§ 11.11 a.m.
§ Mr. J. E. S. Simon (Middlesbrough, West)
I beg to move, in page 1, line 20, to leave out "eleventh day of November" and insert "first day of December."
This Amendment, and the succeeding one to leave out subsection (4), raises the general question of retrospective legislation. The first Amendment concerns a comparatively minor matter, and its intention is to elucidate from my hon. and learned Friend the Solicitor-General whether it is necessary to take the operative date as the date of the Minister's announcement in the House of Commons, or whether it would be preferable to substitute for that date the date of the introduction of the Bill. I think it is highly reprehensible that we should suggest that a Minister's statement in the House of Commons should automatically be given the force of law if he threatens to impose a penalty, and that that date should be the date from which the penalty should commence, or that, if he threatens to impose a charge, that date should automatically be sanctioned by the House of Commons.
On 11th November of this year, my hon. Friend the Assistant Postmaster-General certainly said that the charges which had been made and the moneys which had been received would be validated, but nothing was said as to proceedings then pending or which might thereafter be started, and, particularly, no warning was given that, where a judgment was recovered in these proceedings, that judgment might be vitiated by an Act of Parliament subsequently to be passed.
It may be that it is necessary to keep the date of 11th November in subsection (3) because of its presence in subsection (2), but it is highly objectionable on the face of it that this House should proceed to pass into law an Act of Parliament which actually upsets judgments lawfully obtained in the High Court in the existing 2293 state of the law, and I would therefore ask my hon. and learned Friend to deal with that particular aspect of the matter.
§ The Solicitor-General (Sir Harry Hylton-Foster)
No one hears retrospective legislation described as objectionable with such enthusiasm as I do, but I hope that, when my hon. and learned Friend the Member for Middlesbrough, West (Mr. Simon) has heard how this Clause works, he will agree that we are taking the right course.
No one would suggest that the Government, having decided to take a measure of this kind, should leave themselves exposed to the effect of judgments in proceedings commenced at any date before the passing of the Act. That, obviously, would be absurd, so that, in order to effect the purpose of the Act, we have to find some other date and say that proceedings taken thereafter, even though they result in a judgment, shall not be operative. That is obvious. It seems the sound thing to do is to see if there was proper public warning, as there would be, for example, by a statement in this House, that legislation with that effect would be enacted if the House so approved. The point raised by my hon. and learned Friend in this Amendment would, of course, be a cogent one if it were really true to say that not until the presentation of the Bill, or not until its proposed provisions were made public, was there any public warning that legislative power would be sought to make litigation fruitless after a given date; but that is not so.
I should like to tell my hon. and learned Friend what the facts are in relation to the only action of which we know which could have been affected by this subsection. The sequence of events is as follows. There was the announcement by my hon. Friend the Assistant Postmaster-General in this House on 11th November, to which my hon. and learned Friend was referring. Five days later, there was a pronouncement by the noble Lord the Postmaster-General in another place, and, in the context, I think I should be in order in quoting his exact words. He referred to legislation which this House was to be asked to pass, and he said this:Any new action started after the date of my announcement on November 11th will be invalidated."—[OFFICIAL REPORT, House of Lords, 16th November, 1954; Vol. 189, c. 1493.]2294 We take the view that that was a clear warning to any citizen that any action would be fruitless if the House approved of this Measure.
§ The Solicitor-General
It was 16th November.
Thirteen days went by, and the one and only writ of which we know was issued on 29th November; that is, 13 days after that warning. It is quite true that my right hon. and learned Friend the Attorney-General, during the Second Reading discussion on this Bill, did say that the writ had been issued on 7th December, but he was in fact misinformed at the time. That was the date when the writ was served, which is a rather different matter. It was actually issued on 29th November, 13 days after the fullest possible warning, and the Bill itself was presented on 1st December.
I am sure that my hon. and learned Friend, having heard that explanation, will appreciate that to take 1st December as the date in this subsection would be, first of all, as he himself has pointed out, to make the date of this subsection inconsistent with the date specified elsewhere in the Bill, which is obviously undesirable, and would validate, as we suggest unfairly, proceedings resulting from a writ which was issued at a time when everybody ought to have known that this House was to be asked to pass legislation invalidating such proceedings. I hope it will satisfy my hon. and learned Friend to know that the action in question arising from that writ has now, in fact, been discontinued, and that the Post Office are not asking for costs.
§ Mr. C. R. Hobson (Keighley)
We are very grateful for the explanation given by the learned Solicitor-General arising out of the Amendment moved by the hon. and learned Gentleman opposite, but there is one question that I should like to put to him. Is there any precedent in the law for retrospective legislation being brought before the House when the question involved is retrospective legislation for judgments? That is the point, and we on this side of the Committee would like to know if there is any such precedent.
We do not like retrospective legislation, but I am not going to repeat what 2295 I said on Second Reading with regard to observations of hon. and right hon. Gentlemen opposite on this subject. When we introduced retrospective legislation, we did so after a warning had been given. As I say, this is not just a case of retrospective legislation; it is a case of retrospective legislation over judgment, and we shall be grateful if the Solicitor-General can inform us if there is any precedent for this action.
§ Mr. Simon
I am very grateful to my hon. and learned Friend for his explanation, and although it would seem that the date that ought to be inserted in this subsection is 16th November—which was the date when clear warning was given by my noble Friend that this sort of action would be taken—I appreciate that it would cause an inconsistency with the previous subsection. In those circumstances, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Simon
I beg to move, in page 2, line 8, to leave out subsection (4).
This is quite a different point, and a far more serious one than that with which we have just dealt. This is not merely a question of legalising the receipt by the Postmaster-General of moneys which have been paid and giving an indemnity to him and his predecessors in respect of moneys which—as we now know—they have illegally received. This goes very much further. It says, in effect, that where the error was discovered and the licensee withheld payment, as he was quite entitled to do, since such payment could not be legally demanded, nevertheless, by a stroke of the retrospective legislative pen, he is to be made liable for sums which he had withheld.
That is a very serious issue. It is more serious than that which the House debated in the Lord case and the Black case, because no sort of warning was given that this action would be taken. It is clearly nothing less than saying that, 2296 as from a date before the beginning of this Bill, money can be exacted. Parliament can do that. One of the basic principles of the Constitution is the sovereignty of Parliament, but that has to be reconciled with another equally basic principle, which is the rule of law. That, surely, is something which no hon. Member would desire to see weakened in any way.
The reason is perfectly simple. If we expect our fellow citizens to regulate their lives by law, we must ourselves respect it. We must not interfere arbitrarily or capriciously with the structure of the law in which the citizen has shaped his course. Therefore, when the citizen regulates his affairs in accordance with the law as he finds it, we are derogating from the rule of law when we alter that structure retrospectively.
In the Second Reading debate, I dealt with the question that there might not be many merits in this case and submitted that that was really an irrelevant consideration. My hon. and learned Friend, in defending this position, pointed out the anomaly that would arise, because we should be allowing the Postmaster-General to retain moneys which had been paid without the authority of Parliament, and which he had collected without the authority of Parliament, while we were, in effect, allowing those who had withheld payment to continue to do so lawfully. I care not whether that anomaly is created, because a very important constitutional principle is involved.
Let us consider the question of ship money. What could be more anomalous than that the payment for the Royal Navy should be made only by the citizens of the ports, when the whole country was being protected? That argument was used, however, and it was a valid administrative argument, as was that which my hon. and learned Friend quite cogently and properly put forward last week, but it had to yield to a far wider one—the maintenance of the rule of law—and it is on those grounds that I ask my hon. and learned Friend to accept the Amendment.
§ The Solicitor-General
I am sure that the Committee will agree with my hon. and learned Friend that this is an important point, and will be grateful to him for raising it, because we all like to have legislation of this kind vigorously 2297 scrutinised. I should like him to know how carefully we have considered the points he put forward in this matter during the Second Reading debate, and if I ask him not to press the Amendment to a Division, it is not because I have no sympathy with his arguments but because of the practical considerations which are involved. I would ask him to recognise that this Measure seeks to put right a mistake that various Governments have been making since a time before most of us were born. We have taken as the relevant supreme consideration the need to do that in a way which would seem to everybody, whether lawyers or not, to be broadly fair.
The hon. and learned Gentleman will appreciate, as will the Committee, that I am now speaking only of charges for licences for private land mobile services and other services for which a rent or royalty was prevented by Section 2 (2) of the Act of 1904. That is the only matter which is touched by this sub-section. When the hue and cry arose about the Government's right to make these charges there followed a period which I might call the period of suspense. When there is a doubt about the validity of a charge it often happens that one person takes action and a whole group of other people start proceedings by the issue of writs, and then lie by and treat the first action as a test action. But that was not the case here. Apart from the action concerning David Paxman and Co., in which judgment has been given, and the one other writ with which I dealt in the previous Amendment, nobody had started proceedings.
Once the Postmaster-General's authority to levy charges was called in question the Post Office, behaving as the Committee would expect it to behave, first made no further demand for any sums allegedly due and, secondly, upon the issue of a new licence, the re-issue of a licence upon variation or the renewal of a temporary licence, it wrote a letter to the licensee concerned stating that, the authority to make the charge having been challenged, it proposed, without prejudice to the legal position, not to ask the licensee to remit the money for the present. That was a broad enough hint, given in the proper tradition of an honest public Department, so I submit.
2298 What happened? Some people paid the charges and some did not. That is what one would expect. Many of us are addicted to paying renewal charges in connection with dog licences, driving licences and so on, almost automatically when the time comes round. In this case, some people paid unsolicited, or without demand, and others did not pay at all.
I do not want to make a false point or to overstate it. Some of those who did not pay may have been people who knew about the Davey Paxman action and decided, "We won't pay on our own; we will wait and see the outcome." Others may have been persons who had taken the hint from the Post Office that it was not going to ask them to pay and who just did not pay in consequence. No one can say which is in which category of non-payers.
One is faced with this difficulty. What is the fair thing to do? We could repay all those who had paid during this period of suspense and let the others off. If we do it that way, we at once get into the most terrible legal difficulties because, although it is plain that some of these charges were not illegally demanded under the previous legislation, it is by no means plain that all of them were illegally demanded. There are other difficulties and questions of law involved. It would be difficult to sit back and say, "I ought to repay that money because I illegally had money from him, and I ought not to repay the other man because I am not certain whether I had the money illegally from him."
§ Mr. Hobson
Would the Solicitor-General not agree that the position is much more serious? Not only were there the mobile and annual radio charges involved, but it would have been possible, in view of certain cases arising from the action, for the ordinary wireless licensee to challenge the validity of the levy for his wireless licence for which he had paid. This would have been a very serious situation and was recognised by the Post Office in so far as they made Regulation No. 438, which governed this specific point.
§ The Solicitor-General
I am much obliged to the hon. Gentleman. That is perfectly right; but it strengthens my argument. That is a sound and proper reason for not adopting the method of 2299 paying everybody back. If we do not pay everybody back, what happens to the rest?
I can understand that lawyers would draw a distinction between the position where a licensee paid the money over and could not get it back from the Post Office, and the position where the Post Office had not got the money out of the licensee and cannot get it from him. Lawyers may make that distinction, but, broadly, other people would say: those who were unsolicited and paid might think it hard if they were held to their payment, whereas people who had taken the hint from the Post Office not to pay just yet, and had not paid, were let off.
That might appear manifestly unfair, and the soundest and fairest way to deal with the matter, both of those who paid unsolicited and those who did not pay because the Post Office dropped a hint to them not to pay yet, is on the basis of practical considerations. It is on that basis of trying to secure fairness and what will be appreciated to be fair that I would claim justification of the subsection as it now stands.
§ Mr. Simon
I cannot say that I am fully satisfied with the argument that my hon. and learned Friend has put forward so attractively, if I may say so with respect, as he always does—the argument of administrative convenience, put in his usual persuasive way. We were always conscious of those arguments and we feel very strongly that they ought to yield to far wider, deeper and more important considerations. However, I feel that it is not the wish of the Committee that this Amendment should be pressed to a Division. In the circumstances, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause ordered to stand part of the Bill.
§ Clause 2 ordered to stand part of the Bill.
§ Bill reported, without Amendment: read the Third time and passed.