TC09680 - [2025] UKFTT 01332 (TC)

HMRC rely on the principle articulated in Lord Wilberforce’s dissent in Royal College of Nursing of the United Kingdom v DHSS [1981] AC 800, (“Royal College of Nursing”) which they note was subsequently approved in R (Quintavalle) v Secretary of State for Health (“Quintavalle”) [2003] UKHL 13, [2003] 2 AC 687 at [10] and (more recently) in R (N3) v Home Secretary at [64]. In Royal College of Nursing Lord Wilberforce said:

“In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the Parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question ‘What would Parliament have done in this current case – not being one in contemplation – if the facts had been before it?’ attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.”

I have quoted here the full passage approved in Quintavalle: in their skeleton HMRC only quote the first two sentences, finishing with “is directed to that state of affairs”, although I was taken to the full passage in submissions.

HMRC then submit that regard should be had to the fact that, when the 2002 Order was made, the GWA 2006 had not been enacted so the National Assembly for Wales had no powers to pass primary legislation.