HL Deb 24 May 1966 vol 274 cc1309-24

5.24 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AIREDALE in the Chair.]

Clauses 1 and 2 agreed to.

VISCOUNT COLVILLE OF CULROSS moved, after Clause 2, to insert the following new clause:

Betting Levy Appeal Tribunals

" . Notwithstanding anything in section 28(10) of the Betting, Gaming and Lotteries Act 1963, a member of the Council on Tribunals, in his capacity as such, may attend any hearing before a tribunal established by virtue of section 29 of that Act."

The noble Viscount said: I hope that those noble and learned Lords who are waiting for the Criminal Appeal Bill will forgive me if I detain your Lordships for only a short time, I hope, upon this particular matter, but I believe that it is one of importance and one which for some time we are unlikely to get another opportunity to deal with in any legislation. I have put down two Amendments and I think they would be better dis- cussed separately, if your Lordships would agree to that course.

The first of them deals with a matter which, as I said on Second Reading, the Council on Tribunals itself complained about in its 1964 Report. The difficulty is that, in connection with hearings of the betting levy appeal tribunals, which now function under the Betting, Gaming and Lotteries Act 1963 but which originated in the Betting Levy Act 1961, there is a provision—it is Section 28(10) of the 1963 Act—which has in fact proved to have the effect of preventing a member of the Council on Tribunals, in his capacity as such, from attending the hearings of those appeal tribunals in England and in Wales.

I should like to make perfectly clear a matter which I muddled, I am afraid, during the Second Reading debate, and that is that I am not concerned at all with the rights of members of the Council on Tribunals to retire when the members of the tribunal itself have heard the case and have gone away to decide what they are going to do about it. This is quite another matter, and one which I do not wish to raise at all this afternoon. But it does seem to me that since Parliament, or at any rate the Lord Chancellor of the time and the Secretary of State for Scotland, have entrusted the Council on Tribunals with a surveyance of these betting levy appeal tribunals, it is a very strange thing that members of the Council are not entitled as of right to go to these tribunals to hear their proceedings. I think this is not a situation which Parliament intended.

On the last measure that was before your Lordships' House the noble and learned Lord the Lord Chancellor showed himself very ready to correct what was quite clearly a drafting mistake in the 1925 Act, and I hope I may convince him that there has been another drafting mistake in what is now Section 28(10) of the 1963 Act; because at the time the 1961 legislation (which is where this originated) was going through Parliament, it was quite clear to Parliament and to the Government that the Council was complaining about various restrictions on its members attending the tribunals which it had to look after, and an announcement was made in both Houses when the Bill was being dealt with that it was proposed that these betting levy appeal tribunals should be looked after by the Council on Tribunals and that an order would be made accordingly.

There was very little discussion of the provisions in what was Clause 4(10) and in the Second Schedule to that Bill, and the only question which really touched upon whether the hearings of these tribunals should be in public or in private was, I think, an Amendment which was moved by the right honourable gentleman the present Member for Leyton during the Report stage in another place. My right honourable friend the Member for Huntingdonshire, who was then the Under-Secretary of State at the Home Office, said that, on the whole, he considered it would not be a good idea that these tribunals should sit in public unless the appellant chose to sanction this, and he drew a comparison with some of the income tax tribunals. I am not suggesting that these tribunals should sit in public, but I am suggesting that in the case of these tribunals (which are indeed, I think, very similar to the tax appeal tribunals) a member of the Council should be entitled to go and listen as of right. He can, so far as I know, in the case of tax tribunals, and to that extent, therefore, the parallel which was drawn in another place seems to me entirely apt.

But it was when my right honourable friend went on to deal with the question of providing, under the rule-making powers in the Bill, for the conduct of these tribunals that I think he went wrong, because he said this: I have no doubt that when…the Lord Chancellor and the Lord President of the Court of Session draft their rules of proceedings under the Second Schedule to the Bill they will bear in mind what has been said by the right honourable gentleman…and what is said by the Franks Committee."—[OFFICIAL REPORT, Commons, Vol. 632, col. 1220; 20/12/60.]

They did bear it in mind, and there is a provision in Rule 7(2) of the relevant rules which says that a member of the Council on Tribunals, in that capacity, shall be allowed to attend.

The difficulty is that the creation of the offence under what is now Section 28(10)—that is, if anybody discloses any information which has come before the tribunal—has been interpreted as pre- venting the chairman from allowing a member to attend and sit. I am sure that Parliament never intended this. It does not look as though the Government intended this. The action that the Lord Chancellor's office took at the time seems to me expressly to refute any intention that a member should not be entitled to sit; and I am entirely at a loss to see how the Council on Tribunals can properly carry out its job in regard to these particular levy appeal tribunals if they cannot send one of their members along as of right to listen to what goes on.

I would only say, further, that I think I ought to have provided in this Amendment that the penalty on disclosure which is expressly laid upon members of the tribunals and the officers of the board should be extended, if this Amendment is acceptable, to the members of the Council on Tribunals themselves. I also think that this would require perhaps an Amendment to the Long Title of the Bill. I believe there is nothing in the Rules of this House which would prevent at least that happening. Perhaps the noble Lord, Lord Arwyn, will take pleasure from that particular state of affairs if he should wish to tempt the noble and learned Lord further on minerals in another Bill. So far as this Bill is concerned, I beg to move.

Amendment moved—

After Clause 2, to insert the following new clause: (". Notwithstanding anything in section 28(10) of the Betting, Gaming and Lotteries Act 1963, a member of the Council on Tribunals, in his capacity as such, may attend any hearing before a tribunal established by virtue of section 29 of that Act.")—(Viscount Colville of Culross.)

5.31 p.m.


I am afraid that I cannot accept this Amendment, for the following reasons. Under the last Conservative Government we have become a country with betting shops and private casinos all over the place, so that men who could have been engaged in manufacturing something the people need are instead engaged in these services. It seems odd to think that it was only a few years ago that everybody was very doubtful whether we ought to allow a new form of horse-race betting called the Totalisator. Eventually we decided to take the risk and legalise the Totalisator; but only on terms that the bookmakers were properly treated. At Epsom, for example, where the bookmakers always had to pay stand fees, it was apprehended that the racecourse owners might, in favour of the Totalisator, increase the fees so much as to put the bookmakers out of business. So Parliament expressly provided that the stand fees of the bookmakers must not be increased above the amounts they were then paying.

In the same way, treating both alike, when it was felt that the Totalisator ought to produce some money for the improvement of bloodstock, and pay a levy accordingly, it was decided that the bookmakers must be treated in the same way and that they also must pay a levy. There was no mistake, so far as Parliament was concerned, in enacting, as it did in Section 28(10), that, except with his consent, the information disclosed by the bookmaker to the Betting Levy Appeal Board was not to be disclosed to anyone; and that if it was disclosed by anyone it was to be a serious criminal offence. The only two relevant Amendments with regard to that section which were at any stage moved were the one to which the noble Viscount has already referred—namely, the provision that hearings should be in public; and that was withdrawn—and, secondly, one relating to penalties. The original maximum fine was to have been £50, but Parliament felt so strongly about the need to protect the interests of the bookmaker that the sum was increased by an Amendment to £100.

It is quite wrong to suggest, merely because there is not a right in a member of the Council on Tribunals to attend a hearing before an appeal board against the bookmaker's will, that this in some way removes the appeal board altogether from the surveillance of the Council on Tribunals. It is still open to any bookmaker to go to the Council on Tribunals and say: "I have been badly treated by the appeal board: the chairman behaved very badly. I explained to them what my means were."—because means are very relevant. A bookmaker appeals on the ground that he has been put into the wrong category, or that his earnings have been exaggerated—and these are relevant to the levy that the bookmaker has to pay.

There is nothing to prevent the Tribunal from inquiring into any complaint. Any bookmaker may go along to them and tell them all about it; he can tell them what he told the board and he can tell them how badly the board behaved. It is not accurate to say they are prevented from attending the hearings. All the Act says is that it is an offence to disclose the information which the bookmaker puts before the appeal board without his consent in writing. He can consent at any time. Even the Franks Committee recognised (of course, the Franks Committee were the parents of the Council on Tribunals) that there are some hearings which should be strictly in private. They said in their Report (paragraph 77): We are in no doubt that if adjudicating bodies, whether courts or tribunals, are to inspire that confidence in the administration of justice which is a condition of civil liberty they should, in general, sit in public. But just as on occasion the courts are prepared to try certain types of cases wholly or partly in camera, so, in the wide field covered by tribunals, there are occasions on which we think that justice may be better done, and the interests of the citizens better served, by privacy. Then in paragraph 79 they said this: The more frequent type of case in which privacy is desirable is that in which intimate personal or financial circumstances have to be disclosed. Few people would doubt the wisdow of the practice whereby hearings before the General and Special Commissioners of Income Tax are held in private in order that the details of taxpayers' affairs shall not become public knowledge. … I agree with the noble Viscount that this is rather like tax tribunals where the members of the Tribunal are not admitted except with the taxpayers' consent. For over 100 years Parliament has said—with, I should have thought, the general consent of people as a whole—that it is all right for the State to force the taxpayer to tell it exactly what his income is, but that this information will not be disclosed to other people.

One can always make a good case for exceptions. One can say that it would be nice for the representative of the Council on Tribunals to force his way in, whether the bookmaker wanted him or not. There are, however, a great many special cases. If my noble friend Lady Summersk ill were here—which she is not—I am sure she would say that, where a wife has been deserted by her husband and he, having been ordered to pay maintenance, has disappeared, if he is anywhere in work at all, there is one person in the country who knows both where he is and what his earnings are—the Inland Revenue. And she would say that they certainly ought in some circumstances to give the information to wives.

There are a great many perfectly good arguments that can be advanced for breaching this general rule where someone has disclosed his income to the Revenue and other people have a legitimate interest in knowing what it is. But for over 100 years successive Governments have always fought any inroad into the general principle that in such cases the information is not to be disclosed without the consent of the taxpayer. The position in the sort of case we are discussing is very similar; because here one of the frequent grounds of appeal in many cases—there are not a great many appeals—as I understand it, is that the original Levy Board overrated the bookmakers' earnings. But bookmakers, just like the taxpayers, may not want their rivals to know what their turnover is—sometimes they may not even want their wives to know what their earnings are.

As your Lordships know, I am a great supporter of the Council on Tribunals, who do the most admirable work; but I think, if I may say so, that they are making rather heavy weather of this one exceptional case in which they are not allowed in without the bookmaker's consent. All they have to do on any case in which a bookmaker gives his consent is to send somebody along to see that the board's inquiry is being properly conducted. If they say to the bookmaker: "It is in your interests that we should be here, because we exist to protect you", it may be that the bookmaker will take the view that he is really the person to decide where his interests lie. I have no reason to suppose that in many cases the bookmaker will not very well say, "Yes, of course; if the Council on Tribunals are coming along to help me, that is splendid ". But I cannot, I think, advise your Lordships to break the very long tradition we have to recognise that where people's earnings are concerned, they are sensitive.

I know that the noble Viscount has been in close touch with the Council on Tribunals, but I am not sure whether he has been in close touch with the bookmakers. The noble Viscount indicates that he has not been. I should not have thought that this afternoon your Lordships ought to remove a protection which Parliament gave to the bookmakers under the Act and which is a reasonable one on the face of it, when they have been given no notice of this. I could hardly give them notice myself, because the Amendment was not put down until Friday, when I was in America. I should not have thought that, in those circumstances, it was right, and it is for these reasons that I am unable to accept this Amendment.

5.42 p.m.


With great respect to the noble and learned Lord, the Lord Chancellor, I am not quite sure what the reasons are. I appreciate that there may not have been a very great deal of time to look at this question and also that I may not have talked to the bookmakers. But, I suggest to your Lordships, there must be a distinction in this case between accessibility of this sort of tribunal to the public, which means the public, and letting in a member of this special Council. I cannot believe that anything that the noble and learned Lord has said was intended to suggest that a member of the Council on Tribunals would in any circumstances diclose in any way improperly the information which he got at one of these hearings. Indeed he is totally different from a member of the public in this respect because he is given a special charge by the order made by the Lord Chancellor's Department to look after the affairs of these tribunals.

I do not think it is a matter of making a fuss about one small instance where the thing has gone a little wrong. This case seems to me to involve a matter of principle. If the Council is to look after any tribunal, it seems to me that it should have access, as a right, to the hearing. I do not know whether I am right about this, but the information I have is that there is nothing to stop a member of the Council on Tribunals from attending Inland Revenue tribunals, a point which was set up as an example against my Amendment. If that is right, this argument must fall. With great respect to the noble and learned Lord, the Lord Chancellor, I suggest that it is a very strange thing, as this matter was never discussed in Parliament when the Bill was originally before either another place or here, and, so far as I know, the matter was never discussed with the Council on Tribunals itself (and therefore the question of accessibility never entered the minds of Parliament), that, when we have an opportunity to do something about it in a way which I do not think is any wide breach or any precedent, we do not take it.

Finally, may I say this to the Lord Chancellor? It seems very strange, when the 1961 Act applied equally in Scotland as it does in England and Wales, that there should never have been any difficulty in Scotland, as I am informed, about members of the Scottish Committee of the Council going to these particular

Resolved in the affirmative, and Amendment agreed to accordingly.

5.51 p.m.

VISCOUNT COLVILLE OF CULROSS moved, after Clause 2, to insert the following new clause:

Hearings under Part X of Local Government Act1933. 1933 c. 51

". It is hereby declared that a member of the Council on Tribunals, in his capacity as such, may attend any hearing held by the Minister of Housing and Local Government under Part X of the Local Government Act 1933."

The noble Viscount said: I hope that the noble and learned Lord the Lord Chancellor will not have considered that I pressed my first Amendment to a Division as a personal affront, or any-

appeal tribunals. If that is right, it can be only because prosecutions are not being brought by the procurator fiscal because he considers it is entirely proper that they should go, and he does not consider it is a case where he would like to prosecute. Again perhaps I am wrong, but this is my information. Therefore I think that this question requires a certain amount of consideration and I should not lightly wish to withdraw this Amendment, because, as I say, I believe it raises a matter of principle.

5.48 p.m.

On Question, Whether the said new clause shall be agreed to?

Their Lordships divided: Contents, 35; Not-Contents, 18.

Ampthill, L. Elliot, of Harwood, B. McCorquodale of Newton, L.
Baden-Powell, L. Emmet of Amberley, B. Massereene and Ferrard, V.
Burton, L. Ferrers, E. [Teller.] Milverton, L.
Carrington, L. Forster of Harraby, L. Newall, L.
Colville of Culross, V. [Teller.] Gridley, L. Parker of Waddington, L.
Conesford, L. Grimston of Westbury, L. St. Aldwyn, E.
Cottesloe, L. Hawke, L. St. Just, L.
Daventry, V. Ilford, L. St. Oswald, L.
Denham, L. Ironside, L. Strange, L.
Denning, L. Killearn, L. Swansea, L.
Dilhorne, V. Limerick, E. Thurlow, L.
Effingham, E. Long, V.
Arwyn, L. Hilton of Upton, L. [Teller.] Phillips, B. [Teller.]
Burden, L. Latham, L. Plummer, B.
Champion, L. Lilford, L. Segal, L.
Gardiner, L. (L. Chancellor.) Lindgren, L. Sinha, L.
Granville-West, L. Longford, E. Wade, L.
Haire of Whiteabbey, L. Peddie, L. Wells-Pestell, L.

thing of the kind. I am sorry that there had to be a disagreement on what I believe to be a matter of principle, and I am glad that your Lordships have seen fit to reinforce that.

My second Amendment deals with a somewhat parallel situation, and again it is referred to, this time in Section 22, in the 1964 Report of the Council on Tribunals. Under Part X of the Local Government Act 1933 there is a general procedure for district audit and for surcharge. There are two sections, Sections 229 and 230, which provide alternative procedures for people to follow, in the first case against a surcharge, and in the second case, whether they appeal or not (and the matters can be joined), to ask either the High Court or the Minister of Housing and Local Government (as he now is) to make a declaration that what they did they did in the belief that it was reasonable or believed it to be authorised by law.

In Section 231 of the Act there is a provision which says that if anyone appeals or applies to the Minister there shall be provided to him a personal hearing by a person appointed by the Minister for that purpose. I believe I am right in saying that the Ministry have interpreted the word "personal" in this respect as meaning that the hearing has to be in private and that in the past there has been difficulty, not, I think, so much about a member of the Council on Tribunals attending the hearing, but about his having access to the inspector's report afterwards. I do not know whether, had the Ministry taken the other view, that the hearing was in public, they would also have continued to say that the inspector's report was something that they could not disclose. However, I do not seek to deal with inspectors' reports, but merely to make clear that in the word "personal" there is nothing in any way magic. It means, as I believe, that a person who in fact wishes to have his application or appeal dealt with by the Minister can go there himself; or, I have no doubt, if he so wishes, be represented; but there is nothing to denote secrecy.

I cannot believe that there can be any doubt about this, because when one looks at the comparable procedure laid down in the Rules of the Supreme Court for what happens if the matter goes, on the other method, to the High Court (it appears in Order 118), it is clear that there is nothing private about the hearing. Indeed, then it comes to the question of a declaration, under Section 230 of the 1933 Act, that a person who has been surcharged believed what he did to be reasonable or authorised by law. There is a provision in Rule 64(c) which says that Upon the hearing of the application any local government elector for the area may appear and be heard in opposition thereto "— that is, in opposition to the declaration. So it is quite clear that the public are entitled to come, and the particular members of the public from that local authority area, to make representations.

It may be that I am making a mountain out of a molehill, but if there is any doubt about the meaning of this word "personal" in Section 231(2), then I think it should be made clear that it does not prevent members of the Council on Tribunals from going to these hearings. I beg to move.

Amendment moved— After Clause 2, insert the said new clause.—(Viscount Colville of Culross.)


I agree with the noble Viscount that this is really a parallel case, and I am afraid that I must oppose it on the same grounds. I am sorry that I was in ignorance about what happened in Scotland; but, as I understand it, the Council have been allowed into the previous kind of tribunal, the Betting Levy Appeal Board in Scotland, only where the bookmaker agrees, and they are certainly not allowed to attend Inland Revenue tribunals without the consent of the taxpayer. All we are arguing about is not whether they can attend any of these tribunals—because, of course, they can, with the consent of the bookmaker, or with the consent of the appellant, where there is a surcharge. The sole question is whether the statutory protection which Parliament has so far thought right to give, in the one case, to bookmakers, and in another case to a different class, is to be taken away without their consent or their having any opportunity of putting their arguments before Parliament.

In this case the relevant section says: Where under this Part of this Act an appeal or application is made to the Minister, the appellant or applicant shall be entitled, if he so desires, to a personal hearing by a person appointed for the purpose by the Minister. Successive Governments of different complexion have been advised by their Law Officers that this means a hearing in private, and the same sort of consideration arises for these reasons. The surcharge appealed against may be in regard to a sum which the district auditors regard as an excessive claim, for example, for personal allowances, under Section 112 of the Local Government Act 1948, which gives members of local authorities the right to financial loss allowance. In deciding on the amount of the financial loss allowance, the appellant's financial circumstances will plainly be relevant. Furthermore, of course, so also is the ability of the appellant to meet the surcharge. He may contend that he ought to be relieved from personal liability for all or part, on the ground that insufficient regard was had to his means or to his ability to pay.

It is on these grounds that I feel unable to accept the Amendment. I quite agree that, in a sense, it is the same point again. The question is whether, Parliament having considered the matter, having given a particular class of person a right not to have their private affairs, in particular their incomes, disclosed without their consent, it would be proper to remove this in favour of a very worthy body who exist, after all, to protect these particular people. Of course, if a man says, "I do not mind a member of the Council on Tribunals attending—indeed, I should welcome it ", that is fine. As I pointed out before, and again in this case, if such an appellant thinks he has been wrongly treated by the Minister, or by whoever heard the inquiry on behalf of the Minister, he can complain to the Council on Tribunals and tell them all the facts, and they go into it.

The whole question is whether his private affairs are to be discussed in front of somebody else without his will. I, AB, do solemnly declare that I will impartially, to the best of my ability, execute my duties under the Income Tax Acts and the enactment relating to the profits tax; that I will not disclose any information received by me in the execution of my duties except for the purposes of my duties or for the purposes of any prosecution or defence relating to income tax or profits tax or in such other cases as may be required by law. That is the oath the General and Special Commissioners take. On the whole, the principle is the same, though I should tell the noble Viscount that his Amendment is in some way defective, because under Article 2 of the Secretary of State for Wales and Minister of Land and Natural Resources Order, 1965, the functions of the Minister in relation to Wales has been transferred to the Secretary of State for Wales, so that on the face of it the Amendment is in any case defective, and would have to be resisted for that reason.


I am glad the noble and learned Lord agrees that this is at any rate the same principle. While I accept on my part that my Amendment is defective, I wonder whether he would refer to the Act again, and also to Order 118 of the Rules of the Supreme Court? The position is this. Under Section 229, any person who is aggrieved by the decision of a district auditor may, where the allowance or surcharge or other decision relates to an amount exceeding £500, appeal to the High Court and may, in any other case, appeal to either the High Court or the Minister. In big cases, where the matter will be more explosive than in the small ones—in many instances, at any rate—and where much more money is at stake, as I read this Act the person who wishes to bring this appeal can only go to the High Court. If he goes to the High Court, under the Rules the matter is dealt with in public. If the case concerns something less than £500, he has an option: he can either go to the High Court or to the Minister. If he goes to the High Court, he is still bound by Order 118, and the hearing is still in public. If he goes to the Minister, for some reason which I fail totally to understand, he apparently acquires unto himself a cloak of secrecy. This makes no sense to me, although I may have it wrong.

I will certainly look at it again and check on the accuracy of my Amendment, and put down anything else that flows from this as, for example, an Amendment in the Long Title. I entirely appreciate the point the noble and learned Lord made about the oath taken by a Special Commissioner. I said in my speech on a previous Amendment that I thought it was entirely right that the provisions in Section 28(10) of the other Act, which made it an offence for certain specified people to disclose information, should be amended so that it brings in the member of the Council on Tribunals as well. He will then be in the same position as the person who takes the oath when he is a Special or a General Commissioner. I am sure this is right, and I would not suppose that there would be any who would object to it. If the noble and learned Lord would be kind enough to see whether I have this point right under the Orders of the Supreme Court, and satisfy himself that there is no curious anomaly here, as I truly believe there to be, then, of course, for the moment I would be glad to withdraw this Amendment.


Certainly I will look at that. It may be that the big cases introduce some question of public importance. But in the others there is a choice, as the noble Viscount has said. You can go to the High Court or to the Minister. It may be that the very reason why you decide to go to the Minister is that there it is a private hearing, and you know you will not have to discuss your means, or lack of means, in public. I appreciate that it is of course impossible to bind the tribunal to secrecy, because the man will not know what member of the tribunal is coming up. He may be his brother-in-law; it may be anybody. The question is why he should be forced to have a representative of the body which is supposed to be the body protecting him. He is quite able to say for himself whether he prefers to keep his private means to himself, or whether he would like a member of the tribunal there.


May I add a few words on this point, if only as a member of the original Franks Committee? I confess that, being a member of that Committee, I never intended that the Council on Tribunals, which is charged by Parliament to be a watchdog of all these Tribunals, should be excluded, certainly in a case such as this. I have sat many times in the Divisional Court on appeals on questions of surcharge, and I have always envisaged that the alternative right to go to the Minister had nothing whatever to do with secrecy, but was merely a saving in expense. With a small amount involved, to save expense you go for a hearing to the Minister. You have a right to go to the High Court if you like, and in an important case, where a lot of money is at stake, you must. But in the High Court you get the full glare of publicity reported in the Press, and I see no reason why, not a member of the public, but a member of this particular body should not be allowed to go to the hearing.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

On Question, Whether the Long Title shall stand part of the Bill?


It may well be that, as a result of the Amendment to which this House in Committee has agreed, there may have to be an Amendment to the Long Title. If that is the case, perhaps it would be suitable if I put it down at the next stage.

On Question, Long Title agreed to.

House resumed.

Bill reported, with an Amendment.