5 - Rules and discretion

Summary

Law and ‘soft law’

Towards the end of World War II, Robert Megarry, a young English barrister specialising in property law, came across Inland Revenue (IR) guidance on concessions to the taxpayer. Megarry was intrigued by these ‘administrative notifications’. Were they enforceable? Were they or were they not ‘law’? In his view the arrangements:

operating in favour of the individuals concerned at the expense of taxpayers as a whole, are technically not law, but although no Court would enforce them, no official body would fail to honour them, and as they are not merely concessions in individual cases but are intended to apply generally to all who fall within their scope, the description of ‘quasi-legislation’ is perhaps not inept. Announcements operating against the individuals concerned, on the other hand, will normally be open to challenge in the Courts and so can be said to have the practical effect of legislation only to the extent that the expense, delays and uncertainties of litigation in general, and of opposing the unlimited resources of the Administration in particular, make those affected prefer to be submissive rather than stiff-necked.

Subsequent case law showed courts at first looking on the IR concessions with disfavour. In Cook, for example, the IR had agreed, as a concession, to accept excise duty in instalments rather than by a single, immediate payment. The Lord Chief Justice remarked: ‘One approaches this case on the basis, and I confess for my part an alarming basis, that the word of the Minister is outweighing the law of the land.’ Yet the court did not actually halt the ‘illegal’ practice.