BETTING BY CHEQUE. (Hansard, 27 October 1921)

§ THE LORD CHANCELLOR (VISCOUNT BIRKENHEAD)

My Lords, the noble and learned Lord has been good enough to acquaint me with his intention of putting the question which he has just read to the House. The Government is certainly well aware, and I not less vividly than my colleagues, of the terms and effect of the Judgment in question. The noble and learned Lord quite properly addressed his Question to me as a Minister, and I would say in that capacity, and putting myself as far as I can in the position of the noble Lords who tried the case, that the matter is really not quite so technical as its presentation in legal language makes it appear, and if it interests your Lordships at all, before I answer the specific question contained in the interrogatory I could, I think, put the matter with reasonable simplicity.

In the year 1835 it was the law of this country that a man who lost a bet and paid the amount of his loss, whether he paid it in cash or Bank of England notes or by cheque, could recover it. There was no such distinction in the year 1835 as has been commented upon by many who have not very clearly understood the history of the matter in more recent days. It was the policy, not, give me leave to observe, of lawyers—because it has been imputed to some supposed inveterate objection to betting, of which I have not become aware, entertained by the legal profession—it was 83 on the contrary, the expressed policy of Parliament at the date with which I am dealing, and it sprang from the old antagonism, inherent, it may be, in our English character, between our public conscience and our private tastes, the effects of which have sometimes been visible in other fields. But at least there was no such inconsistency in the method in which this law, whether it was good or whether it was bad, operated.

In the year 1835 an Act of Parliament was passed which dealt with a great variety of topics, and, amongst others, with certain aspects of our Gaming Law, and in the course of the changes, not material to be recounted here, which it made it introduced some changes in the legal position of notes and bills, and, having introduced those changes, it occurred to those who drafted the Bill that unless they made it quite plain, it might be supposed that a man who paid a betting loss by cheque could recover it, and inasmuch as at that period if he paid in money he could not recover it, it would, of course, have been absurd to allow him to recover if he paid by cheque. Therefore, Section 2 of the Gaming Act, 1835, provided in express terms that if you paid your betting loss by cheque, you would not be able to recover, in order that beyond all mistake the law relating to cheques should correspond with the law relating to money.

Ten years later it was realised that if a man chose to pay his debt in money it really was not the concern of the Legislature to prevent him, and an Act of Parliament was passed which gave effect to that realisation. But quite evidently it escaped the notice of those who passed this Act that in the Gaming Act, 1835 (which, as I have said, dealt with a variety of topics) there was contained a section which expressly provided that, if a gaming debt was paid by cheque, the payer could recover it, and it is to that circumstance that is to be referred the difference which has been the subject of a good deal of uninstructed comment recently. Now, whoever is responsible for that, it ought not, I think and indeed it could not, be put upon any Judges. Your Lordships know well enough the circumstances under which, in this House, we discharge judicial functions. We are there to state what the law is. Your Lordships have never authorised us, nor has the House of Commons authorised us, when we see, as we think, opportunities of improving the law, to convert ourselves 84 at any moment we may select into a legislative body; and it seems to me extremely unlikely that either this House or the House of Commons will ask us to undertake such functions in the future.

It has been suggested in many quarters, and the question invites me to consider the matter, that there will be grave dislocation of the business of many people. That undoubtedly will be so. Let me make plain the nature and extent of that dislocation. It means that, within the period of the Statute of Limitations, any person who has lost money by betting under the defined circumstances and has paid his loss by cheque, can recover from the person to whom he has paid it, and I have no doubt that many cases could be found in which persons who have discharged a representative function may find themselves under a legal compulsion to prosecute such claims. The inconvenience of that is manifest, and it is not, to those who suffer, rendered more tolerable by the fact—it undoubtedly is a fact—that the section under consideration had escaped the attention of most of those concerned for a very long period of years.

Your Lordships know that the Government, during the present sittings of Parliament, are under very definite undertakings that they will not introduce any legislation which departs from certain limits quite clearly explained. I do not even know whether my colleagues as a body would agree to a measure which was intended to remedy the difficulties which have presented themselves. Certainly I should myself be in favour of it, whether you approach this question from the point of view of the person who sees no particular harm in gambling, or whether you approach it from the opposed attitude of those who have a strong moral objection to gambling. In either case, it would not appear that any great public interest is served by persons who obviously did not share the moral objection to betting, who have taken their chance of winning, who have lost and who have paid, being unexpectedly enabled to recover the money which they have so paid.

I cannot, I confess, see that any moral purpose would be gained by perpetuating this system. I confess that, speaking again entirely for myself, I have never particularly shared the objection to any person who chose, and could afford to do so, making a bet if he so desired; and certainly, though I do not pretend to deal 85 very much in these matters myself, if I wished make a bet, I should conceive myself perfectly at liberty to do so. Indeed, looking back over our national history, there were times not very far removed from our own in which statesmen of the utmost distinction and responsibility—and I may even recall, so that it may be plain that I do not stand alone, even illustrious predecessors of my own—were, I will not say in the habit of settling disputes or testing differences of opinion in this way, but certainly did so on occasion.

It is quite true, also, that the whole law of gaming in this country is in an extremely illogical and unsatisfactory condition. I can perfectly well see how it could be made simple and intelligible, and yet, I think, not tending to encourage gambling. I can perfectly well see how it could be done; but whet her any political Party or whether Parliament would be in the least likely to give me the power so to deal with it, I do not pretend to know. For the reasons that I have indicated, it is impossible, even if they were willing—and I do not know whether they would be willing—for the Government to deal with it, but if the noble and learned Lord who takes an interest in the matter cares to test the feeling of Parliament—if he cares, in other words, to discover whether, even under the conditions under which we assemble in both Houses to-day, there is a general sense that this is an irrational dislocation of all that was treated as existing and binding—it is of course quite within his power (and it can be done in a single clause) to test the feeling of Parliament by introducing such a measure and discovering whether your Lordships' view towards it was, or was not, that here there was on the whole a very widespread inconvenience, springing from irrational causes, and one admitting of simple remedial treatment.

Speaking for myself, if the noble and learned Lord thinks proper to take that course I shall certainly support him, but he would not expect that I should give him any encouragement. I have no right to do so on behalf of your Lordships as a body, and I am still less in a position to say what view may be taken of these highly disputable matters in another place.