Constitutional and Administrative Law Court

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in which it was introduced"1: if an Act has been passed improperly the courts are still bound to enact it unless it is repealed by Parliament.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 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 Carrington2 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.