Over-reliance on guidance is another serious problem. It is clear from the case of
Gray’s Timber that a court will (indeed must) ignore any published guidance in
forming its view of the law. This must be correct, as otherwise guidance would
effectively have the force of statute despite not passing through Parliament. An
extreme example of this problem was the draft Salaried Members legislation
within the current Finance Bill. Both law and policy in this field are
underdeveloped (we would note the House of Lords’ Economic Affairs
Committee’s recommendation that introduction be deferred for a year, which was
regrettably ignored by the Government).
Quite pernicious he thinks this is.
Even where legislation is not expressly retrospective, it can effectively be so.
Probably the most egregious recent example of this was the last government’s
introduction of the Bank Payroll Tax (a remarkable tax in that its entire charging
period had passed before it became law). As at the date of introduction of the
tax, policy (let alone effective drafting) had not been finalised as to what a “bank”
was and hence who might be subject to the tax. Our view is that the tax system
should include administrative safeguards to prevent legislation being introduced
with immediate effect where it has not been substantially finalised.
A denial of democracy. Actually, Ritchie goes even further:
You can feel the contempt oozing through those words. The City lawyers disdain for the long fought for right to democratic control of taxation in this country is swept aside in one sentence that demands the right of veto for this group who practice solely on behalf of the financial elite of the UK. And this, they claim, they are doing to uphold the rule of law.
Let me be abundantly clear: that is the very last thing that they are doing. Anyone who asks for the right of veto for law to be passed to an undemocratic body is taking us far away from the rule of law. They are very blatantly calling for the creation of neo-feudalism.
To seek to uphold the rule of law is to seek to abolish the rule of law.
Oh, and of course Parliament is not sovereign in tax law. The EU is. The UK cannot, for example, tax royaltis flowing to a company inside the EU but outside the UK. Nor interest: it is illegal for them to even try.
The rule of law is rather more powerful than the democratic desires of the needle pricks in Westminster. And rightly so: that’s what the rule of law means.