§ 3.45 p.m.
§ LORD SALTOUN rose to ask Her Majesty's Government if they are aware of the anxiety and annoyance inflicted upon every class of customer, and particularly upon women responsible for families, by the refusal of retail firms to discharge properly accounts paid by remittance, on the ground that the Cheques Act excuses them and makes a receipt unnecessary; if they can state what wording upon an account is efficient to prove discharge of a debt, and what course is open to a customer to enable him to secure this safeguard; and whether it has been held by the courts that the encashment of a cheque is not adequate proof of the discharge of a specific debt; and to move for Papers. The noble Lord said: My Lords, in addressing myself to the Motion which stands in my name, I should like to say that I am not seeking to embarrass the Government in any way, but I am really giving them an opportunity, which I hope they will take, of extricating themselves from an embarrassment in which they are already involved.
§ While they have frequently said that the Cheques Act altered nothing except to abolish the need of endorsing certain cheques before encashment—and, on the face of it, I am sure that that is quite true—yet in fact the Cheques Act has introduced quite a small revolution. Something in the wording of the Act appears to have led people, almost universally, to consider that a cancelled cheque is conclusive proof of the payment of a debt of the sum or a similar amount. One banker of my acquaintance, in writing to a customer when returning his cancelled cheques, said that now that 256 a cancelled cheque was proof of a payment of a debt, he was sending him back his cancelled cheques to attach to the bills. When the customer wrote and asked whether he was quite sure, my friend abandoned that advice.
§ I learn that this belief has had quite considerable commercial effects. One modest manufacturing and trading concern told me that they saved on the postage and receipt stamps something like £1 a day, and larger concerns must save a great deal more. Of course, they do not save all that, because the money goes into their profits and they have to pay income tax on it; but still, that is how the matter stands. People now do not ask for receipts. I do not think that the fact that people are not asking for receipts matters very much with trading concerns which are going concerns, because a trading concern would be insane to ask a customer a second time for the payment for goods. But the interesting point arises as to what, in the event of liquidation, the liquidator's position is going to be. It might be extremely interesting, especially if the concerns liquidated have not kept good books and good accounts.
These considerations may perhaps be rather wider than the actual terms of my Motion, which is limited to retailers, but they serve to show that the effect of the Act, however unexpected, has been very great. It is probably too great today to reverse, and I suggest to Her Majesty's Government that it may be necessary now to abandon the 2d. stamp on receipts altogether. Let us take the effect on retailers. Some perfectly honest people appear to think that the Act has done away with the duty to send a receipt or the obligation to stamp it. For instance, I have a receipt in my hand which is for quite a considerable sum. It has no stamp on it at all, but it is a receipt in perfectly clear terms. I have another receipt here, and it bears this label:
Cheques Act, 1957. Following the new practice, on and after 17th October, 1957, we shall not issue receipts for payment made by cheque unless requested to do so.
It was sent back with a request for a stamped receipt. It was returned once again to the customer marked, "Paid", with a note round the word, "stamped":
As provided by the above Act, no stamps are required unless for cash.
That is a perfectly honest one.
§ Suppose one was charged again for this bill and one had to go into court. I should go into court perfectly happily, and if I were told that the thing could not be accepted because it was not stamped, I would assert that it was stamped. The judge would look at it and say it was not stamped. I would say, "That is perfectly all right; I have no duty to stamp it and I refuse to believe that a court of justice will charge me twice for a bill which has been already paid." One is in fact doubly secure, because if it is still the duty of the man who grants the receipt to stamp it he will not take you into court and incur a fine. That is one case. But others have read the Act differently and much more carefully, and they realise that a proper receipt must still be stamped. Therefore they try to affix to the account a form of words which may possibly be accepted as an acknowledgment but without such clear wording as imports a discharge of the debt. I have here one such which I will Land to the noble Viscount, Lord Hailsham. It has a stamp which bears the name of the firm around it, with the date across it, and it says "Returned by remittance office". Your Lordships will see that that is a very skilful evasion of "Received with thanks". I should very much like to ask the noble and learned Viscount who is going to reply whether he thinks the court would accept that as conclusive proof of discharge of the debt on which it is stamped.
§ As a matter of fact, that particular form of words does not matter very much, because there must be hundreds of variants and every individual in the retail world is entitled to his own try to guess the riddle of "When is a receipt not a receipt?" That is what is going on. The point is that the customer is too weak economically to resist, and as a rule he is too busy. I think it is the duty of the Government to rescue him from the predicament into which they have quite inadvertently thrust him. I know that people think, as the bankers seem to think, that to pin the cancelled cheque to the account is equivalent to a receipt, but it is not. As a matter of fact, I put down the last part of my Question because some fifty years ago when I was doing the Surveyors' Institution examinations I was told of a leading case where a man was sued a second time for a tailor's bill. He produced the cancelled 258 cheque in payment of the amount claimed, but the tailor said, "No. He was going to the races that day and he gave me the cheque and I cashed it for him. That is what that cancelled cheque is, and he has never paid me for the account". I was taught in those days that the court held that a cancelled cheque was not proof of the payment of the account. I am told they cannot find that leading case; I do not know whether the noble Viscount has found it. My memory may be at fault, but my lawyer friends say, quite emphatically, that a cancelled cheque is not proof of the payment of a specific debt.
§ In that case, what has the customer to do to-day to make a cancelled cheque properly effective as a receipt? I do not know about the law in England but I know a little about the law in Scotland. I know that in paying a debt in Scotland a debtor has the right to allocate the payment. If he owes a man £100 on different accounts and he sends him a cheque for £50 he is entitled to say of what part of the debt that £50 is in settlement. If that is right, what has the debtor to do now in paying a grocer's bill, say, by cheque? First, he has to write the cheque. Next he has to write a covering letter, keep a copy of the letter, obtain a certificate of posting—which in the Post Office these days is always a very long business. He has then to wait for months before he gets back the cancelled cheque, and then he has to pin the cheque and the bill together. I ask your Lordships, am I wrong in suggesting that that will take now about twenty times as much time as it took last year to write a cheque in payment of a bill and receive back a properly signed receipt?
§ For that reason I urge the Government to abandon the twopenny stamp on receipts which brings them in very little revenue and is now bringing them in less than ever, because I believe that if they do, the normal trading practice will return and ordinary customers will once more be able to get back satisfactory receipts for bills when they pay them. I beg to move for Papers.
§ 3.57 p.m.
§ LORD SILKIN
My Lords, this matter has been before your Lordships on a number of occasions, and I think almost everything that could be said on the 259 matter has already been said on one or more of those occasions. So far as I am concerned, I propose to say only two things by way of addition to what the noble Lord, Lord Saltoun, has said. First, the Cheques Act was passed as a matter of administrative convenience to traders and the public generally: they were to be saved the trouble of endorsing cheques on passing them through a bank. In fact the effect has been to create enormous inconvenience quite out of proportion to the amount of time saved in endorsing cheques. The inconvenience has been caused to members of the public who are not in the same position to look after themselves and their affairs as are people who normally receive cheques in payment. Take, for instance, the small person who runs a small business and pays by cheque.
The inconvenience is not so much the direct effect of the Cheques Act—I want to make that clear—as the way the Act is being interpreted by the public at large. As the Government have made clear—and I have accepted their explanation—the Cheques Act has made no difference whatever to the liability of a person to give a stamped receipt for a payment. What has made the difference is the interpretation which has been put upon the Act and which, I would submit, the Government have done nothing, or not sufficient, to make clear. That is one thing.
I want to emphasise the enormous inconvenience that is being caused to small people who do not get receipts. In my own experience I have had quite a number of accounts returned to me stamped "Paid". Anyone can put a rubber stamp "Paid" on a bill. That is no proof whatever that the money has been paid. One can attach the cheque; if one is an orderly sort of person, one can collect the cheques when they come back from the bank and pin them to the accounts, and I suppose that is some kind of evidence that the accounts have been paid. But it creates a large amount of inconvenience to people who are not accustomed to this sort of thing. I dread the time when the accounts have to go to the auditors, who will have to disentagle all this and satisfy themselves that an alleged payment has, in fact, been made.
260 The second point is that I should like to ask the noble and learned Viscount who is going to reply this question: Did the Government really anticipate that as a result of passing the Cheques Act they stood to lose revenue in the neighbourhood of £5 million a year? That is the amount which I have been told has been received by the Exchequer in the last year or so by way of receipts for cheques. I think every noble Lord will bear me out that to-day, by and large, stamped receipts are no longer being given; and that the Exchequer stands to lose, and as time goes on will lose, the whole of that £5 million. Did the Government really anticipate that they were going to lose this amount? If they did, then I must say that, in the light of the present financial position, they have been very free with their money in this respect—more so than they have been in many others. I cannot believe that they really foresaw this. I submit that they ought to have done—they ought to have foreseen that people would interpret the effect of the Cheques Act and take the view that no stamped receipt is now necessary. That is the position.
I should like to ask the noble and learned Viscount who is going to reply: What are the Government going to do about it? Are they reconciling themselves to the loss of this revenue? Are they going to make it quite clear that there is still this obligation on people to give stamped receipts? It was suggested by the noble Marquess, Lord Lansdowne, in an earlier discussion on this matter, that a person who got a receipt which was not stamped was under no obligation to send that document to the Inland Revenue, but that he could if he liked, and that the Inland Revenue would possibly take action. That is hardly a satisfactory way of dealing with the matter, and I hope that the noble and learned Viscount will be able to give us a really satisfactory statement and answer the question that I have put to him.
§ 4.2 p.m.
§ LORD JESSEL
My Lords, from the words of the Motion of the noble Lord, Lord Saltoun, I take it that he is not unduly worried about the loss of revenue resulting from the failure of retail firms to give receipts, but that he is worried only about the inconvenience caused to 261 customers. With regard to the latter, I have made some pretty extensive inquiries, and I am told on the best authority that there has been virtually no criticism by the public concerning the procedures used at the large stores. In these cases a variety of arrangements have been adopted, but in every case the customer has some form of documentation—it may be a monthly statement showing the debits and credits to his account, or it may be a tear-off slip.
I appreciate that some of the smaller shops have not been operating in this manner (the noble Lord, Lord Saltoun, has given us some examples), and this has, I think, caused inconvenience. But I would repeat that one can always ask for a stamped receipt. Alternatively one can send one's cheque, keep the account and make a note of the number of the cheque on it; then, later, if there is any dispute about payment, the paid cheque can be produced as evidence. I think Lord Saltoun says that it is not evidence, but I shall be interested to hear what the noble Viscount, Lord Hailsham, says on that point when he comes to reply. Anyhow, how often is this likely to happen? I should have thought very seldom.
I am afraid that I must challenge the wording of the Motion, where the noble Lord talks aboutthe refusal of retail firms to discharge properly accounts paid by remittance …Surely it is not the payee who discharges the account: it is the payer. The payee may be called upon to acknowledge the discharge of an account, and it is about this that I think the Motion is concerned. Further down in the Motion I must criticise the phrase:and makes a receipt unnecessary.This seems to imply that a receipt is a necessary obligation in the discharge of a debt. Of course it is not; an account is discharged by payment.
A later part of the Motion seems to suggest that there should be a sort of standard minimum wording for proof of discharge. I do not think there can be: it must depend on the facts in each case; but if the wording amounts to an acknowledgment of the receipt of money, the document should bear a twopenny stamp. So, broadly speaking, it would appear that a wording which may not be evidence of receipt may still attract stamp duty. I 262 will leave the noble Viscount who is to reply to deal with the problem of whether a cashed cheque is or is not evidence of payment of a debt, but should like to have his views on another little cheque problem. Does the acknowledgment of the receipt of a cheque require a receipt stamp? It has been suggested to me that it is possible that the acknowledgment of the receipt of a cheque for, say, £5 is not covered by the Stamp Act, although of course the acknowledgment of the receipt of the sum of £5 obviously is.
My Lords, I think that Lord Saltoun's Motion and his speech supporting it have tended to give the impression that the whole business of giving receipts by retailers is still chaotic. I do not think this is the case. When, as the result of the discussions in both Houses on the Cheques Act, 1957, traders suddenly woke up to the existing state of the law, different firms started to employ different procedures—some of them legal, some of them illegal, and some of them causing a great deal of trouble to the customer. But on the whole they were sensible and workable. I myself have had no trouble at all. I get receipts when I want them, and I am not bothered with receipts which I should have torn up anyway. I do not object to the shopkeeper saving a little time and money, if I am not inconvenienced, and I have made it my business to see that that is the case.
§ 4.9 p.m.
§ LORD SWAYTHLING
My Lords, I was most surprised to hear the noble Lord who has just spoken say that he did not think that the position now was chaotic. I take the view that it is, and if the noble Lord who moved this Motion described it so I should have said that he was in no way exaggerating. The various documents that all your Lord, ships must have received from retailers and others have shown what muddled thinking there is on the matter. The mere fact that some retailers send back receipts not stamped as they are required to be under the Act, shows that those retailers did not know that they should stamp the documents. Others give a normal receipt saying, "Paid by cheque"; they think the words "by cheque" cover the matter. Others just stamp the bill "Paid", and they, too, think that if they do not put a date or a signature they have not made a receipt and have not got to put a stamp on it.
263 The Local Chamber of Trade in the area in which I live, and of which I have the honour to be honorary president, have put forward a resolution to be considered by the National Chamber of Trade at their conference next month, and, if I may, I should like to read that resolution to your Lordships:That in view of the confusion that has arisen as a result of the operation of Section 3 of the Cheques Act of 1957 whereby large numbers of distributors no longer give receipts for payment by cheque and in view of the fact that to the retail trader and private customer receipts are of great value, this Chamber desires Her Majesty's Government to rescind Sections 101, 102 and 103 and that part of the First Schedule of the Stamp Act, 1891 (as amended) which requires the placing of a twopenny stamp on receipts of £2 and over.I should point out to your Lordships that that resolution is down for discussion by the National Chamber of Trade. It has not yet been passed by them but has been passed by local Chambers. Those who take the view that the provision requiring a stamp should be rescinded are of the opinion that this whole difficulty arises through those traders who are trying to save the twopence on the receipt. They feel that if this rescindment were made receipts would be issued normally and that the great difficulties which small traders have with their accountants and those who have a great deal of work to do for them in these matters, would be overcome. It would also avoid the continual contravening of the law with regard to the giving of receipts without stamps. I know that the noble Viscount who is to reply will be unable to make any promise that such legislation will be brought in or such change made, especially at this time of the year, before the Budget; all I would ask is that he will promise that this will be considered in order to give assistance to many small traders and private individuals throughout the country.
§ 4.13 p.m.
§ LORD ARCHIBALD
My Lords, may I intervene to underline the point made by my noble friend, Lord Silkin. He said, I believe correctly, that the purpose of the Cheques Act was to reduce the amount of administrative work in business and industry in general. It may be that there are some industries or some branches of commerce that have benefited from it, but I am bound to say that there are others whose work has 264 been vastly increased—not necessarily by the Cheques Act but by the interpretation put on that Act by many business firms. I am not so much concerned with the point made by the noble Lord who put down this Motion, about the effect on the housekeeper, because as a housekeeper if I do not get a receipt I am quite willing to take a chance that I may be sued, when I will take my returned cheques as proof that I have paid the bill.
As a small farmer, however, I find in practice that the number of cheques I receive, which formerly I had to endorse, is much smaller than the number of accounts I have to pay; and when I come to the much greater number of accounts that I have to pay I find there is a most extraordinary range of systems in the types of receipt I get. They range from that of one firm, which has what I regard as the impertinence to send me a roneoed form on which they ask me to list all the invoices which my cheque covers, when they will graciously send me back this roneoed form (on which I have copied out all the dates, invoice numbers and amounts and presumably added them up—I hope correctly) with some form of acknowledgment that I have paid the listed items. I regard that as the most extreme abuse of the purposes of the Cheques Act.
Then there are those who send me back so-called "receipts" for amounts in excess of £2 without a stamp, with various wording such as has been mentioned here, "Cheque received", or "Paid", or whatever it may be. Some do not send back anything at all not even the statement; so that I now have in my files, proper receipts, improper receipts, cancelled cheques and, in some cases, almost nothing at all. As my noble friend, Lord Silkin, has said, the purpose of the Cheques Act was to simplify matters, not complicate them; and I suggest that all we have heard this afternoon is indication that far from achieving its purpose it has, for a great number of people in this country, involved an additional amount of work, confusion and irritation; and that the whole matter is due for reconsideration.
§ 4.16 p.m.
§ LORD CHORLEY
My Lords, I should like to say a word or two about this subject. As a member of the Committee 265 which considered the question of abolishing endorsements on cheques, I have had to give a good deal of thought to the whole problem over the last few years. That Committee was under the chairmanship of Mr. Alan Mocatta, a well-known Queen's Counsel and an eminent leader of the Commercial Bar. Those of your Lordships who have taken the trouble to read the Report of the Mocatta Committee will. I am sure, appreciate that a good deal of the Report is taken up with the possible effect of an amendment of the law on this question of receipts.
Probably we of the Committee gave as much time to this problem and heard as many witnesses on this point as we did in regard to the whole of the other matters combined. It was obvious to us that the effect of abolishing the need for endorsements on cheques and putting into a Bill a clause to the effect that a paid cheque should be prima facie evidence of the receipt of the money in question would result in a substantial reduction in the issue of stamped receipts. So much was that so that we put the matter to the Treasury. Therefore it was perfectly clear from the start that there would be a likelihood of substantial loss of revenue; and Her Majesty's Government were perfectly well aware that that was likely to occur.
I am interested in what was said by the noble Lord, Lord Swaythling, about proposals coming from Chambers of Commerce that the need for a twopenny stamp on receipts should be altogether abolished, because it has always seemed to me that this type of taxation is completely antediluvian. Taxing business transactions—which is really what it comes to—is mediæval and ought to have been abolished long ago. There are areas of commerce in which that is much more serious than it is here. There is quite a heavy taxation on marine insurance policies, which is lunacy because it is in the interest of the community to encourage transactions of this kind, rather than to penalise them by raising revenue from them.
§ LORD CHORLEY
My Lords, that is rather another point. I believe it would be useful if Her Majesty's Government abolished the need for a twopenny stamp. They will not be getting very many used at the moment, and they might as well face up to the position.
§ LORD CHORLEY
Well, I think that should, too. I have criticised for years the levying of a tax on cheques and bills of exchange. After all, businessmen who use cheques save the Government an enormous amount in currency by the use of mercantile currency—because that is all a cheque is: it is a form of money. It is indefensible for the Government actually to tax the people who are providing mercantile currency and thereby saving the Government itself the need for providing a very much larger amount of ordinary currency, which would be required if cheques were not so largely used. Therefore, I do not feel there is a great deal in this particular point.
With regard to the other matter, which is obviously more serious, namely, the inconvenience felt by many people, I think one has to balance that against the enormous saving of time which is being effected in the banks and in the big business houses. And that, after all, was the main object of this Act. I think the inconveniences are really teething troubles. They are due largely to conservatism on the part of people who do not properly understand the legal implications of these transactions—and it is very natural that they should not do so. The inconveniences are largely due to ignorance and conservatism, which eventually will settle down, and in a year or two the whole thing will be forgotten and the system will be working smoothly again.
The situation which the Cheques Act has brought to an end was a situation which had grown up, and which could be criticised in all sorts of ways. It is absurd to suggest that until the Cheques Act was passed all tradespeople who were paid by cheque invariably sent receipted accounts to the drawers of the cheques. They just did not. Looking back the other day over a whole set of accounts which I had in a drawer, I found that quite a number of them were 267 not stamped, and that some bore a statement to the effect that the amount had been received by cheque. That was a very common type of receipt one had on an account: the words "Received by cheque," followed by the amount concerned; and that is the situation which has been reached under this Cheques Act. I think that, if the matter is just left to work itself out, in a year or two the whole thing will have been forgotten, and we shall be rather puzzled that we made such a noise about it.
§ 4.23 p.m.
My Lords, the noble Lord, Lord Chorley, has said that most troubles over this matter are caused by ignorance or conservatism; and I must confess that in my case the trouble is due to a superabundance of ignorance. I should therefore be grateful for a little enlightenment. But I must wholeheartedly endorse what the noble Lord, Lord Archibald, said, because I find receipts which are peculiarly valueless; and I think I could cite one instance that went even further than that referred to by the noble Lord. I was sent a bill, and to it was attached a piece of paper asking me whether, if I wanted a receipt, I would signify that on the attached piece of paper.
The dilemma in which I find myself is one in which I think other noble Lords find themselves; and it concerns the question of the twopenny stamp, and whether it is supposed to be affixed or not. I have been under the impression, since the passing of the Cheques Act, that virtually two things have come to pass: first, that you do not have to endorse a cheque; and secondly, that the person who receives a cheque is not bound to put a twopenny stamp on the receipt. But apparently that argument is stultified when one pays in a Government cheque or a Government payable order, because then one has to affix a twopenny stamp and sign it. That would seem to be a very curious state of affairs; and even the bank clerk to whom I handed a cheque recently said to me, "The Government make these laws which apply to everyone else, and they do not keep them themselves." I do not know whether the noble Viscount can give any enlightenment on that, as to whether or not it is necessary for a twopenny 268 stamp to be affixed and whether or not it is necessary to sign a cheque which the Government themselves pay out.
§ 4.26 p.m.
§ LORD DOUGLAS OF BARLOCH
My Lords, may I ask the noble Viscount who is going to reply to this discussion whether the legal position is not this: that there is no obligation at Common Law upon any person to receipt an account which has been paid to him; that that is still the position with regard to payment of accounts of under £2, but that with regard to accounts for sums of £2 and over the position was altered under the Stamp Act of 1891, which provides not only that a receipt for £2 and over must bear a twopenny stamp but also that the person who makes the payment is entitled to demand a receipt when the amount is over £2? That latter provision, of course, was provided for the purpose of protecting the Inland Revenue, but it did not result in any legal right to a receipt as between the person making the payment and the person receiving the payment; it only created a statutory offence for which the person who failed to render a receipt for £2 or more when requested to do so could be prosecuted and fined up to £10.
That was the law, and is the law, surely, despite the passage of the Cheques Act. All that the Act has done is to make the fact of the discharge of the cheque (not the discharge of an account for goods or services or anything else) effective without the cheque being endorsed, provided that the cheque is paid into the payee's account. That is the only difference. No endorsement is now required on the cheque. But a cheque is merely a means of transferring some money from one person's account into the account of another. It gives no proof, on the face of it, of what the purpose of that transfer of money was. And that is the reason why, in the ordinary course of commerce, it has been the practice hitherto to send a receipt which identifies a transfer of money with an account for goods or services, and creates evidence that the account has been paid and that the person who has received the goods or services is no longer under the obligation to pay for them.
The noble Lord, Lord Saltoun, and the noble Lord, Lord Swaythling, have 269 suggested that the logical consequence of the Cheques Act is that the stamp duty upon receipts should be abolished. The result of that, of course, will be that there will be no power whatever to require any person to give a receipt when his account is discharged, because the only power to require it now is that of the penal consequence of failing to give a receipt when it is demanded and to put a twopenny stamp on it.
§ 4.30 p.m.
§ THE LORD PRESIDENT OF THE COUNCIL (VISCOUNT HAILSHAM)
My Lords. I will begin by making a confession, which I am afraid will get me into as much trouble when I make it now as it has always done in the past when I have made it to members of my profession when professing ideas about law reform—namely, that all law reform has in practice effected more harm than good. I also confess that I had thought I had found an exception to this rule, when it fell to my lot not so long ago to reply on behalf of the Treasury to the debate on this little Act, the Cheques Act, which was a Private Member's Bill produced, as the noble Lord, Lord Chorley, has reminded us, as a result of the work of the Mocatta Committee and designed to overcome the necessity, in practice if not in law, for the endorsement of cheques. It was a measure designed solely for the purpose of saving bankers and individuals time and money and not designed to affect (although the noble Lord, Lord Chorley, is right in saying it was anticipated that it would affect), and did not in law affect, the law of receipts one way or the other.
I thought that this relatively harmless little Act, which I was bidden by my masters to welcome on behalf of the Government, was really an exception to the general rule that law reform is always more harmful than beneficial. This debate shows how wrong I was. Yet it was a valuable little Bill. The Mocatta Committee pointed out how much time and money was wasted endorsing cheques, and it seems to me that, if we were living in a rational world, the Act would have been unexceptionable as a piece of law reform. However, I would agree with the noble Lord, Lord Saltoun, who introduced the subject to-day, that in practice it has resulted in a certain amount of inconvenience. I will go on 270 to describe the inconvenience and what I feel about it in a moment.
I must say that there has been a certain diversity of counsel among noble Lords about what ought to be done. The noble Lords, Lord Saltoun and Lord Swaythling, were keen on the abolition of the duty on receipts altogether. When not discussing inflation it is always popular to solve a problem at the expense of the Treasury, and when you are talking about inflation to say that the Government always put the pound last. This I recognise. However, the noble Lord, Lord Silkin, came to the aid of the Treasury—a veritable lion under the Throne—and said that we should have been careful not to be so free with our money (I think that was his phrase) when we supported a Private Member's Bill. The noble Lord, Lord Chorley, did not agree with him. So far from being concerned with the revenue, he described the tax as antediluvian, and would abolish the twopence on the cheque, too. Whereas the noble Lord, Lord Silkin, says that the Government must really do something about it, his noble friend Lord Chorley says that it will all work itself out in time, if we do nothing whatever. So I have a large number of potential courses from which I can choose in giving such advice as is open to me to give your Lordships.
I must agree with the noble Lord, Lord Swaythling, when he said that he could not expect me to answer a request for the reduction or abolition of the tax. The natural life of a Minister who at this time of the year appears to anticipate, or actually does anticipate, the Budget is apt to be like the natural life of man—"Solitary, poor; nasty brutish and short." And I must agree with the noble Lord, Lord Douglas of Barloch, who pointed out to both noble Lords, in their zeal to reduce taxation, that the only effect of abolishing the tax would be at the most to abolish the only obligation on the part of a creditor who has been paid to afford any kind of receipt at all. Therefore, whatever might be said of the proposal for the abolition of the tax, it is hardly apt to reduce the inconvenience complained of.
§ LORD CHORLEY
My Lords, would not the noble Viscount agree that if payment is made by cheque, the trader has 271 to pay the cheque into the bank to get it cashed, and then, under the Act, it becomes evidence of payment, so that in that way the object is achieved?
§ VISCOUNT HAILSHAM
My Lords, the noble Lord, Lord Douglas of Barloch, has already dealt with that point and I am proposing to deal with it again in the course of what I have to say; but the point is rather like the curate's egg, only good in parts, and not good enough, as I will try to indicate.
If we forget about legal technicalities for a moment, I should like to say that I agree with those noble Lords who find that the practice of traders in withholding receipts, with the rather misleading notice headed with the irrelevant words, "Cheques Act, 1957," is inconvenient to those who pay their debts. I share the indignation of noble Lords in this respect. I would say this, as my personal opinion and without great consultation with my colleagues: that I find this very inconvenient, and I do not agree with the noble Lord, Lord Chorley, that this is a mixture of conservatism and ignorance on my part.
§ VISCOUNT HAILSHAM
I shall hope to show that this conservatism has a good deal of common sense behind it. In spite of the view of the noble Lord, Lord Chorley, the fact is that from a business standpoint, as the noble Lord, Lord Archibald, has recognised in the conduct of his own business as a farmer and as most of us recognise in the conduct of our own different businesses, by far the most convenient and, in my judgment, the only businesslike way of closing a transaction is by a receipted account, which, in the case of a payment of £2 or over, attracts a stamp for revenue of 2d. This requirement is not a question of law but a question of business.
Of course, if we are to be technical—and how much I enjoy returning to technical matters of law for a moment on the invitation of my noble friends!—there are many ways in which payment of a particular sum of money can be proved. One can prove it by oral evidence, by somebody saying, "I paid"; and if he is believed that is the end of the matter One can prove it by certain presumptions 272 of fact or law; one can prove it from documents, by reference to bank accounts, by a paid cheque, by entries in the books of a business and, if one cares to be rococo, one can prove it by hearsay evidence of a deceased person's declaration. For all that, there is no method of proving the payment of an account quite so good, quite so effective, or so businesslike, or for practical purposes so conclusive, as a nice, receipted account, especially when the receipt is actually attached to the account. This is business, not law; but most lawyers have had some experience of business and know this to be the case.
The noble Lord, Lord Chorley, says that payment by cheque is good enough. The noble Lord, Lord Saltoun, is perfectly right when he says that it is not necessarily good enough. It is true, of course, that under the Cheques Act, or before it, a paid cheque was evidence of payment of the particular sum referred to in the cheque. What it does not do is attach the payment of that sum of money to a particular bill. Of course, in many cases the coincidence would be conclusive in actual fact. If one pays a cheque for £5 13s. 2d. and it so happens that the day before one received a bill for the same sum, it is likely that the court would draw the inference that the paid cheque had something to do with the bill received. But if, in fact, one does not pay exactly that sum but a round sum of money, either a sum on account or a sum covering a number of items, this might give the opportunity to the trader, if he were sufficiently dishonest, like the trader in Lord Saltoun's real or imaginative case, to say that it was really an advance of money, an accommodation cheque, designed to give the payer of the cheque money to go to the races, and had nothing whatever to do with the payment of a bill.
I am not talking law but common sense for a moment. I think it is true that there is no method of payment of an account or clearing a transaction which is really businesslike, except the return of the bill with a formal receipt attached to it. I may say that I deeply regret that the trading community, out of a desire, no doubt, to gain a little at the expense of the Revenue, should have departed from a practice which was the only business-like practice and the only one for the convenience of the payer of the debt, who 273 is a gentleman, I should have thought, to whom the ordinary trader owed a certain amount of gratitude instead of inconvenience.
There has been great diversity of counsel in this debate, but one fact has emerged as universal agreement; that is, that before the Cheques Act was passed nobody complained at all, because nobody had anything of which to complain. I would urge traders to go back to the sensible practice which existed before the Cheques Act. That Act contains nothing, as I shall proceed to show, which has anything to do with the practice we are now discussing. Any trader who puts the words "Cheques Act" on his account as an excuse for not giving a receipt is giving an irrelevant reason for causing his customer inconvenience. Let us get back to the practice which caused so little complaint before.
I would say this, in passing, to the gentlemen of the Chamber of Trade, for whom the noble Lord, Lord Swaythling, speaks. Of course, we all hate taxation of all kinds; but among the few things which have not gone up in recent years are the 2d. stamp you have to impress upon a cheque and the 2d. stamp you have to put on a receipt for £2 or more. When the whole world of the taxpayer is complaining of quite unprecedented burdens, added in many different ways by new and sometimes unthought of and anomalous taxes, I should have thought that if the Chamber of Trade really wanted to take the burden off the taxpayer they could think of many more suitable ways for the Chancellor of the Exchequer to expend his money than by the abolition of this lax in the hope that it would restore a practice which ought never to have been departed from. If it were adopted, it would have the legal effect, as the noble Lord, Lord Douglas of Barloch, said, of taking away the only obligation to give a receipt which has ever been imposed on traders. Therefore, I do not think that there is much in that argument from the point of view of merit.
I would now return to the legal position for a moment. First of all, as the noble Lord, Lord Douglas of Barloch, said, there is no general liability to give a receipt unless one is asked for. If a receipt is in fact given, and is for £2 or more, it attracts twopence stamp duty. If 274 a sum of money of £2 or more is paid and a receipt is asked for, it must be given. Of course, we could, if the House thought right and if Parliament thought right, pass a law saying that traders were under a general obligation to give a receipt. Personally, I should be reluctant to impose a new burden of that kind on traders, which is one that has never hitherto been imposed and is quite unenforceable except by private information from one or other of the parties to the transaction. I should have thought that such a law, although it would get rid of the obscurity, would be a greater burden than the circumstances warrant; it would be using a steam-hammer to crack a nut.
But I must say this, in relation to the receipt. There is no magic in the terms of the receipt. May I read out the definition of "receipt" for the purposes of the Stamp Act; because the mere reading of the definition will, I think, get rid of a good many of the doubts and difficulties of some noble Lords. I read it without very much comment, because, although I am happy enough to tell the House what I believe to be the law, what I believe to be the law has no significance at all, since it is not part of the functions of the Executive to expound the law, and should the courts take a different view it might prove expensive to your Lordships if you acted on my opinion. What the Act says is this:For the purposes of this Act"—that is, the Stamp Act—the expression 'receipt' includes any note, memorandum, or writing whereby any money amounting to two pounds or upwards, or any bill of exchange or promissory note for money amounting to two pounds or upwards, is acknowledged or expressed to have been received or deposited or paid, or whereby any debt or demand, or any part of a debt or demand, of the amount of two pounds or upwards, is acknowledged to have been settled, satisfied, or discharged, or which signifies or imports any such acknowledgment, and whether the same is or is not signed with the name of any person.I would quite seriously say this to traders—and, indeed, to my noble friend Lord Saltoun. In my view, for what it is worth, all these various devices of sending acknowledgments for monies which have been paid of £2 or upwards which are not accompanied by a stamp are, in fact, illegal. There is no device whereby you can escape from this wording by means of some ingenuity. You attract a penalty to yourself if you do 275 not put a twopenny stamp on your receipt. Indeed, if I may be a little facetious for a moment, as I have always understood the law, if your aunt gives you £5 for a Christmas present and you do not sign your "thank you" letter over a twopenny stamp you are, in fact, incurring a penalty, although I have never known of a case where the Revenue so acted. This idea that you can say money is paid by cheque and affix no stamp is contrary to the terms of the Act; and the kind of circular device which my noble friend Lord Saltoun kindly put into my hands is contrary to it too. Any form of something intended to be an acknowledgment for money, in my judgment at any rate, attracts a penalty if it does not bear a stamp.
The second thing I want to say about the law is this. A paid cheque has always been evidence of payment, subject to the qualification I pointed out: that it does not necessarily show what the cheque was paid for. It would be disastrous if we repealed that provision of the Cheques Act, because the rule, which has always been the rule, operates for the benefit of the debtor, and its abolition would, in some cases at any rate, make it more difficult to establish the truth, in my view, the fact that a paid cheque is evidence of the payment of money affords no business justification whatever for the withholding of a receipt—and that for two reasons. First of all, it is less easy to identify the appropriation of the payment to the discharge of a particular debt than is the case with a receipted account; and secondly, as has been pointed out more than once since this matter has come before your Lordships' House, there is a time lag between the issue of the cheque and its return by the bank.
If I may say so, it is not necessary for the debtor to go to all the lengths proposed by my noble friend Lord Saltoun. Since this nuisance began to happen to me, I have hit upon a personal device for getting rid of it. Whenever I give a cheque I accompany it with a compliments slip, or some other kind of note, and my compliments slip now always bears the words: "Receipt is especially requested". And if any trader fails to send me a twopenny stamped receipt on receiving this document, if the bill is for £2 or upwards, I shall be pleased to 276 send what he does send me to the Revenue to attract as big a penalty as they seek to inflict. Any housewife who is annoyed, as the noble Lord, Lord Archibald, has been justifiably annoyed, at getting this kind of treatment from a trader, should cover the cheque in payment with the words: "Receipt is especially requested", and the trader is then bound to give her a twopenny stamped receipt on pain of being liable to a penalty.
§ LORD ARCHIBALD
My Lords, might I suggest to the noble Viscount that it might help to fortify the Revenue if the Government would make a free issue of rubber stamps with the terms, "Receipt required" upon them?
My Lords, may I ask whether the practice which the noble Viscount has undertaken recently is, in fact, legal and correct?
§ VISCOUNT HAILSHAM
My Lords, I should not do it if I did not myself believe so. As I have already warned noble Lords, I do not think there is any magic in whether the words are printed. written, signed, typed or roneoed, or what particular form of words is used, provided that it is made plain to the trader that he has to give a receipt, "or else." My judgment of the matter is that that is the sensible course to take, if traders insist upon what, to my mind, is an inconvenient and unjustified practice. That is the only answer I can give, and traders are entitled to disregard it, because it does not represent more than my opinion However, we shall no doubt see whether I am right or wrong.
On the second part of the question raised by my noble friend Lord Saltoun, I do not think it is desirable to lay down rules either as to what is admissible as evidence of payment or as to what is conclusive evidence of payment. On general grounds—and I think I am correctly expounding the law here—the courts would accept as proof that which in the context is, in fact, logically probative, and they should not bind themselves by arbitrary rules beyond what common sense requires. There are certain rules like hearsay, whereby certain types of evidence which most of us would regard as logically probative would be excluded by technical rules, but ordinarily speaking I should have said that any 277 evidence which is cogent and common sense would be accepted by the courts. Of course, a receipted account would, in ordinary cases, be treated as conclusive evidence of payment, subject, of course, to the ordinary possibility that by oral or extrinsic evidence you could prove fraud, mistake or something of that kind. It is riot in law an absolute presumption of payment, but it is in practice, in the absence of contrary proof, conclusive evidence of payment.
My Lords, I think I have covered most of the questions I have been asked, and I have tried to cover them frankly and candidly. The only thing I have not answered is: What ought we to do about this matter? f will put forward tentatively my own feeling, which is not so different from the view of the noble Lord, Lord Chorley, as most of my opinions are from his opinions, or have been in the past. In the first place, we could of course, impose on traders the obligation to give a receipt. For the reason I have indicated, I should be reluctant to endorse such a suggestion at the present time. It would be imposing a new burden on traders which has never been imposed before.
Secondly, we could repeal the section of the Cheques Act which has given rise to the difficulty. I think that would be a pity, because, as I have pointed out, it operates to the advantage of the debtor and not to his disadvantage. It would, if it were carried into effect, be rendering the state of affairs more and not less difficult to prove. Moreover, abolishing the duty would not have the effect suggested in the speech of the noble Lord, Lord Swaythling. It would have the effect suggested by the noble Lord, Lord Douglas of Barloch. My suggestion, therefore, is to let the traders recognise that the Cheques Act has made no difference at all, and let them go back to a practice which caused no complaint before the Cheques Act was passed. Let them take the Cheques Act for what was intended —something to save them from the bother of endorsing cheques, and not to save them from giving receipts. If the public will, co-operate by adopting the simple device which I have suggested, traders will have to do it in an increasing number of cases. If they do, we shall not hear any more of this interesting but troublesome matter.
§ 4.55 p.m.
My Lords, I am grateful to those noble Lords who have helped me in this debate. I should like for one moment to turn to my noble friend Lord Jessel. I have shown him the account with that equivocal acknowledgment. I think he will agree with me that if he told them there was any greater firm in London than Selfridge's, they would be insulted. Therefore, it is not only the little people who do this.
My Motion includes the words:… discharge properly accounts paid by remittance …I know that until I was nine years old I spoke such broad Aberdeenshire that my mother could not understand me. But I have been learning English ever since, and it shows that one can be learning a language all one's life and, if it is a foreign language, never get there. But in the North a "discharged" account happens to be quite a usual and technical expression. When you send a cheque, the most formal method of asking for a receipt is, "Will you kindly return this account discharged." As I say, I do not set out to speak English, which is perhaps still a foreign language. My Motion also includes the words, "and makes a receipt unnecessary." My noble friend Lord Hailsham has dealt with that, and I should like to thank him for the detail he has gone into, and the trouble he has been at to expound this matter. It is exactly what I wanted and hoped for.
I would suggest only one thing more. If people do find a difficulty in getting receipts and are not in a strong position, but do not want to have a quarrel with their retailer, there is a practice which I used to adopt when I was young and: which I modify now for your Lordships. I used to write on the cheque, "To pay A.D. in full settlement of account to date"—and then the date can be added. In the old days, it was the date of the cheque which mattered; nowadays, the tradesmen send an account perhaps a month or three weeks in arrear, and do not put on a date. I think it would be very difficult for anybody to cash a cheque like that and then claim that arty account before that date was unpaid. But that is only my own suggestion. My noble friend Lord Hailsham will 279 whisper in my ear, after we have adjourned, whether it is going to be effective or not. In conclusion, I should like to thank the noble Viscount for the exposition he has given us, and say that I am grateful for it. I ask your Lordships' leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.