in a planning application so as to ensure compliance with Article 6 would only arise in some cases, for example, where there were significant issues of fact to be decided.  Thus the discretion remained largely intact.  Forbes J. agreed that not every refusal by the Secretary of State to exercise his discretion to call in a planning application would necessarily be incompatible with Article 6.  Thus Section 6(2)(b) did not arise. (See paragraphs 98 and 100). Friends Provident is an example of a case where legislative provisions conferring a power can be given effect to in a compatible manner, whilst preserving, and not destroying, the discretion conferred by the statute.

45. This case differs from Alconbury and Kansal. Grafted onto the provisions of Section 262, whether by the application of Section 3 of the HRA 1998 or under Section 1 of the TMA 1970, a power exists to make an allowance to widowers.  The legislative provisions of Section 262 impose a duty to grant allowances to widows.  But a power exists to make allowances to widowers. In the other cases no duty was imposed, but a power was conferred which, if exercised, would inevitably lead to incompatibility. Compatibility could only be achieved by refraining from the exercise of the power. In the instant case, the power, if exercised, would lead to compatibility but refraining from exercise of the power would lead to incompatibility.  However, all three cases share an important feature.  Compatibility can only be achieved by removing the power conferred by statute altogether.  It is that feature which satisfied the first limb in Section 6(2)(b) in Kansal and Alconbury.  The primary legislation was incompatible with the Convention because compatibility could only be achieved by removing all choice. In Kansal the prosecution would have been compelled not to adduce the evidence obtained under compulsion.  In Alconbury compatibility could only be achieved by removing the power to call in the planning application and imposing a duty to do so.  By way of contrast, in Friends Provident, the power was not removed because there were cases where it could be exercised in a manner compatible with the Convention.

46. In the instant case, it seems to me that the fatal flaw in the claimants’ argument is that its effect is to convert the power to give an extra-statutory allowance into a duty.  It destroys the power altogether. Miss Rose appears to accept the significance of the principle that it is not permissible to extinguish a power by converting it into a duty.  She asserts:-
“It is very important to note that the construction we put forward does not defeat the statutory purpose of Section 262 by, in effect, necessarily extending to widowers an allowance Parliament intended to apply only to widows.”  (see paragraph 24 of her further written submissions).

47. Yet I do not accept that her submissions allow of the exercise of any power at all.  She contends that the Revenue could have sought to establish objective justification for the difference in treatment. If successful, their refusal would not have been incompatible with the Convention. Thus the power is preserved.  I do not agree.  There is no justification for the difference between the treatment of widows and widowers in the granting of the allowance and none has been proffered.  The effect of her submissions is to remove the power altogether and put in its place an obligation to make widowers the same allowance as widows.  Neither Section 262 nor Section 1 of the TMA 1970 can be read as to impose an obligation to make such an allowance.  It is impossible to envisage any circumstances in which the Revenue could exercise a choice not to afford an allowance to widowers, compatibly with the Convention.

48. Miss Rose sought to distinguish this case from the case in Hooper by contending that the claimant is not seeking an extra-statutory payment, but rather an allowance authorised by statute, namely Section 1 of the TMA 1970.  I do not accept that this is a valid distinction.  The source of the power may be different but nevertheless the obligation to make the allowance is no more authorised by statute than the benefits sought in Hooper and Others.

49. I conclude, accordingly, that in refusing to exercise its power to make an extra statutory allowance, the Revenue was giving effect to primary legislation which cannot be read in a way which is compatible with the Convention. The Revenue is entitled to rely upon Section 6(2)(b) and did not act unlawfully, contrary to Section 6(1), by failing to introduce an extra statutory allowance.

THE COMMON LAW DUTY TO TREAT  MR. WILKINSON IN THE SAME MANNER AS  MR. CROSSLAND

50. There is no doubt that the Revenue is under an obligation to treat taxpayers fairly and without unjustified discrimination.  Such an obligation may compel the Revenue to refrain from demanding tax due as a matter of law.  Miss Rose expressly adopted the arguments advanced in Hooper, in contending that, once Mr. Crossland’s claim in Strasbourg had been settled, all widower taxpayers, who brought proceedings in the United Kingdom should be treated in the same way and not as sacrificial lambs. For the reasons I gave in that case I conclude that a taxpayer bringing proceedings in Strasbourg is not in the same situation as a taxpayer seeking an extra statutory allowance in the United Kingdom.  For the reasons I gave in that case the Revenue was entitled to litigate the issue of reliance on Section 6(2)(b) notwithstanding a settlement of Mr. Crossland’s application. (See paragraphs 141 – 155 in the judgment of Hooper and Others).

CONCLUSION
51.  I conclude:-
(1)	the provisions of Section 262 were incompatible with Article 14 read with Article 1 of the First Protocol;
(2)	that the Revenue does have power to issue an extra statutory concession affording an allowance to widowers;
(3)	that in refusing to exercise that power, the Revenue was giving effect to Section 262;
(4)	that the Revenue did not act with unfairness or abuse its power by failing to treat the claimant in the same manner as Mr. Crossland.

52.	I do not agree with Mr. Brennan QC that a declaration of incompatibility would be pointless.  Accordingly I shall make a declaration in relation to section 262 of ICTA and will hear argument as to the form of the order.