§ 7.31 p.m.
§ Report of an Amendment received (according to Order).
§ VISCOUNT COLVILLE OF CULROSS moved, after Clause 2, to insert the following new clause:
§ ".A member of the Council on Tribunals, in his capacity as such, may attend any hearing conducted under subsection (2) of section 231 of the Local Government Act 1933 (procedure on appeal or application to the Minister in respect of the district audit)."
§ The noble Viscount said: My Lords, I moved an Amendment similar to this on Committee stage, and there are now only two differences in the situation. I hope, first, that I have the drafting right, and, secondly, I have done some more research to see whether I could find out what the origin of this particular provision is. It might be worth while briefly to set out what the problem is. Under Part X of the Local Government Act 1933, there is a power in the district auditor to surcharge a member of the local authority who has gone beyond the powers that the law allows. If this is done, and the surcharge is in a sum over £500, then that councillor is automatically disqualified under Section 59 of the Act from serving on that local authority for five years, and he can appeal. If the sum is £500 or more, he can appeal only to the High Court. In the Audit (Local Authorities) Act 1927, which is where this provision first came from, it was made quite clear that the Minister of Health, as he then was (it would be now the Minister of Housing or the Secretary of State for Wales) was not to interfere in these important matters because it might be thought that some political pressure had been brought to bear. Therefore, where there was a question of disqualification the matter had to go to the High Court.
§ Of course, there are the smaller sums as well. In that case, the matter, which did not involve disqualification, could go either to the High Court or to the Minister. If it goes to the High Court, if it is either over or under £500, it is provided by Order 118 of the Rules of the Supreme 223 Court that the matter should be dealt with in public. But if it goes to the Minister, then Section 231(2) says that the Minister shall provide the applicant or the appellant with a personal hearing. As I understand it, successive Law Officers have advised successive Governments that when it says a "personal hearing" it means a private hearing. I thought it would be most presumptuous of me to question what successive Law Officers have said on this matter. Nevertheless, I totally fail to understand the logic of it. It was suggested that what Parliament had done was to provide an alternative method whereby the matter could be dealt with privately, if the applicant or appellant chose.
§ The noble and learned Lord, Lord Parker of Waddington, said that in his view this was not so at all, and although unfortunately the OFFICIAL REPORT left out a crucial point "not", I hope nevertheless that the House will recall what he said and interpret it in the way I have suggested.
I therefore thought that it would be worth while seeing whether I could find out how this provision came to be in the law at all. My Lords, I have, because I have found a speech by the father of the noble Marquess, Lord Salisbury, which he made on December. 15, 1927, on the Second Reading of the Audit (Local Authorities) Bill. What he said was this:
Lastly, the practice in respect of these appeals is that appeals to the Minister—that is the appeals as they will be in future—in respect of small sums of money are decided without a personal hearing by the appellant."—[OFFICIAL REPORT, Vol. 69, col. 1040; 15/12/27]
What happened—it is dealt with under Section 155 of the Poor Law Act 1927, among other places—was that the Minister simply decided, without hearing anybody on the matter at all. When Parliament came to deal with this in the second Bill in 1927, the Audit (Local Authorities) Bill, they decided that a personal hearing should be provided. The noble Marquess went on:
That also is not consonant with our modern view. If a man appeals he ought to be heard. Therefore there is a provision that where he appeals to the Minister he shall always have a personal hearing by some official appointed by the Minister for the purpose.
It seems to me to be clear beyond a peradventure that that is how the matter came to be enacted in the first place. The 1933 Act was a Consolidation Act and, therefore, the matter was never debated, so far as I can find out, in either House.
§ What I am asking now is that, since the Council on Tribunals are required to supervise hearings of this kind held by the Minister under this subsection, they should have the right, if they want, to go and listen to the hearing. I am not suggesting that they should retire with the inspector, or in any way influence matters, but simply that they should go and listen. That is what my Amendment provides. I hope it does it right this time, and I beg to move.
After Clause insert the said new clause.—(Viscount Colville of Culross.)
§ THE LORD CHANCELLOR
My Lords, although I opposed a similar Amendment on Committee stage of the Bill, I am not proposing to divide the House on this Amendment to-night. There has been a dispute between the Council on Tribunals, and, I think, three successive Governments, as to what the words "personal hearing" mean. Three successive Governments have been advised by their Law Officers that it means a hearing in private. The Council on Tribunals says that it means only a hearing in person. Whichever of those views is right, so long as it is not said that by accepting this Amendment I am setting some precedent, I do not honestly think it matters two hoots one way or the other. These inquiries will be few. The Ministers concerned do not object, and so long as it is not said that I am setting a precedent it is not, I think, worth having any further dispute about this. For those reasons, I do not propose to divide the House on this Amendment.
§ On Question, Amendment agreed to.
§ 7.38 p.m.
§ THE LORD CHANCELLOR
moved to leave out Clause 3. The noble and learned Lord said: My Lords, this was another matter which was also considered in Committee when this clause was put in. I think there is some ground for asking the House to reconsider what happened in Committee, for the following reasons. First, I do not think that either 225 the noble Viscount or I, if I may say so, were aware of all the relevant facts. I pointed out at the time that the House had given me leave to go to America on a Thursday. The Committee sat on the following Tuesday. I came hack on the Monday, the Amendment having been put down on the Friday while I was in America. As I said then, this is no complaint; the noble Viscount was quite entitled to do that. But in the result a dispute arose between us of this nature, but we both agreed that, so far as these proceedings before the Betting Levy Tribunal were concerned, they were similar to, and could not really be distinguished from, the proceedings before Inland Revenue Tribunals, namely, the General Commissioners of Income Tax and the Special Commissioners of Income Tax.
The noble Viscount, in dealing with this matter in his opening, said, first, that it would seem that the hearings were not distinguishable from the Revenue tribunal hearings; secondly, that the Council on Tribunals could attend as of right all those hearings. I said that that was wrong. I agreed that the point was similar to the Inland Revenue tribunals, but said that the Council could attend only if the taxpayer did not object. In reply, the noble Viscount again said that, as he understood it, I was wrong and that they could attend as of right. What those present drew from all that, with one lawyer saying one thing and another saying the other, I do not know. There were only a handful present, and the situation was not improved by the fact that when the Division bell went (as he was entitled to do, the noble Viscount pressed the Amendment to a Division) about 30 noble Lords came into the Chamber who had not the foggiest idea what was going on. And I am authorised by my noble and learned friend Lord Dilhorne to say that he came in and he voted with the noble Viscount because he did not know what it was all about, but that, if he had known, he would have voted the other way. These facts justify me in asking the House to reconsider the question.
The noble Viscount was erroneous in thinking that the Council were entitled as of right to send somebody to a hearing of the General or Special Commissioners of Income Tax. The position is that for over 100 years successive Governments 226 have maintained jealously the right of the Inland Revenue to refuse to give any information to any third party as to a taxpayer's affairs disclosed to them. They do not even tell their wives; they do not tell anybody. As I said last time, if you once start to make exceptions I am sure the Council on Tribunals would be a very good exception. Another very strong case is that of the wife who is deserted by her husband and gets a maintenance order, and then he disappears. One person who knows where he is and how much he is making is the Inland Revenue. But even in those circumstances no Government, of any complexion, has agreed to waive this restriction on disclosure. It being agreed that this case of the Betting Levy tribunal ought not to be separated from the Inland Revenue case, the same thing must apply.
I have looked at the debate on the Betting Levy Bill. Your Lordships may remember that the bookmakers and the Totalisator were to be treated alike, and as there was to be a levy on the Totalisator for improvement of British bloodstock, so the bookmakers had to pay a levy, too. There is the Betting Levy Board, but the Board were not to conduct the levy on the bookmakers. There was to be a bookmakers' committee who were to draw up categories of bookmakers according to turnover, and all the bookmaker had to do was to make a declaration that he came into such a category. If the committee did not believe him they had no powers to look at his books or cross-examine him. They put him in a higher category, and then he could appeal to the Appeal Tribunal, an independent body; and to satisfy them he would have to produce his books.
It is a little interesting that in the Committee stage in this House the noble Lord, Lord Denham, moved an Amendment to provide that the Board itself should make the levy, that the Board's inspectors should be allowed to look at the bookmakers' books, and, in the final provision:The Levy Board and its agents shall he under a similar obligation to preserve the secrecy of the accounts of individual bookmakers as are the Commissioners of Inland Revenue regarding the accounts of individual taxpayers.That Amendment was not accepted by the Government, because, as the noble Earl, Lord Bathurst, who was speaking 227 for the Government, said, this was making much too heavy weather of it. One should not expect that most bookmakers would put themselves in the wrong category. We do not want a horde of inspectors inspecting the accounts of every bookmaker. It is much simpler to do what the Bill says: let the committee put them in one category or another without the right to see the books, and if a particular bookmaker feels that he is in the wrong category he can go to the Levy Board.
Apart from that there is one additional reason why I would ask your Lordships to accept this Amendment. I have since last time ascertained more clearly exactly what has happened in relation to the Betting Levy Tribunal and the Council on Tribunals. They did attend one case in Scotland, when the question of whether or not they should be there was never raised by anybody. They have never attended the Scottish tribunal again, for the reason that the chairman is also the chairman of a number of other tribunals, and they have seen a lot of his work and entertain a very high opinion of it. So far as the English tribunal is concerned, just as they have attended hearings of the General Commissioners when the taxpayer has not objected, so they have attended hearings of the Betting Levy Appeal Tribunal where the bookmaker has not objected. So they have, in fact, seen how the scheme works. Lord Hamilton of Dalzell, one of the members of the Council, attended one hearing, and I have his report here. He says:The room was a small court room and very suitable for the purpose. The chairman conducted the proceedings admirably, explaining the procedure to the appellant and giving him full opportunity to state his case. Then he heard two other appellants who had given consent to my being present. Neither appeared in person.Then he says:The remaining persons had not given written consent, so I withdrew.So this does not preclude, either in the case of the Revenue tribunals or the Betting Levy appeal tribunals, members of the Council from being able to go and see how these tribunals work, because in both cases experience shows that there are a proportion of taxpayers, in the one case, and bookmakers, in the other, who do not object; and the Inland Revenue have 228 no objection at all if the taxpayers consent. For all those reasons, I would ask your Lordships to review the decision which was made in Committee and to accept this Amendment to leave out Clause 3. I beg to move.
Leave out Clause 3.—(The Lord Chancellor.)
§ 7.47 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, of course I must be the first to agree with the noble and learned Lord that some of the information which I put before your Lordships last time was incorrect, and I think he had the better of the argument, so far as that is concerned: the facts have turned out as he said. Nevertheless, I believe that the point I sought to make then does give rise to a matter which the House might care to note.
It may be (this is really a matter for judgment, and I am not so sure that I am now quite so certain as I was at Committee stage) that the Betting Levy appeal tribunals are analogous with the tax tribunals. Your Lordships may think that is so. On the other hand, I was particularly interested to see the rules made for the industrial training tribunals, before which the matter of the levy under the Industrial Training Act 1964 is discussed when there is an appeal. This particular levy is raised by what is known as a levy order, and there are, I think, five orders in force at present. The method is to take a percentage of the total emoluments of the persons employed in the establishment concerned—0.5 per cent., or 2..5 per cent., or £7, or something like that. These must be matters which, particularly since the advent of the selective employment tax, are extremely confidential and personal matters, very similar to those raised before the Betting Levy appeal tribunal; very similar to tax cases.
The regulation which deals with the procedure (it is paragraph 6(1) of the Schedule to the Industrial Tribunals (England and Wales) Regulations 1965) states:The hearing of an appeal shall take place in private unless the court determines, at the request of the appellant, to hear the appeal in public. A member of the Council on Tribunals shall he entitled to attend the inquiry in any appeal in his capacity as such a member.229 There is, therefore, in the mind of the Ministry of Labour (because it was they who were responsible for that Order) a perfectly clear distinction between letting in the public and letting in the Council on Tribunals.
We have now only one case, the Betting Levy Appeal Tribunal, where, by law, the Council cannot send a member as of right. In the case of income tax tribunals it is not a matter of Statute Law but of convention. I hope that the discussions we have had on this particular matter will make it perfectly certain that we do not pass any more laws which prevent the Council on Tribunals from going, because it seems to me that they are put in a difficult position, if not sometimes an impossible one, if we prevent them from doing their duty in this way.
I was most interested to hear what my noble friend Lord Hamilton of Dalzell found when he went to this tribunal. I knew that he had gone; but the fact remains that he had to leave because two or three of the appellants had not given consent in writing. I am told that the same thing has happened in tax cases. A series was being heard in the morning and the written consent of two or three of them had been given. Perhaps the others did not come, so there was no written consent, and therefore the member of the Council on Tribunals had to go. If one believes in the importance of this Council, one realises that that is not the way in which they should be treated. I think we should bear that in mind, if ever the occasion of hearings of this sort comes up in legislation in future, as I am perfectly certain it will.
Nevertheless, I know that the noble and learned Lord has considered this matter carefully, and the House will have heard what he said. The facts of the accessibility of this particular tribunal are as he says, and they can get in if the appellant gives his consent. In those circumstances, and seeing that apparently this brings this matter of principle, if it is thought to be one, into conflict with my Amendment, I do not think that I can resist the Amendment moved by the noble and learned Lord.
§ THE LORD CHANCELLOR
My Lords, for the record, may I just say in reply that I am a strong supporter of the 230 admirable work done by the Council on Tribunals, but I have always thought that they make heavy weather of this point. Nobody has in fact stopped them from seeing how this tribunal works, but of course they cannot attend all the hearings of all the tribunals all the time. They can see a representative hearing. Wherever a bookmaker does not object they can go and see that. Whether they see three on one day and then retire and see three on another day, or attend all six on the one day, seems to me to make no difference. It is not preventing them from doing their work under the Act. That is why it has always seemed to me, with the grestest respect to the Council on Tribunals, that they have made rather heavy weather on this point. However, there it is.
§ On Question, Amendment agreed to.
§ In the Title:
In line 6, after ("Scotland") insert "to make provision with respect to the attendance of members of the Council on Tribunals at personal hearings under section 231 of the Local Government Act 1933; ")—(Viscount Colville of Culrass.)
§ On Question, Amendment agreed to.