Constitutional and Administrative Law - Compare and contrast Lord Denning's judgment in the Court of Appeal in IRC v. Rossminster [1980] with Lord Wilberforce's subsequent judgment in the House of Lords in the same case.

Victoria Maschio

Constitutional and Administrative Law

Coursework 2

Compare and contrast Lord Denning’s judgment in the Court of Appeal in IRC v. Rossminster [1980] with Lord Wilberforce’s subsequent judgment in the House of Lords in the same case. Which opinion is the more reconcilable with orthodox Diceyan notions of the sovereignty of Parliament and the Rule of Law?

Parliamentary sovereignty and the Rule of Law are two basic underlying principles of the British constitution. In order to accurately discuss the judgments in Rossminster I think it is important to first define and set out these two principles.

Parliamentary sovereignty as defined by Dicey comprises both a positive and a negative limb. The former states that parliament can, in effect, do anything it pleases: it can make and unmake any laws whatsoever, subject to the manner and form in which the pieces of legislation have to be passed (i.e. majority in both Houses of Parliament and assent of the Queen). In this respect there is no limit to the substance of the law that Parliament can enact and a law passed by a simple majority is equal in standing to one that is passed unanimously.

The negative limb emphasizes that the legality of an Act of Parliament cannot be challenged by a British court: it is not therefore up to a court to declare an Act invalid even if it applying it would lead to injustice because to do so would be to go against the intention of Parliament as expressed in the text of the act and hence violate its supremacy. The correct way for an unjust Act to be remedied is not through the common law but again through Parliament by way of an amending Act. The courts therefore are not only to refrain from questioning the subject matter of an Act but also to inquiring “into the mode in which it was introduced”: if an Act has been passed improperly the courts are still bound to enact it unless it is repealed by Parliament.

The Rule of Law formulated by Dicey aims to temper this power by drawing up the boundary lines of separation between the legislature, the executive and the judiciary in order to protect the individual and his rights and liberties, essentially from the government acting ultra vires.

The essence of the proposition can be extracted from Dicey’s Law of the Constitution and comprises of three parts. The first relates to his primary concern of protecting the individual and states that “no man can lawfully be made to suffer in body or goods”: inherent in this is that a person acting in his official capacity is not strictly speaking acting legally. It is now a well-founded presumption (although not a legally binding one) in English law that the rights of subjects are not to be encroached upon and that wherever possible interference with these rights should be limited and at the very least compensated for. The second part of the rule qualifies the first and states that this lawful suffering cannot occur “except for a distinct breach in the law”: this reinforces Dicey’s proposition that the executive (i.e. the government) must operate within a framework that is superior to the actions of its officials. In essence he is re stating his aim outlined in the first part, clarifying that the overarching structure that regulates the executive is indeed the legislature and that they are distinct entities. The third part to the rule requires that the breach of law “must be established in the ordinary legal manner before the ordinary courts of the land”. Hence the government is not allowed to interfere with the freedom of an individual unless said individual has been found to be in breach of a law by the courts. It is therefore the courts and not the government who have the authority to determine whether the subject in question was acting unlawfully or not and this in turn is constrained by the supremacy of substance and form of the Parliamentary Act, if there is one, and by the value of precedent in the common law if not.

Dicey’s main concern was that the executive will always try and carry out things that have not been authorized by the legislature in order to further itself and widen the scope of its powers: the scope of the courts is hence to allow the individual a way of securing a remedy against this abuse of power by the government, should it occur, when it violates legislation enacted by Parliament and this is exactly the point of debate in the Rossminster case.

The questions put to the Court of Appeal and subsequently to the House of Lords in this case were ...

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The questions put to the Court of Appeal and subsequently to the House of Lords in this case were firstly whether the warrant for search and seizure, obtained through compliance with section 209(1)(3) of the Tax Management Act 1970 (as inserted by the Finance Act 1976, s.57 (1), schedule 6), was valid and secondly, whether the use of this warrant was in itself valid.

The Act stated that if the Inland Revenue satisfied a judicial authority (in this case a circuit judge) that they had “reasonable ground for believing that an offence involving a form of fraud in connection with, or in relation to, tax” had been committed than he could issue them with a warrant to search the premises. Subsection 3 specified further that:

“on entering the premises with a warrant under this section, the officer may seize and remove any things whatsoever found there which he had reasonable cause to believe may be required as evidence for the purposes of the proceedings in respect of such an offence…”

In Rossminster, the Inland Revenue Commissioners (IRC) obtained separate warrants under this section of the Act to search the homes and business premises of Rossminster Ltd, A J R Financial Services Ltd and their directors. There was evidence that the officers when conducting the search did not examine much of the material they took away with them; in answer to this the respondents applied for judicial review of the seizure claiming that it was unlawful and demanded an order of certiorari to quash the warrants, a declaration that the seizure was in fact unlawful and that the IRC return the articles that they had taken. They claimed that the warrants were invalid because they did not specify the particular offence which they had been suspected of committing and that the seizure was unlawful due to the fact that the articles taken were so numerous and had been removed in such a short period of time that it was impossible that at the time they were taken the officers had reasonable grounds for believing that they would all be required as evidence of the offence.

Lord Denning’s powerful speech in the Court of Appeal favoured the applicants: although not doubting that the warrant had been obtained in the manner set out by the Act he was disgusted at the way in which the operation was run and the refusal of the IRC in specifying the offence the applicants were suspected of being guilty of committing. He compared the search and seizure to that in Entick v Carrington where the Home Secretary authorised a raid on a printer’s premises (i.e. Mr. Entick’s) because he sympathised with a radical politician, John Wilkes, and the government were trying to suppress his publications in order to avoid him being voted in as an MP.

Lord Denning doesn’t merely read the Act and decide whether the facts and behaviour in question conform to it: instead proceeds to inquire into the manner in which it was passed. He tells us that the Act in question was “put forward by the government of the day”, that it “passed by a narrow majority”, that it was “opposed by many as being a dangerous encroachment on individual freedom”. Not being satisfied he even inquires into the intention of Parliament as regards the subject matter of the Act: “why has Parliament done this? Why have they allowed this search and seizure by the Revenue officers?”. In doing this he is going completely against the notion of Parliamentary sovereignty I have outlined above and with a view to giving what he considers to be the correct interpretation, draws on a proposition of natural justice (“every man is presumed to be innocent until he is proven to be guilty”) and common law (“by common law no search or seizure at any man’s house can be made except for stolen goods”) in order to obtain legal authority for his point of view. It is obvious enough to see that this is a direct violation of the principle of Parliamentary sovereignty but how does his purposive interpretation sit with the Rule of Law? If Dicey’s main concern was that of protecting the individual from the government acting ultra vires then surely Lord Denning is in fact ensuring that this is indeed so. He condemns the Act in question because, although he recognizes that it is necessary to catch out the “wicked people… who keep two sets of books”, he maintains that legislation “drawn so widely… might be an instrument of oppression”. He points out, agreeing with Dicey, that “ once great power is granted, there is a danger of it being abused” and that rather than risking this and the subsequent perpetuation of the injustice that flows from it he believes it is the duty of the courts to construe Acts of Parliament “so as to encroach as little as possible on the people of England”. This is Lord Denning’s purpose: he recognizes what the Act is aimed at but believes that in order to avoid injustice he has not only the ability but the duty to put the Act’s literal interpretation to one side and substitute for it ideas of natural justice and common law that fit the picture better.

His approach to the question whether the warrant was void for lack of specificity is along similar lines: he draws on the common law in Christie v Leachingsky for support in declaring that a general warrant is in fact void. In his view these searches must be done by “due process of law” which involves a warrant specifying the nature of the suspicion of the crime: since there is no such specificity the warrant is void for want of particularity and therefore the whole search and seizure is unlawful.

Lord Wilberforce in the House of Lords takes a different approach. He points out that since the second world war the important human right to privacy of a man’s home has been overridden “which the public has in preventing evasions of the law”: he also agrees however that in the present case he cannot believe that the law in question “does not call for a fresh look by Parliament”. This is the point around which his whole speech is based, that of Parliamentary sovereignty and the courts’ observance of it:

“while the courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt in interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation”.

To do this he says would be to “weaken the advance of the democratic purpose” and is an issue “to be debated in Parliament”.

Wilberforce points out that the warrant followed the wording of the statute and complied with the safeguards against injustice that were imbedded in the Act (i.e. the need for approval of the board of the Inland Revenue, the approval of the judicial authority). In doing so Lord Wilberforce explains the need for the lack of specificity in the warrant both in terms of the fact that fraud offences are complex and that it would be impractical at this interlocutory stage to require particularity and also through the words of Lord Reid that “it is essential that there should be no disclosure of anything which might give any useful information to those who organize criminal activities”. This then ties in to his judgment as to whether the use of the warrant itself was unlawful and whether the prompt removal of the documents was due to reasonable cause and belief. He allows that this power of seizure, conferred by statutory power, is subject to the judicial review of the courts but that the existence of reasonable cause and of the belief founded upon it is “a question of fact to be tried on evidence”. This entails that until there is a criminal trial, if there is one, the applicants cannot and will not know what crime they are suspected to be guilty of. But suppose the criminal proceedings were never to start and the charges dropped, allowing the removal of documents would be tantamount to turning a blind eye to an incredible intrusion into the privacy of the people in question for no apparent reason, even though Lord Wilberforce does point out that, if this were the case, the applicants could bring a claim against the revenue for trespass and excess of power.

In conclusion, it seems that the judges start from two different standing points and the differing end result that follows is simply the logical progression of it. Lord Denning sees as paramount the liberty of the individual and in protecting this comes perilously close to declaring that the Act of Parliament is invalid; Lord Wilberforce on the other hand understands that he cannot go against the statute and construes his argument accordingly on that basis, whilst suggesting that Parliament should take another look at it. In Lord Denning’s view it cannot be the intention of Parliament to presume people guilty or to want to impose on their freedom and by backing his argument up with the fact that the Act was passed by a simple majority construes a strong argument in favour of amending the Act in question. Where he goes too far in terms of Parliamentary sovereignty is to take the decision himself not to implement it and in fact to completely disregard it. Lord Wilberforce on the other hand abides by the sovereignty proposition but at the initial expense of the citizen who is so forced to wait until the government decides whether it will bring proceedings against them. At that point if the claim is dropped they have a chance to obtain a remedy. The question is whether you can consider this governmental freedom necessary in order to ensure that citizens abide by the law or whether, as Lord Denning maintains, a similar discretion comes perilously close to the excess of power in Entick v Carrington and comparable in effect to the abuse of power in Liversidge v Anderson.

BIBLIOGRAPHY

Texts

I. Loveland, ‘Constitutional Law, Administrative law and Human Rights- A Critical Introduction’, 3rd Edition, The Bath press, Bath 2003.
T. Ingman, ‘The English Legal Process’, 9th Edition, Oxford University Press, 2002.

Statutes

Finances Act 1976 schedule 6

Cases

R v Inland Commissioners and others, ex parte Rossminster Ltd. and others [1980] AC 952
Inland Commissioners and another appellants and Rossminster Ltd. and others respondents [1980] Ac 952
Entick v Carrington [1765] 95 ER 807
Edinburgh and Dalkeith Railway Co v Wauchope [1842] 8 ER 279
Conway v Rimmer [1968] AC 910