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The Bill of Rights Act 1689
The Bill of Rights Act 1689
The context of the Bill of Rights Act 1698 is that the catholic monarch, James II, had been deposed and Parliament had invited William and Mary to rule in his place. The Act contains a number of declarations, the first of which is that “the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall”. In other words, it established parliamentary sovereignty.
One of the particular abuses which, according to the Bill of Rights Act, had been committed by James II, was to make:
“severall grants and promises made of fines and forfeitures before any conviction or judgement against the persons upon whome the same were to be levyed.”
The Act prohibited this, stating that “all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void” (“the Declaration”).
Mr Young submitted the Declaration remained in full force and effect, because the Bill of Rights Act had never been repealed, and was a “constitutional statute”. He relied on Thoburn v Sunderland City [2002] EWHC 195 (Admin) (“Thoburn”) in which Laws LJ said at [62] that the Bill of Rights was a constitutional statute, and at [63] that “Ordinary statutes may be impliedly repealed. Constitutional statutes may not”. It followed, said Mr Young, that a person charged with a criminal offence had “a constitutional right to have the criminal charges determined by a court”; that right could not be removed, and thus there was no time limit by which a person had to exercise that right.
There are a number of difficulties with those submissions.
The Declaration refers to the “conviction” of a person, and thus relates to criminal charges, whereas the penalties charged under VATA ss 60 and 61 are civil penalties. The fact that they are classified as criminal under the Convention does not make them criminal for the purposes of domestic law, and the Bill of Rights Act is plainly concerned with domestic law.
I concur with Collins J, who said in Rooney (De Crittenden) v National Parking Adjudication Service [2006] EWHC 2170 (Admin) at [8]:
“…The Bill of Rights' reference to fines and forfeitures before conviction or judgment means that what cannot prevail is a fine or a forfeiture in respect of which there is no right of appeal, whether ultimately to a court or through a system which is set up which is equivalent to a court.”
Parliament has explicitly enacted civil penalty regimes in many areas of the law, from environmental penalties to parking fines, each with time-limited appeal rights, and it is inconceivable that all these time limit provisions are illegal. In Thoburn, Laws J said at [63] that:
“For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual - not imputed, constructive or presumed - intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible.”
Thus, even if Mr Young were to be correct in his understanding of the meaning of the Declaration, the irresistible conclusion would be that the Bill of Rights has been amended so as to allow civil penalty regimes together with the related time-limited appeal rights such as that introduced by VATA.
Finally, the first of the declarations in the Bill of Rights Act established parliamentary sovereignty. It follows that Parliament, with the legislative sovereignty vested in it by the very same Bill of Rights, can and did give HMRC the power to impose and collect civil penalties such as those set out in VATA ss 60 and 61.
I therefore reject Mr Young’s submissions on the Bill of Rights Act.