Tax Law Rewrite Project Consultative Committee: Ninth meeting

CC(97)Minutes (9)
19 January 1998

Tax Law Rewrite Project Consultative Committee:
Ninth meeting

____________________________

Note by the Secretary

____________________________

I attach the minutes of the Ninth Meeting of the Consultative Committee.

SUZANNE HARDY

Acting Secretary to the Consultative Committee

Tax Law Rewrite Project Consultative Committee:
Ninth meeting

2.00pm January 19, 1998

Nelson Room

_____________________________
Present:

Neil Munro - Chairman
Matt McGrath (ABI)
Paul Tipping (BBA)
Russell Chaplin (LCC)
Malcolm Gammie (Law Society)
Cunnie Rankin (ICAS)
Charlotte Barbour (ICAS)
Jane Vass (Consumers Association)
Colin Davis (CIOT)
David Williams (OSSC)
Mervyn Woods (CBI)
Richard Baron (IOD)
Simon McKie (ICAEW)

Project Team:

Margaret Hill
John Morris
Brian Chapman
Simon Habesch
Claire Francis

Secretary:

Julie McClatchey

Welcome and apologies

1. The Chairman welcomed John Morris who had taken over as leader of Rewrite Team B. Margaret Hill was moving across to head the Policy Team and would attend future meetings.

2. Apologies had been received from Adam Broke, David Brodie, and Scott Rae.

Minutes of the Consultative Committee meeting on 19 December 1997.

3. The Chairman pointed out a typing error which had occurred in paragraph 20 - the Secretary would circulate a replacement page.

4. Subject to that the Minutes were agreed.

Paper CC(98)1: TDD2

5. The Chairman reminded the Committee of the background to producing this document. The Project Team had considered the question of purposive drafting and took the view that, while it might be useful in certain circumstances, it would not be a panacea for the problem of complex legislation. While this view had been generally supported in the 1996 consultation process, there were some distinguished commentators who continued to argue for the use of purposive drafting in one form or another. The purpose of this document was to analyse the issues which might arise from the adoption of one or another purposive technique in order to inform the debate (which was likely to continue). It did not imply the project view had changed.

6. John Morris introduced the paper itself, a draft of the second Technical Discussion Document, carrying out experiments in purposive drafting. The document used the same legislation as had been used in TDD1 to test the rewrite techniques on complex legislation. The team had originally intended to present the two papers in one document, but, on advice from the Steering Committee, had decided to split it into two.

7. The document aimed to take forward the public debate in a particular way, by testing the differing views in a practical context. The team had taken the legislation and presented it in five variants of purposive drafting to illustrate what it might look like. The five variants were:

Variant A - EU style rewrite;

Variant B - statements of purpose;

Variant C - shorter primary legislation containing a Regulation making power (and draft Regulations);

Variant D - purpose statements supplemented by an Inland Revenue Statement of Practice;

Variant E - purpose statements combined with explanatory notes.

8. The team emphasised that they were not suggesting that one or other of the variants used was the best approach. They were simply seeking to illustrate the main approaches which had been put forward by proponents of purposive drafting.

9. The Project Team sought views from the Committee generally on whether the document should be published, and in particular on:

whether the document was likely to succeed in advancing the debate on purposive drafting;
whether it was consistent with the general standard of the rewrite;
whether the questions being asked covered the right areas for consultation on this issue;

10. Though with differing views on the merits of purposive drafting, Committee members were content for the document to be published. They felt it adequately covered the issues involved, and would be very useful in stimulating the debate. Some Committee members said they would send detailed comments on the draft document in writing but the following points were made in the discussion:

In order to ensure that the document had a proper 'balance' the introductory material should rehearse the arguments against using purposive drafting in more detail.
It was suggested that the title of the document would be more accurate if it referred to "several approaches."
The Committee felt it would be helpful to include more detail on experience in Australia and New Zealand.
It might also be helpful in considering the illustration of EU style rewrite to make the point that Community Law can be expressed in a number of different ways, and that Member States implement that according to their own legal systems. It was suggested that the sixth VAT Directive was not the best example to use for these purposes.
The Committee discussed the validity of including the EU style variant since, from a practical point of view, this would never be universally adopted. However they felt on balance it was worth including, to stimulate the debate.
The Committee felt that the document did help to highlight some of the difficulties of establishing just what was meant by "purposive drafting". It was pointed out, however, that the choice of legislation to use for this experiment could be seen as limiting the experiment. The difficulty arose because there was no underlying conceptual principle to fix on for giving relief for losses. The Project Team said that they had wanted to test a representative complex piece of legislation and testing a piece where the purpose was already clear was probably equally untypical.

11. As well as detailed points on the drafting of the Discussion Document, the Committee also touched on some of the wider issues raised by the purposive approach - in particular the audience for tax legislation and the implications for non tax legislation. These wider points were likely to be considered in some detail in the formal responses to the published document.

12. The Committee considered the specific questions asked in the paper about each variant and made the following suggestions:

Variant A - clarify that this variant potentially involves a transfer of power from Parliament to the Courts or the Executive.
Variant B - invite views on whether there should be a safeguard to ensure that statements of purpose do not inadvertently change the law.
Variant C - ask for views on whether this approach would enable clearer legislation to be produced (because the detailed secondary legislation would not have to be drafted by hard pressed Parliamentary Counsel).
Variant D - how in practice would legal effect be given to the material in Statements of Practice?.

13. The Committee acknowledged that the document did not expect commentators to reach firm conclusions on any of the illustrative approaches to purposive drafting. But they thought it would be helpful to make it clear that people could express a preference if they wished.

14. The paper would be considered by the Steering Committee on 29 January. If they are content it would be published in February, seeking comments by 29 May. Other business

15. The Project Team would be issuing a response document on the consultation on Exposure Draft No.1 on 31 January.

16. The Chairman told the Committee that Julie McClatchey was moving to a new job in the Inland Revenue. Suzanne Hardy would be acting as Secretary in her place until a successor was appointed.

SUZANNE HARDY
Acting Secretary
19 January 1998

Home

Top

In this section