Tax Law, State-building and the Constitution

The chapter examines why tax is so readily accepted as a critical part of constitutional history yet so rarely discussed in connection with the contemporary UK constitution. A convincing explanation is offered by Joseph Schumpeter, namely that there is an important difference between the establishment of a state and its normal operation thereafter. At the point of establishment, everything depends on success or failure in securing adequate and reliable revenues. Once the state is up and running, tax is generally subordinate to government, although the manner in which it is exacted may have important and enduring social consequences. There is therefore a point in time at which attention shifts from how tax constitutes the state to how it is constituted by the state. This portrayal of tax is largely accepted in the present book, with two important qualifications. First, there is a tendency for constitutional crises to be channelled through tax, perhaps precisely because threatening revenue streams is a very effective way for antagonists to threaten the integrity of the state itself. Tax may therefore re-emerge as a topic of constitutional importance during periods of acute conflict. Secondly, there is a less spectacular but more pervasive tendency to privilege the security of public revenues, even in areas of law that are not conventionally treated as part of revenue law such as charity law and restitution. This second tendency, it is suggested, is most visible in cases where the protection of public revenues contradicts normative preferences that we would otherwise expect to see reflected in the area of law in question. The difficulty with using these phenomena to highlight the constitutional relevance of tax is that the first is associated with old controversies such as the Magna Carta, the Petition of Right, the Case of Ship Money, the Glorious Revolution and the People’s Budget of 1909; whereas the latter receives piecemeal acknowledgement in various literatures but has not been examined systematically. In any case, the breakneck pace of change in the contemporary UK constitution, alarming from many perspectives, presents an unparalleled opportunity to observe the interaction of tax and constitutional questions in a modern developed state. This chapter, after presenting a critical review of the relevant literature, selects a few of these interactions for further examination: the devolution of tax powers to Scotland, Wales, Northern Ireland and English localities; tax reform processes within the UK government and Parliament; the relationship between taxpayer rights and tax authority powers; and the changing domestic constitutional relevance of law associated with the OECD and the EU. The aim of the book is not to provide a comprehensive survey of the fiscal constitution, but to highlight the potential for tax to disrupt the constitution, and for attempts to protect revenues to disrupt other areas of the law. These points, it is suggested, deserve more prominence in both tax and constitutional scholarship than they have hitherto achieved. To those readers newer to the study of tax, the unusual combination of tax topics prompted by a constitutional analysis may also offer a new window into the subject and a useful complement to more conventional introductions.