On 15 June 1215, Magna Carta was signed at Runnymede. King John, who was very unpopular, was encouraged to come to the table with a group of rebel barons. In part, it was about “feudal payments” to the Crown – taxes on the rich and powerful. And “encouraged” is putting it politely – I think he could have lost his head if he hadn’t come to the table.
This is one of the key documents in the British Constitution and is relied upon by the people of the UK, but the truth is Magna Carta was for the very rich and powerful. It promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown, to be implemented through a council of 25 barons.
Hardly surprisingly, neither side stood behind their commitments. After John died it was reissued in 1216, albeit stripped of some of its more radical content. A brief war ensued, after which in 1217 it formed part of the peace treaty agreed at Lambeth, where the document acquired the name Magna Carta. Short of funds, King Henry reissued the charter again in 1225 in exchange for a grant of new taxes; his son, Edward I, repeated the exercise in 1297, this time confirming it as part of England’s statute law.
Magna Carta still forms an important symbol of liberty today, often cited by politicians and campaigners, and is held in great respect by the British and American legal communities, Lord Denning describing it as ‘the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot’.
There is little doubt that the intention of the Crown in the United Kingdom, through Her Majesty’s Government, intends to curtail some of the Freedoms during the Brexit process and perhaps beyond. So, what has that got to do with tax?
Well, first of all Magna Carta has tax as a central issue. But throughout the Brexit process those parts of EU tax law that does not sit in UK law, statute, Statutory Instruments and Tertiary legislation (the bit where HMRC can, some unfairly say, make it up as they go along), the changes to the UK’s taxation laws will be made without Parliamentary debate and to all intents and purposes without scrutiny of Parliament. This is arguably contra to Magna Carta. It does seem fairly close to taxation without representation which caused a spot of bother over the Atlantic just over two hundred years ago.
But that point is irrelevant if the opportunity is used to score several open goals by HMRC. And it does not look too promising so far. And for the purpose of this article, we can set aside the intention of the UK Government to forbid challenging matters related to Brexit within the courts – very much ripping up that part of the UK constitution – and seeking to take powers to extend effective rule by decree beyond Brexit.
So, what’s wrong with The European Union (Withdrawal) Bill as regards taxation?
Well, whilst I cannot argue with the Bill’s intention, according to the Explanatory Notes, the first problem is that even top lawyers cannot be sure what the Bill says – the legislation is not clear and I am told is badly written. That spells trouble at some later date, not least because some taxpayers could well find themselves funding cases to clarify the law.
Next, it seeks to do more than implement EU law into UK tax law – my small Europhobe sat on my right shoulder is now being very annoying and reminds me that one of the intentions of leaving was to get rid of this EU red tape. This EU red tape is how we tax our country, my little Europhobe, and if we don’t patch up the law in the UK, the tax system will stop working. What you should be fretting about is that there are a number of provisions which go beyond incorporating EU law as it stands at exit day into UK law and which result in the position of taxpayers after exit day being different from, and worse than, their position immediately before exit day. Yes, the UK Government seems to be taking this as an opportunity to erode your taxpayer rights and indeed those of all taxpayers in the UK. And in my view, this stands firmly against Magna Carta. How will the barons react this time? I believe that this needs to be spelt out clearly, as it seems to be slipping by unannounced, without discussion and certainly without consultation, which is the norm for changes of policy.
Next some of the clauses of the Bill act retroactively – this means that taxpayers will be caught out not only for events after Brexit Day, but also those beforehand. This cannot be right. Right now, as the Bill passes through Parliament, some clauses with such effect appear to be inconsistent with EU law (little Europhobe, we are some way away from leaving yet) and may well be contrary to the European Convention on Human Rights – no my little Europhobe, that is different from the EU, although it seems the UK may well be on our way out of that as well.
Brexit is a difficult process. I don’t think anyone had any idea how difficult and time consuming it would be, although that does not say a lot of the judgement of some UK Government ministers. Our way in the UK is to discuss major changes of our law within the Mother of All Parliaments. Some law is delegated, but as a rule anything as important as changes to tax law would normally be debated properly.
This is not happening with Brexit, even where changes go beyond what is needed to exit the EU. In my view advantage is being taken against taxpayers by the Government by including matters which should not be there. Furthermore, there appears to be no process for consultation of the taxpaying public.
And in my view, all this stands firmly against Magna Carta. How will the barons react this time?