I beg to move Amendment No. 349, in page 8, line 36, to leave out from "section" to "registration" in line 37 and to insert:
for any contribution week falling wholly or partly before the date of".
This and Amendment No. 350, in line 38, leave out from beginning to "as" and insert:
for any contribution week",
are drafting Amendments. As the Clause stands, an employer who otherwise would be disentitled to a premium or tax refund by virtue of Clause 7(1,a and b) might be able to frustrate the intention of the provisions by delaying payment of contributions and, therefore, of tax. Thus, if tax due before the registration of the establishment were not paid until afterwards, paragraph (a) would be ineffective.
The Amendments would prevent the situation from arising. They would also avoid the necessity to consider the sometimes difficult question of fact of when the tax was paid, and would remove difficulties that might arise in cases where the Minister of Pensions and National Insurance had given permission to pay contributions after the date when they were legally due.
We have, for example, the stamping in arrears. This could cover a number of weeks that had been authorised by the appropriate Minister. These Amendments indicate that the tax, along with the National Insurance contributions, will be payable not in respect of a particular day or days, but in respect of a contribution week.
Amendment No. 349 is drafted to take account of this. By including the words "wholly or partly" it will make clear what the law is where the disputed period covers part of a contribution week. These two Amendments will have the same general effect as the Opposition Amendments Nos. 144 and 145, but will be more precise in their application. My hon. and learned Friend the Financial Secretary to the Treasury will be dealing with the other matters.
I am sure that the Committee would like to welcome the Minister back again. We are delighted to see him. We are also delighted that he should be taking part for the first time during the proceedings on the Bill when the Guillotine has allowed the Government to explain any of their Amendments to the Committee.
We have so far had 24 Amendments from the Government, and these are the 25th and 26th. Throughout the whole course of the proceedings not one single word of explanation has been given to the Committee as to why the Government were amending the Bill or what these Amendments were intended to achieve, because of the severity of the Guillotine which the Government have imposed. We are very glad that the Minister should be the first to have the opportunity to exercise the privilege of explaining such Amendments to the Committee.
No doubt, it is very convenient for the Government not to have explained their legislation or their Amendments. We have already seen this this afternoon. They like to brush these things under the carpet. It is, however, an advantage to Parliament to have an explanation from the Government when Amendments, substantial or small, are introduced to legislation which has had a Second Reading and is then being altered.
In relation to Amendments 349 and 350, with which the Minister has dealt, we are grateful to him for adopting the points that we took in the Amendments which we tabled many months ago, and we are also grateful to the Government for putting them into a more convenient and more accurate form. To this extent, we welcome them. But I shall have to advise my right hon. and hon. Friends to divide against Amendment No. 350, not because we object to it, but because if it is passed, Amendment 90, which we regard as important, will fall, and, therefore, to vote on Amendment No. 90 we shall have to vote against No. 350.
I should like, therefore, to deal with the other Amendments which relate to a separate point from those with which the Minister has dealt. They are Amendments Nos. 90, 95, 142, 143 and 172. I think that I can put the point quite shortly. All these Amendments which we are discussing together deal with the exercise of the power of the Minister to give a direction to a citizen to keep records and the consequences for that citizen if he does not comply with that direction. Clause 7(1,b), which we desire to leave out, seems to us to introduce a monstrous and a wholly new principle, because when the Government have taken an enforced loan from the citizen and Parliament has said that he is entitled to have it back again if he fulfils certain conditions, this paragraph proposes that he should be deprived of that right and of the right to have the whole of the repayment refunded if he does not obey an order of the Minister to keep certain records.
The power of the Minister to order anyone to keep records is absolutely without limit. It is a Ministerial power to give any direction the Minister likes about the keeping of records. It is a power wholly outside the control of Parliament and wholly outside the control of the courts. If one does not do what the Minister says, one forfeits the tax refund or premium to which one would otherwise have been entitled, despite the fact that Parliament has said that one ought to have that money and is qualified for it.
This seems to me to be typical of the Bill. It provides that the taxation and the enforcement and the repayment provided for should be solely in the discretion of Ministers. Ministers are given an absolute discretion to give or withhold benefits under subsection (5). They are given strong administrative powers to order whether particular circumstances create a tax advantage or disadvantage. In Clause 1(2) they are given power to deal with research establishments and say who shall or shall not have a refund or a premium.
Under Clause 7(5) Ministers are given discretion as to how and when they make repayments, and under Clause 10 they are given complete control to marry or divorce establishments, to put them together and call them an establishment or to divide them and call them two establishments, as they please. All these powers are no doubt very convenient administratively. No doubt the Minister of Labour will find it convenient to operate the Bill in this way. But all these powers are given without Parliamentary control, without principles laid down in the Bill to guide their exercise, without publicity for their exercise if they are exercised, and without the citizen being able to know how they were exercised in other cases and whether justice is being done between him and his neighbour. This is another example typical of the Bill, which has been devised as to most of its enforcement and administrative provisions for the convenience of the Executive and without consideration of the convenience of the citizens affected.
Clause 7(1,b) is not only objectionable in form, but wholly unnecessary. I will deal with those two points separately. First, it is wholly objectionable because there is no procedure whatever for con-rolling what records the Minister may require. He can give any order he likes, as extensive, as unreasonable and as impossible of performance as he likes, to any citizen to keep any records that he may think the citizen ought to keep.
Within the framework of the Bill, of course, but they could be requirements to keep all sorts of records that the Minister thought he would like to see and they may be totally unnecessary to assessing the right to refund of the particular establishment.
We see in Clause 8 that the power to inspect is what is reasonably necessary for the Bill, but there is no limitation of that sort in these powers. It is not a provision to keep actual records as may reasonably be required. It is an absolute discretion for the Minister to give an order to any citizen to keep any records in relation to Selective Employment Tax and persons employed that the Minister decides, without the citizen having the right to say, "It is unnecessary. I keep my records in a different form. You can get what you want in some other way", or "I will keep these records, but I think it is wholly objectionable." While Ministers may sometimes be reasonable, it is not a general principle of legislation that one does not need to say that Ministers must be reasonable. Frequently, Parliament suggests that Ministers ought to exercise their powers within circumscribed limits.
If there is a dispute between the citizen and the Minister as to whether the direction of the Minister is sensible and proper or grossly onerous upon an individual, there is no procedure for resolving whether or not the direction was proper. Nor is any procedure laid down as to whether the direction has been complied with. It is easy to see that a Minister might give a direction and say to the citizen "You have not complied with my direction by not keeping the records that I told you to keep, and so you will not get your money back." The citizen may say that he has complied with the direction and that his records are adequate having regard to the direction that the Minister gave, and he might claim that they were a fulfilment of the direction. He may say that the direction was vague and ambiguous but he has complied with it.
There is no way in which that dispute can be resolved except at the absolute discretion of the Minister, who may say, "I do not agree, and I shall keep your money." The citizen may say that he never got the direction and that it was probably lost in the post by the Postmaster-General, but there is no means by which that dispute can be resolved. Therefore, all these questions, which may on occasion be of considerable importance to an individual, remain in the sole and absolute discretion of the Minister, whose remedy is to keep the citizen's money.
My second point is that not only is the form of this Bill in this respect objectionable, but the provision that the Minister shall keep the citizen's money if he does not think sufficent records are being kept is wholly unnecessary. If the citizen has proper recourse to the courts or a tribunal—no doubt the Government will say that the citizen can always get his rights before a court or a tribunal; they will settle all disputed claims—then the citizen has to go off to the courts or a tribunal to settle the claim and will have to produce records and documents to show that he is entitled to the refund or the premium. The Minister does not need this additional power. He is still in a position in which he is entitled to say to the citizen, "I do not think that you have proved your case for a refund. Go to the tribunal or the county court and prove it." The citizen will then have to produce such records as he has, and if he has kept bad records he will not be able to prove his case.
On top of that, the tribunal that it is proposed to use, or the county court, if that proposal is adopted, has powers of discovery, or can be given powers of discovery by regulation. In this circumstance, it is possible as a preliminary to a claim for a citizen to be required on discovery to give advance information as to his records, and there the case can be decided on the claim that the money is due.
Thirdly, it is wholly unnecessary because the Bill already provides that the citizen can already be prosecuted under Clause 8(2,d) if he withholds any material information. The citizen is liable on prosecution on indictment to a limitless fine or two years' imprisonment if he withholds any material information. On top of these three remedies, which would force the citizen to produce his records or make him liable to prosecution, why withhold his money?
We suggest that it might be enough to add, as we suggest in Amendment No. 172, that if the citizen refuses or neglects to produce or allow inspection of any records when he has been told to produce them by the Minister on proper notice, he should be guilty of a separate criminal offence. Therefore, if the Government want to force a citizen, they can prosecute him for refusing to produce the records on due and proper notice from the Ministry.
For all these reasons, I suggest that the power is unnecessary and that paragraph (b) introduces a wholly objectionable principle which has never previously appeared in tax legislation and certainly ought not to appear in a Bill of this sort, which affects not tax but the return of the citizen's own money which has been taken off him by means of a forced loan. In these circumstances, to give the Minister the power of the ultimate decision as to whether the citizen has observed a direction that the Minister has given and a power to enforce that by withholding the whole of the cash that the citizen would otherwise be entitled to is wholly objectionable.
For this reason, we want to vote against Amendment No. 90, and to do that we shall have to vote against Amendment No. 350.
I should like to ask one question and, before doing so, to say what great pleasure it gives myself and my hon. Friends to see the Minister of Labour back in his place. We hope that he is now fully recovered.
I should like to ask the Minister, or his hon. and learned Friend the Financial Secretary if he is to reply, about the records which it is intended should be kept in respect of the payment of the Selective Employment Tax. I recognise that the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) is worried that the records will be more extensive than is necessary. Nobody wishes to create needless bureaucracy and difficulties for employers in obtaining the refunds or the premiums, as the case may be, to which they are entitled. I think that the right hon. and learned Gentleman has rather exaggerated the possible use of the Clause by the Minister.
Subsection (4) would go a long way to reassure the right hon. and learned Gentleman if, after "such records", the Minister would agree to insert "as may be reasonably required". There is no limitation on the powers of the Minister to require employers to keep any records which he sees fit of the payment of the Selective Employment Tax. As it stands, the phraseology might be thought to go rather too wide.
I said that I had only one question to ask but there is, perhaps, another which the Minister might like to deal with at the same time. If he wants to satisfy hon. Members on this side that he will not ask for information unreasonably, instead of the word "direct" at the end of the subsection he might put in "by order determine", so that any information which he required employers to produce would be subject to debate by the House before employers were faced with that duty. I shall be grateful if the Minister will deal with these two points when he replies.
I wonder whether the Minister will tell us why, as it appears, he has loaded the Clause so heavily against the taxpayer. Was that his intention in the first place, or was it merely that he desired a certain Clause to be drawn up in such a way as would give him reasonable powers of satisfying his Department that these sums were due to a particular taxpayer? The Minister will recognise that on the face of it, it appears that he is taking a gigantic sledgehammer to crack a fairly small nut.
In this matter the Government, the Minister's Department and the Treasury are having the best of all possible worlds. They are collecting money from trading organisations and, as my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) has pointed out, they will enjoy this money interest-free for quite a time. In due course, they will merely refund some of it to specified people.
It seems, on the face of it, that the Minister is taking very extensive powers, and, what is perhaps a little more objectionable to some of us, powers which are not accurately specified. That leads to uneasiness not only on this side of the Committee, but, I am sure, in the mind of anyone who studies the Clause.
Words of limitation such as those postulated by the hon. Member for Orpington (Mr. Lubbock) would go some way to ease the position. At present, however, the Minister has these additional powers. Besides the power contained later in the Clause and the penalties for withholding material information, he has also put in this exceptionally vague but powerful sanction. I hope that even at this stage he will reassure the Committee that he will look at the matter again. As the position stands, it could lead to great anxiety.
I should like to follow up what has been said from this side of the Committee. There is genuine concern at the very wide terms of subsection (4). Although Amendment No. 90 relates specifically to subsection (1,b), the objection to that subsection arises largely from the exceptionally wide terms of subsection (4). For my part, I cannot see the need, any more than can my hon. Friends, for giving the Minister such wide powers in a matter of this nature.
The whole object of the scheme is, in certain circumstances, to refund to the taxpayer the tax which he has paid and, in certain other circumstances, to add a premium also. If the Minister is given such wide discretionary powers under subsection (4), it could have the effect in certain cases of defeating the whole purpose of the scheme.
If the Minister makes totally unreasonable demands—there is no legislative restriction upon him against doing so—he could, in effect, exercise his further discretion under subsection (1) and say "I shall not give you anything back." I do not wish to appear naïve, but when the taxpayer has already parted with money the onus should be upon the Minister to justify refusing to pay it back.
It could, I suppose, be said that the Minister of Labour will not be in receipt of the tax which was initially paid, but this is a case where money will have been paid by the citizen, who under the legislation is entitled to recovery of it. Subsection (4) could deprive him of that right for technical reasons, the technical reasons being that the taxpayer had not complied with the specific directions given by the Minister under subsection (4).
Although one cannot draw too close an analogy between one piece of legislation and another, I recall that last year the House was considering the Highlands and Islands Development Bill, Clause 11 of which gave the Minister wide power to inquire of an individual a great deal of information about his business affairs, and so on. I agree that it was directed for an entirely different purpose, but in that case there was the qualification that the information and the records which the Minister could call upon a citizen to produce were what was reasonably necessary for the fulfilment of the Board's functions under the Act. An Amendment from the Liberal benches was accepted—an Amendment along similar lines from myself was not accepted—which gave right of appeal to the sheriff-substitute, the Act applying only to Scotland, to test the reasonableness of the demand which was made.
It would satisfy the concern of my right hon. and hon. Friends on this side if subsection (4) were to be qualified by introducing the criterion of reasonableness, together with the incorporation of our proposal in Amendment No. 143 giving a right of appeal to a court of law to decide whether the call which has been made on the taxpayer by the Minister is a proper one to make. I hope that right hon. and hon. Members opposite will consider these suggestions seriously, because they are seriously intended.
First, I thank the right hon. and learned Gentleman the Member for Warwick and Leamington (Sir J. Hobson) and the hon. Member for Orpington (Mr. Lubbock) for their kind words.
I shall deal only with the simple issue of the deletion of paragraph (b) of subsection (1). My hon. and learned Friend the Financial Secretary will be having something more to say upon the rather technical legal arguments arising from what was said by the right hon. and learned Gentleman the Member for Warwick and Leamington.
I think that this has been an exercise in exaggeration. I had not thought that all these dreadful fears were in the minds of right hon. and hon. Gentlemen opposite. The Amendment would make it almost impossible to administer the Fund. The records that all employers registered for premium or refund are required to maintain, under Clause 7(4), provide the only convenient and readily accessible proof that an employer has paid the Selective Employment Tax for his employees.
The Amendment would deprive the Ministers of the sanction of withholding payment to an employer in respect of a period for which he failed to produce these records. We are bound to have records of some sort, and I should have thought that it would be obvious that by denying Ministers this convenient check on an employer's basic entitlement to receive payment one was opening the door to evasion, and that fraud would be facilitated.
Much play has been made about what would happen if an unreasonable Minister asked for all manner of information. Clause 7(4) lays down, as the hon. Member for Orpington mentioned, that the information relates to the payment of the Selective Employment Tax, and, therefore, the records that would be required would be bound to be comparatively simple. One could not go beyond the numbers that the employer had paid for, or their grades or status, or whatever it was. I cannot imagine any Minister going beyond the necessary information that he wanted for the compilation of the records upon which his action must then be based.
If we cannot require the employer to keep these records, and cannot have a sanction against failure to do so, we are in trouble and, therefore, the fears of right hon. and hon. Members opposite are unjustified. This is the reasonable course for us to take.
I should like to answer briefly the points raised on Amendments Nos. 142, 143, 95 and 172, which, following your Ruling, Sir Eric, have been grouped with the other Amendments at the last moment. These are the Amendments which raise the suggestion that the power given to the officials of my right hon. Friend's Department to inspect and copy records should be exercisable only on giving 14 days notice.
I am sure that the Amendments are put forward with the best of intentions, but in our view, if they were accepted, they would become powerful instruments of fraud and evasion. I am sure that no hon. Member wishes to achieve that.
In the ordinary way, one would not expect to have to use these powers dealing with the ordinary law-abiding firm. But the powers of this nature are given in order to arm the authorities in dealing with that very small minority who deliberately try to make use of provisions of this kind to defraud and to practise a fraud upon public funds.
In these cases, it is essential that the officials should have the power to come and demand confirmation of the claims by inspecting records without notice. In the normal course, it would only be where they suspected fraud that they would call without giving prior notification. There are plenty of precedents for this approach in other fields.
Under the Income Tax Acts, for example, the Revenue has power to require a person who has made a return to deliver copies of accounts and make his books available for inspection, and officials can inspect and take copies of extracts from rate books. It has additional powers to view and examine, with skilled assistance, land or property chargeable to tax.
These are the sort of powers normally only exercised on notice, but there is the power which is used occasionally to use them without notice. Under the National Insurance Acts, there is power to make examination and inquiry of persons and require them to furnish information and produce the records. Again, there is no requirement for a 14 days' notice. Under the Wages Councils Act there is power to enter premises of an employer to whom a Wages Council Order applies to require him to produce the wage sheets and other records, very similar to the kind of information which would be required here, and inspect material parts of records, again without a requirement for prior notification.
Under the Factories Act, 1961, factory inspectors have power to enter and examine premises and require the production of documents, again without notice, and there are similar powers under the Offices, Shops and Railway Premises Act, 1963. I hope that with these explanations the Committee will be satisfied that it is perfectly proper to include in the Bill provisions for these powers to be exercised without notice.
The right hon. and learned Gentleman the Member for Warwick and Leamington opened by saying that this was the first occasion upon which the Guillotine had allowed the Government to explain their Amendments. I would only remind the Committee that it is because of the way in which the Opposition have chosen—it is entirely a matter of choice for them—to exercise the very adequate amount of time given to them that we have discussed so few of these Amendments. If they choose to have long and, for some of us, wearisome and repetitious debates, it is entirely a matter for them.
We have had adequate time to give them explanations. No doubt the real reason is that the Government's Amendments have been so obviously satisfactory that they have not wished to discuss them, or they would have arranged their timetable to be able to do so.
Whatever other precedents there are, this is the first occasion when I have know a Front Bench speaker on the other side to participate in a debate and then to walk out without explanation immediately afterwards. Knowing the right hon. and learned Gentleman as I do, I am sure that there is good reason for his leaving, but it is not usual without explanation.
Another precedent to which one can refer is the fact that there is not a single back bencher present on the opposite side of the Chamber. In view of the importance of what we are discussing, that strikes me as a very bad precedent.
I do not wish to take up the point about the swoop on the documents, because, as the hon. and learned Gentleman has said, disagreeable and distasteful as this practice is, there are precedents for it, and it may be necessary. I want to revert to what the Minister said about the reasonableness of the form in which the records may be required. It must be borne in mind that a great number of quite small and fairly illiterate employers, some farmers, perhaps, and people who have not had the benefit of very great education, will be entitled to a refund.
It is not just a question of the firms. It is a question of a very large number of people who, perhaps, employ one or two workers, and, therefore, it is a matter of great concern to see that the records are in a form that is the simplest consistent with the administration of the Act.
That being so, although I should certainly not accuse this Minister, and I think no future Minister, of deliberately complicating the requirements in order to keep the cash, there is always a danger in the bureaucracy that there are a lot of well-intentioned economists who find that these records will be useful for statistical and research purposes in subsequent years, not merely for the purpose of seeing whether someone is entitled either to refund or premium, but because they think that it would be a useful moment to increase the store of knowledge of the statistics of our economic life by requiring people to keep rather more complicated records than are necessary for the prime purpose of the Clause.
We have had this before, in other sections of Government administration. It is a very natural and reasonable desire. I do not say that it is wrong. In many respects, our statistics are woefully inadequate. But it is not right when one is using such an enormous sanction as this, the sledge-hammer of the withholding of money due to the taxpayer, to complicate the necessary return by consideration of the need to complete national statistics or other worthy research purposes.
There should, therefore, be inserted in subsection (4) the provision suggested by the hon. Member for Orpington (Mr. Lubbock) and others that only such records are required as are reasonably necessary for the prime purpose. This is not a large demand to make. If words such as those, inevitably conveying an objective rather than a subjective test, were included, it would follow that the test of reasonableness would be one open to the courts and not one following merely the Minister's ipse dixit. It would follow the normal principles of construction.
The Amendment would be quite small and it would be so eminently reasonable that I cannot understand why the Government resist it, unless they feel that they have not the time to put it in owing to the muddle into which their timetable has got. That can be the only motive. What can the objection be otherwise? If the Minister were to say that he would, on Report, move such a small Amendment, we could get on to discuss something else, and the Financial Secretary's gibes about our mismanagement of the time at our disposal would fall to the ground.
I find the replies of the two Ministers quite unsatisfactory for certain simple and non-technical reasons. If those replies show anything, they show what a morass one falls into the moment one embarks upon an exercise of this kind, a morass of impositions placed one after another upon the subject.
First, it is said what the subject must and must not do. Then, people have to be given power to see whether he does or does not do it, and for that purpose they must have power to enter and inspect and the like, and, as the Financial Secretary said, if they suspect fraud, to go along without any kind of notice and pry into the subject's affairs.
Against this background, it is not the right approach for the Minister to suggest that our worries are exaggerated. When an exercise of this kind involving such impositions upon the subject is embarked upon, it is a matter for fear and for watchfulness to see that no impositions are put upon the subject save those that are absolutely necessary. My fears were in no way lessened by the Minister's frequent use of the word "convenience". Whose convenience was he considering? Entirely the convenience of the Administration. My right hon. and hon. Friends and I are much more concerned about the convenience of the taxpayer.
This is the repayment of money already taken from the taxpayer. The taxpayer is to have his own money back. Would it not be far better to start from the point of view of the convenience of the person who should have his own money back? What is the convenience of that person as regards the keeping of records? My right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) said—simple as the proposition is, it is none the less good for all that—that it would be quite sufficient to put upon the taxpayer seeking the return of his money an obligation to satisfy the Minister by reasonable proof that he had in fact paid the tax.
If that were done, the taxpayer could suit his own convenience. He would know that he had to keep some records such as would afford every prospect of getting his money back. That would be a perfectly adequate safeguard for the Minister, but would leave it open to the taxpayer to keep such records within that limit as were most convenient to him.
That must be the right approach, because——
The Minister wags his head, but I was pausing only for breath before going on with my "because". If he waits till I have finished the sentence, he will probably agree. He is not as unreasonable as all that. He is reasonable enough to appreciate that there may be arguments on all sides.
The Minister will be paying taxes back to an infinite number of people conducting their business in an infinite number of fields and in an infinite number of ways within each field. How will he devise a form of records suitable to them all? Some of them could do with the simplest possible records. Others will need more complicated ones.
Basically, this is a question of approach. I should be a good deal happier if there had been some indication, just a teeny-weeny indication, in the speech of either Minister that he was considering the convenience of the taxpayer and not simply his own convenience in the midst of the problems which the Government have heaped upon their shoulders by setting about this exercise. Even at this late stage, it would be an indication that they had some regard for the convenience of the taxpayer if they were themselves to bring forward a small Amendment about reasonableness.
If the Minister is right, he is giving nothing away. He says that he cannot imagine an unreasonable Minister. It seems that his imagination has left him for a moment. I think that he can probably remember several, let alone imagine them. But, if he is right and if no Minister will be unreasonable about it, why not make sure of it? He will lose nothing in getting all he wants. Let him accept some such words as, "such records as are reasonably required for the purpose of", or the like. That would be some indication that the position of the millions referred to here is being considered as well as the position of the Government.
It would also be an indication that the Government were taking this matter seriously and having some regard for the taxpayers whom we all represent if the Financial Secretary were to forbear from such cheap gibes as those with which he ended his speech. If he calls eight minutes directed to the effect of this tax on the oil industry as spending too much, or even enough, time on one subject he has peculiar views.
If the right hon. and learned Gentleman thinks that the time allotted by the Government to discussion of this tax gives anything like adequate time to consider the very serious effect which it has on my constituents in a hundred different ways, he has very curious ideas about time. If he has such curious ideas about that, perhaps the country will soon come to realise that he, like all his colleagues on the Front Bench, has some very curious ideas about government as a whole.
I am delighted with the speech which has just been made by my hon. and learned Friend the Member for Southport (Mr. Percival). I thought it a very sensible, sound speech, though my own view is that all Ministers, Socialist and Conservative alike—and Liberals, if there ever are any Liberal Ministers—like collecting statistics. My trouble is that they never collect the statistics which I want; the things which I should like collected they do not bother about, and I think that men like collecting statistics far more than women like collecting statistics.
However, I rose because I could not resist answering the gibe made by the Financial Secretary when he commented about my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) after my right hon. and learned Friend had spoken for the Opposition. If I had been leading on the Front Bench I would have responded a hundred times, especially after the way the Minister responded to the request we made for information. I think that the Financial Secretary, who is generally very polite, would have been better guided if he had refrained from making a nasty little gibe like that. It was rather lucky for him that I was not sitting on the Front Bench, because I should have done a jolly sight more about it than our shadow Minister.
However, I hope that the right hon. Gentleman the Minister of Labour, whom I, too, am very pleased to see back, will respond to the case which has been put forward. I can recollect speeches being made in the country by every single Member of both parties demanding that we collect statistics. There are far too many statistics, and I sometimes wonder what happens to them, and whether it is the case that the various Ministries get waste paper payments for the waste paper they sell by keeping on adding to the number of statistics they collect.
That is all I have to say. I am delighted to have had the opportunity of, I hope, giving the Financial Secretary one straight from the shoulder.
I would add one other point for consideration by the Minister of Labour. In his remarks he used, I think, the words, "We are bound to have records of some sort". The trouble about it is that this does not give us any idea of what sort of records, or of what requirements there may be which may change from time to time in the future.
The usual excuse given for rather vague and extensive powers is that the powers are very difficult to define. That is the reason given usually, but in this case the Minister himself signified that the requirements would be relatively simple—the number of employees in relation to whom the original tax had been paid, some proof that the money had been paid, the names of the persons, possibly.
These are relatively simple and I should have thought, as an alternative to the suggestion of the hon. Member for Orpington (Mr. Lubbock) and my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke), that it would have been possible for the Minister to have specified these particulars. These will not change from time to time; I cannot see how they would be different in six months' or a year's time from what they are immediately; and the sort of information required would be very much the same from month to month and year to year. I would think that this was capable of a fairly simple definition, but the Minister is making no definition.
We should like the right hon. Gentleman to define in some way the definite requirements, because, after all, these inquisitions are being made on all sorts of people, whether they are running small firms—or farms, as my hon. Friend suggested—and who are increasingly harassed by the enormous number of interrogations there are about Income Tax and Capital Gains Tax, and so on. Here is just another record which they have to keep.
Against that background, I hope that the Minister can agree with us that it is not unreasonable to ask for this additional clarification.
I wonder whether I may remind the right hon. Gentleman what it is that we are asking for. It is that the exceptionally wide powers in subsection (4) should be restricted, and not encourage or make it easy for anyone to evade this legislation or to defraud the Revenue of what it is entitled to. It is no good the Minister of Labour saying that giving the Minister very wide powers does not matter, as he will not abuse them. Surely it is our duty to scrutinise the kind of powers given to Ministers of whatever political complexion; and if the powers are unnecessarily wide, as they are, then it is our duty to restrict them.
I would have thought it the simplest thing in this case to restrict the wording of subsection (4) of the Clause in the way which we have suggested, and acceptable to the scheme of the subsection, and I would ask the Minister to give it very serious consideration. If the Minister requires this kind of information as being necessary to satisfy himself that this tax has been paid and properly paid, then I would have thought that that could have been achieved by the sort of wording which has been suggested, and that it would have been competent for the Minister to have done that. In certain circumstances, as my hon. Friend suggested, there may possible be enormous expense for the taxpayer himself.
It is all very easy, in this day and age, to make life as simple as possible for the Executive, but we have to remember the taxpayer's position. I should have thought that it would have been impossible to have eased his lot, even if slightly, in this way, and that it was the duty of the Government, as it certainly is of the Committee, to try to do so.
I am sorry that I disappointed my hon. Friend the Member for Tynemouth (Dame Irene Ward), but if I did not trouble to reply to the Financial Secretary it was because I thought the best way was to ignore his remark about my right hon. and learned Friend——
I am sure that the hon. and learned Gentleman knows my right hon. and learned Friend well enough to know that he had a sudden call for which he had to leave and that otherwise he would not have dreamt of any discourtesy.
What puzzles me about the last half-hour of the debate is the desire of hon. Members opposite to have this reasonable little Amendment to subsection (4) when it was not put down and we are not discussing such an Amendment. However, I will certainly look very carefully at what has been said here this afternoon on the question of whether subsection (4) may not carry "reasonable" in it. I see no reason why I should not look at it.
I am sorry if there is any suspicion of Ministers. When I spoke I was thinking of reasonable Ministers. I think that it would be almost 50 per cent. of those on the Opposition Front Bench who have been my predecessors in office. I have always found them reasonable.
Does the right hon. Gentleman not appreciate and agree with me that our concern about subsection (1,b) is that it is intimately bound up with subsection (4), and that as long as subsection (4) stands as it does we feel, and, I think, with justification, that that paragraph (b) should not be allowed to stand?
I will certainly read what has been said. I think that this emanated from the thoughtfulness of the hon. Member for Orpington (Mr. Lubbock), who suggested a certain word for subsection (4). I have said we will look at it again.
|Division No. 150.]||AYES||[4.50 p.m.|
|Albu, Austen||English, Michael||Jeger, George (Goole)|
|Allaun, Frank (Salford, E.)||Ennals, David||Jeger, Mrs. Lena (H'b'n&St. P'cras, S.)|
|Alldritt, Walter||Evans, Albert (Islington, S. W.)||Jenkins, Hugh (Putney)|
|Allen, Scholefield||Faulds, Andrew||Jenkins, Rt. Hn. Roy (Stechford)|
|Anderson, Donald||Fernyhough, E.||Johnson, Carol (Lewisham, S.)|
|Atkins, Ronald (Preston, N.)||Finch, Harold||Jones, Dan (Burnley)|
|Bacon, Rt. Hn. Alice||Fitch, Alan (Wigan)||Jones. Rt. Hn. Sir Elwyn (W. Ham, S.)|
|Bagier, Gordon A. T.||Fletcher, Raymond (Ilkeston)||Jones, J. Idwal (Wrexham)|
|Beaney, Alan||Fletcher, Ted (Darlington)||Judd, Frank|
|Bence, Cyril||Floud, Bernard||Kelley, Richard|
|Bennett, James (G'gow, Bridgeton)||Foley, Maurice||Kenyon, Clifford|
|Bessell, Peter||Foot, Michael (Ebbw Vale)||Kerr, Russell (Feltham)|
|Bidwell, Sydney||Ford, Ben||Lawson, George|
|Binns, John||Forrester, John||Leadbitter, Ted|
|Bishop, E. S.||Fraser, John (Norwood)||Ledger, Ron|
|Blackburn, F.||Fraser, Rt. Hn. Tom (Hamilton)||Lever, Harold (Cheetham)|
|Blenkinsop, Arthur||Freeson, Reginald||Lewis, Ron (Carlisle)|
|Booth, Albert||Galpern, Sir Myer||Lomas, Kenneth|
|Bowden, Rt. Hn. Herbert||Gardner, A. J.||Luard, Evan|
|Boyden, James||Garrett, W. E.||Lubbock, Eric|
|Braddock, Mrs. E. M.||Garrow, Alex||McBride, Nell|
|Bradley, Tom||Ginsburg, David||McCann, John|
|Brown, Rt. Hn. George (Belper)||Gordon Walker, Rt. Hn. P. C.||MacDermot, Niall|
|Brown, R. W. (Shoreditch & F'bury)||Gourlay, Harry||McGuire, Michael|
|Buchan, Norman||Gray, Dr. Hugh (Yarmouth)||Mackenzie, Alasdair (Ross&Crom'ty)|
|Butler, Herbert (Hackney, C.)||Gregory, Arnold||Mackie, John|
|Callaghan, Rt. Hn. James||Grey, Charles (Durham)||Mackintosh, John P.|
|Carmichael, Neil||Griffiths, David (Rother Valley)||Maclennan, Robert|
|Chapman, Donald||Griffiths, Rt. Hn. James (Llanelly)||MacPherson, Malcolm|
|Coe, Denis||Griffiths, Will (Exchange)||Mahon, Peter (Preston, S.)|
|Concannon, J. D.||Grimond, Rt. Hn. J.||Manuel, Archie|
|Corbet, Mrs. Freda||Gunter, Rt. Hn. R. J.||Mapp, Charles|
|Cousins, Rt. Hn. Frank||Hamilton, James (Bothwell)||Mayhew, Christopher|
|Craddock, George (Bradford, S.)||Hamilton, William (Fife, W.)||Mendelson, J. J.|
|Cullen, Mrs. Alice||Hamling, William||Miller, Dr. M. S.|
|Dalyell, Tam||Hannan, William||Mitchell, R. C. (S'th'pton, Test)|
|Davidson, Arthur (Accrington)||Harrison, Walter (Wakefield)||Molloy, William|
|Davidson, James (Aberdeenshire, W.)||Haseldine, Norman||Morris, Charles R. (Openshaw)|
|Davies, Dr. Ernest (Stretford)||Hazell, Bert||Moyle, Roland|
|Davies, Harold (Leek)||Henig, Stanley||Murray, Albert|
|Davies, Robert (Cambridge)||Herbison, Rt. Hn. Margaret||Newens, Stan|
|de Freitas, Sir Geoffrey||Hooley, Frank||Noel-Baker, Francis (Swindon)|
|Delargy, Hugh||Hooson, Emlyn||Norwood, Christopher|
|Dell, Edmund||Horner, John||Ogden, Eric|
|Diamond, Rt. Hn. John||Houghton, Rt. Hn. Douglas||O'Malley, Brian|
|Dickens, James||Howarth, Harry (Wellingborough)||Oram, Albert E.|
|Dobson, Ray||Howarth, Robert (Bolton, E.)||Orbach, Maurice|
|Doig, Peter||Howie, W.||Orme, Stanley|
|Donnelly, Desmond||Hoy, James||Oswald, Thomas|
|Dunn, James A.||Hughes, Emrys (Ayrshire, S.)||Owen, Will (Morpeth)|
|Dunnett, Jack||Hughes, Roy (Newport)||Page, Derek (King's Lynn)|
|Dunwoody, Mrs. Gwyneth (Exeter)||Hunter, Adam||Paget, R. T.|
|Eadie, Alex||Hynd, John||Palmer, Arthur|
|Edwards, Robert (Bilston)||Irvine, A. J. (Edge Hill)||Pannell, Rt. Hn. Charles|
|Ellis, John||Jackson, Colin (B'h'se & Spenb'gh)||Pardoe, John|
|Park, Trevor||Silkin, Rt. Hn. John (Deptford)||Wallace, George|
|Parkyn, Brian (Bedford)||Silkin, S. C. (Dulwich)||Watkins, David (Consett)|
|Pearson, Arthur (Pontypridd)||Silverman, Julius (Aston)||Weitzman, David|
|Peart, Rt. Hn. Fred||Silverman, Sydney (Nelson)||Wellbeloved, James|
|Pentland, Norman||Slater, Joseph||Whitaker, Ben|
|Perry, Ernest G. (Battersea, S.)||Small, William||Whitlock, William|
|Price, Christopher (Perry Barr)||Spriggs, Leslie||Williams, Alan (Swansea, W.)|
|Price, Thomas (Westhoughton)||Steel, David (Roxburgh)||Williams, Alan Lee (Hornchurch)|
|Price, William (Rugby)||Steele, Thomas (Dunbartonshire, W.)||Williams, Mrs. Shirley (Hitchin)|
|Pursey, Cmdr. Harry||Stonehouse, John||Williams, W. T. (Warrington)|
|Redhead, Edward||Strauss, Rt. Hn. G. R.||Willis, George (Edinburgh, E.)|
|Rees, Merlyn||Swain, Thomas||Wilson, Rt. Hn. Harold (Huyton)|
|Richard, Ivor||Symonds, J. B.||Wilson, William (Coventry, S.)|
|Roberts, Albert (Normanton)||Thomas, George (Cardiff, W.)||Winstanley, Dr. M. P.|
|Roberts, Gwilym (Bedfordshire, S.)||Thorpe, Jeremy||Winterbottom, R. E.|
|Roebuck, Roy||Tinn, James||Woodburn, Rt. Hn. A.|
|Rose, Paul||Tomney, Frank||Woof, Robert|
|Ross, Rt. Hn. William||Tuck, Raphael||Yates, Victor|
|Rowland, Christopher (Meriden)||Urwin, T. W.|
|Ryan, John||Varley, Eric G.||TELLERS FOR THE AYES:|
|Sheldon, Robert||Wainwright, Edwin (Dearne Valley)||Mr. Joseph Harper and|
|Shinwell, Rt. Hn. E.||Wainwright, Richard (Colne Valley)||loan L. Evans.|
|Short, Mrs. Renée (W'hampton. N. E.)||Walker, Harold (Doncaster)|
|Alison, Michael (Barkston Ash)||Heseltine, Michael||Osborne, Sir Cyril (Louth)|
|Allason, James (Hemel Hempstead)||Higgins, Terence L.||Page, John (Harrow, W.)|
|Astor, John||Hill, J. E. B.||Peel, John|
|Balniel, Lord||Hobson, Rt. Hn. Sir John||Percival, Ian|
|Batsford, Brian||Hogg, Rt. Hn. Quintin||Pike, Miss Mervyn|
|Beamish, Col. Sir Tufton||Holland, Philip||Pounder, Rafton|
|Biffen, John||Hordern, Peter||Powell, Rt. Hn. J. Enoch|
|Blaker, Peter||Hornby, Richard||Price, David (Eastleigh)|
|Body, Richard||Howell, David (Guildford)||Prior, J. M. L.|
|Boyd-Carpenter, Rt. Hn. John||Hutchison, Michael Clark||Pym, Francis|
|Boyle, Rt. Hn. Sir Edward||Irvine, Bryant Godman (Rye)||Rawlinson, Rt. Hn. Sir Peter|
|Brinton, Sir Tatton||Jenkin, Patrick (Woodford)||Renton, Rt. Hn. Sir David|
|Brown, Sir Edward (Bath)||Jennings, J. C. (Burton)||Ridley, Hn. Nicholas|
|Bruce-Gardyne, J.||Kershaw, Anthony||Ridsdale, Julian|
|Buchanan-Smith, Alick (Angus, N & M)||Kirk, Peter||Rossi, Hugh (Hornsey)|
|Bullus, Sir Eric||Kitson, Timothy||Royle, Anthony|
|Carlisle, Mark||Knight, Mrs. Jill||Scott, Nicholas|
|Carr, Rt. Hn. Robert||Lambton, Viscount||Sharples, Richard|
|Cary, Sir Robert||Lewis, Kenneth (Rutland)||Sinclair, Sir George|
|Chichester-Clark, R.||Lloyd, Ian (P'tsm'th, Langstone)||Summers, Sir Spencer|
|Cooper-Key, Sir Neill||Lloyd, Rt. Hn. Selwyn (Wirral)||Taylor, Sir Charles (Eastbourne)|
|Corfield, F. V.||Longden, Gilbert||Taylor, Frank (Moss Side)|
|Costain, A. P.||McAdden, Sir Stephen||Temple, John M.|
|Craddock, Sir Beresford (Spelthorne)||MacArthur, Ian||Thatcher, Mrs. Margaret|
|Cunningham, Sir Knox||Maclean, Sir Fitzroy||Tilney, John|
|Dance, James||Macleod, Rt. Hn. Iain||Turton, Rt. Hn. R. H.|
|d'Avigdor-Goldsmid, Sir Henry||McMaster, Stanley||van Straubenzee, W. R.|
|Dean, Paul (Somerset, N.)||Macmillan, Maurice (Farnham)||Vaughan-Morgan, Rt. Hn. Sir John|
|Dodds-Parker, Douglas||Marten, Neil||Vickers, Dame Joan|
|Eden, Sir John||Mathew, Robert||Walker, Peter (Worcester)|
|Elliot, Capt. Walter (Carshalton)||Maude, Angus||Walker-Smith, Rt. Hn. Sir Derek|
|Fletcher-Cooke, Charles||Maudling, Rt. Hn. Reginald||Ward, Dame Irene|
|Gilmour, Sir John (Fife, E.)||Mawby, Ray||Weatherill, Bernard|
|Glover, Sir Douglas||Maxwell-Hyslop, R. J.||Webster, David|
|Goodhew, Victor||Maydon, Lt.-Cmdr. S. L. C.||Wells, John (Maidstone)|
|Gower, Raymond||Mills, Peter (Torrington)||Whitelaw, William|
|Grant, Anthony||Mitchell, David (Basingstoke)||Wills, Sir Gerald (Bridgwater)|
|Gresham Cooke, R.||Munro-Lucas-Tooth, Sir Hugh||Wilson, Geoffrey (Truro)|
|Gurden, Harold||Nabarro, Sir Gerald||Wolrige-Gordon, Patrick|
|Hall, John (Wycombe)||Neave, Airey||Woodnutt, Mark|
|Harris, Frederic (Croydon, N. W.)||Noble, Rt. Hn. Michael||Worsley, Marcus|
|Harris, Reader (Heston)||Nott, John||Wylie, N. R.|
|Harrison, Col. Sir Harwood (Eye)||Onslow, Cranley||Younger, Hn. George|
|Harvey, Sir Arthur Vere||Orr, Capt. L. P. S.|
|Hawkins, Paul||Orr-Ewing, Sir Ian||TELLERS FOR THE NOES:|
|Heath, Rt. Hn. Edward||Osborn, John (Hallam)||Mr. Francis Pym and|
|Mr. Peter Blaker|
I think that it will be convenient if, with that Amendment, we discuss the following Amendments: No. 91, in page 9, line 4, after "may", insert:
subject to subsection 6 hereof".
No. 92, in page 9, line 13, after "of", insert:
or refusal fully to ante-date".
No. 352, in page 9, line 41, leave out from "to" to "falls" in line 42 and insert:
the date as from which any establishment shall be deemed to have been registered, or as to the amount, if any, which".
I think that it will be convenient for the Committee if, with that Amendment, we discuss the following Amendments: No. 96, in page 9, line 30, at end insert:
or if any such direction or demand is referred by the employer to any convenient County Court or Sheriff Court, as that Court may direct".
No. 98, in line 41, leave out from "Act" to "the" in line 43.
No. 100, leave out lines 45 and 46 and insert:
County Court or Sheriff Court convenient to the place in respect of which the question arises".
No. 102, in line 46, at end add:
or in the case of any employer claiming under section 5 of this Act, then to and by a County Court or Sheriff Court".
No. 153, in line 46, at end add:
or in the case of any employer where qualifying activities fall within section 2(3)(c) of this Act or are related to fishing, then to and by an Agricultural Land Tribunal or, in Scotland, by the Land Court".
No. 104, in line 46, at end add:
(7) Where any question under section 5 of this Act or under this section may be referred to or decided by any County Court or Sheriff Court, there shall be an appeal therefrom on any question of law to the Court of Appeal or to the Court of Session.
No. 154, in line 46, at end add:
(7) Immediately after the determination of such tribunal any employer, if dissatisfied with the determination as being erroneous in point of law, may declare his dissatisfaction to the tribunal.
(8) The employer having declared his dissatisfaction, may, within 30 days after the determination, by notice in writing addressed to the tribunal, require the tribunal to state and sign a case for the opinion thereon of the High Court or, in Scotland, of the Court of Session as the Court of Exchequer in Scotland.
(9) The case shall set forth the facts and the determination of the tribunal and the party requiring it shall transmit the case, when stated and signed, to the High Court within 30 days after receiving the same, thereupon subsections (4) to (9) of section 64 of the Income Tax Act 1952 shall apply to any such case stated as if it were a case stated under that Act.
No. 167, in line 46, at end add:
(7) If any question arises under section 1, 2, 4, 5 or 6 of this Act as to whether any and if so what payments of selective employment tax have been paid or as to the employer by whom such payments were paid or as to the contribution weeks or as to the employed persons in respect of whom any such payments were paid, that question shall be referred to and determined by any convenient county court or sheriff court.
No. 168, in line 46, at end add:
(7) If any question arises as to whether any and if so what amount falls to be paid to any employer under section 1, 2 or 5 of this Act that question shall be referred to and determined by any convenient county court or sheriff court.
No. 105, in Clause 8, page 10, line 10, leave out paragraph (a).
This group of Amendments raises two major questions. The first question of principle is what questions should be decided by the courts or a tribunal, and what should be left to the absolute discretion of the Minister. The second principal problem is whether disputed questions, whatever they may be should be decided by the county courts or sheriff courts or, as has been provided by the Bill, by the industrial training tribunal?
The point at issue is whether under the Bill as drafted, there are certain questions which the citizen is prevented from having determined by any court or tribunal at all, and whether he is not being placed too much in the hands of Ministers and submitted to the decision of the appropriate Minister or his officials. And are there not, perhaps, some points at which the citizen has no rights at all to have recourse to the courts for a decision?
I submit that there are four points where the Bill prevents the citizen from having an independent decision and leaves the matter to the Minister, and where this ought to be remedied.
First, in all cases where there is no dispute as to the amount which is due to be levied, the question whether an employer or some other person should have the repayment may be one of considerable importance because it may be the employer who has paid the money but put the refund over to an assignee or to the liquidator, or to some other person. There may well be a question as to the person to whom the refund ought to be paid and is due. In the case of a liquidation or a trustee in bankruptcy, the Inland Revenue might have a priority claim in the liquidation or bankruptcy and it might be important from the Government's point of view that the money should not be paid back to the bankrupt employer or the liquidated company but should be paid to the person who would give priority to the Inland Revenue.
This arises under Amendment No. 167 which says:
If any question arises … as to whether any and if so what payments of selective employment tax have been paid or as to the employer by whom such payments were paid or as to the contribution weeks or as to the employed persons in respect of whom any such payments were paid, that question shall be referred to and determined by any convenient county court or sheriff court.
It is in relation to that that there is a problem, and I do not think that the Bill deals with it. The Government may be in some difficulty as to the exact per-
son to whom the repayment ought to be made, and the Ministry ought to lay down a procedure by which that question can be settled.
The second question which might arise is the date or the period in respect of which payments were made, there being no dispute that certain amounts had been levied, as to the amount. There may be payments which have been made in bulk originally. To that extent an employer may have made a bulk payment and it may not be wholly clear to which contribution weeks his payments which are to be refunded refer. Different rights may arise as between an assignee or somebody else on a bankruptcy, and it may be that some question will arise about the contribution weeks in respect of which the bulk payments were made by an employer.
Thirdly, there is the topic which we have discussed—and this, I think, comes under one of my other Amendments—namely the direction of the Minister about the keeping of records and whether a direction is reasonable. The Minister has got this point and has promised to look at it. We are grateful to him for that, and I mention it only in passing.
Fourthly, there is the question whether the citizen has failed to comply with a direction which had been given. It may have been a reasonable direction but there may be some doubt about whether that direction has been complied with. Therefore, I submit that under the formal drafting of the Bill there are a number of questions which may well arise between the citizen and the Government and for which there is not provided any reference to any tribunal. I would have preferred to have seen the straight general question whether the citizen was entitled to a refund and if so, how much, remitted to whoever is to decide issues because that leaves all the preliminary steps and all the necessary questions of fact and of law on which a claim to a refund is founded to be decided by whichever tribunal or court is deciding that question.
The second question is whether it is right to leave to tribunals under the Industrial Training Act, 1964, the decision of such issues as are remitted for independent decision when they arise between an employer and the Minister. I can see that there may be strong arguments in either direction, but subject to anything that the Financial Secretary may have to say on this matter, at the moment I strongly prefer the right of resort of the taxpayer to the ordinary courts. We suggest that these should be the county courts in England and Wales and the sheriff courts in Scotland. The ordinary courts are much more numerous and more easily available to the citizen. One tribunal is to deal with England and Wales and one with Scotland—no doubt based in various localities.
No doubt one will be in the Highlands, with which my right hon. and learned Friend will be dealing. There is one tribunal at Inverness, but by 15th July it had no employers' representatives on its panel, and it was not ready to operate. There are two in Wales—one in Cardiff and one in Colwyn Bay—but the Colwyn Bay tribunal, by 15th July last, had on it no employers' representatives.
If we take England, we find that outside London there are only five centres north of the Trent and six south of it. That does not begin to compare, in terms of convenience and availability, to the numbers of county courts which are available for people in case of dispute. It is surprising how far some people would have to go in some areas of England. In East Anglia, they would have to go to Norfolk, Lincoln or London; in Kent, Surrey and Sussex they would have to go either to Southampton or London. In Oxfordshire, Buckinghamshire, Bedfordshire, Leicestershire, Nottingham shire, and Derbyshire the centres are based on London, Lincoln and Birmingham only.
This shows the extent to which the tribunals are based on the great industrial centres, and how the interviewing areas are almost uncatered for by these tribunals. It may be possible for the secretaries of the tribunals to arrange for them to assemble in different parts of the country, in remote areas, but it would be a great waste of effort for them to be specially assembled in order to try single cases in remote areas, whereas the ordinary citizen could easily turn to his local court.
I do not think that the questions which will arise and which ought to be tried will affect large companies in the centre of Birmingham, Manchester or London; they are more likely to concern small people, whom the Standard Industrial Classification has ignored—who do not fit into the ordinary provisions of the classification—or of whom the Minister, when instructing the draftsmen, was not aware, and overlooked. Many problems may affect small individuals, and these should be tried in the ordinary courts.
Secondly, the tribunals themselves are probably inexperienced. We do not know a great deal about their functioning, and looking through the list of chairmen one would have said that the vast majority are people of seniority who may have become county court judges if they had been members of the Bar, but who have not yet become members of the Bar, and to this extent it would be as well to rely upon county court judges.
There are 500 ordinary members of the panels of tribunals, and these change very frequently. The Minister of Labour gave that as one reason for not listing them all forthwith. But they are all drawn from the great industrial centres and cannot have a great deal of knowledge of farming, forestry, fishing or charities, which are the sort of subjects in respect of which problems will arise and will have to be decided, on the question of refunds. If all the members are drawn from the great industrial centres they will have little local knowledge about the large areas of country between our industrial centres. No member of a tribunal resides in my division, and none resides in the counties of Oxford, Buckingham, Bedford, or Northampton. I have not gone through any others, but it shows that the selectivity of members of these panels is fairly concentrated.
County court judges, on the other hand—and I have no doubt that the same consideration applies to sheriff-substitutes in Scotland—acquire a considerable knowledge of local conditions, industries, problems and employment, and a considerable expertise in the immediate problems of the areas of their courts.
Another point in favour of county courts is that industrial training tribunals have no qualified clerk—no person who can take hold of the proceedings. It will all be left to the chairmen. In the preliminary proceedings there is a startling difference. The preliminary proceedings before the tribunals, at any rate in England and Wales, are controlled by the secretary in London, at the Central Office of Industrial Tribunals, and under the Regulation any preliminary proceedings about any claim, or defence to the claim, or particulars of the claim, or discovery of the claim must be done by way of a letter sent to the Central Office.
An odder way of conducting a possible investigation into a dispute in, say, the North Riding of Yorkshire than for the respective parties to have to write to the secretary in London asking him to decide whether or not certain preliminary procedures should be undertaken, I cannot imagine.
If, as I hope, regulations are made providing powers of discovery and other necessary preliminary proceedings in respect of complicated cases, apparently there is no machinery or officer who can carry it out except the secretary of tribunals in London. Certainly, the local branches of these panels have no facilities and no experts, unless everything is to be put upon the shoulders of the chairmen, which will be quite wrong, because they should have to decide the cases, and not prepare them.
Finally, legal aid is provided for in the case of county courts, but not before these tribunals. I appreciate that there may be arguments the other way. I appreciate that the Ministry of Labour may be anxious to extend the influence and importance of these industrial training tribunals, but that ought not to be the object. The object should be to see that what is best for the citizen and best for the Government in settling disputes under the Bill is achieved.
Difficult questions may well arise. Some may arise in relation to large plants, which may involve matters of principle affecting a whole industry, in which case it is very important that the facts should be determined and that the first determination should be in the best possible form. For this the county courts would seem to be eminently suitable, and our Amendments propose that there should be an appeal on a point of law from the county courts.
Many of these cases will concern small men who have been overlooked by the Bill and by the Standard Industrial Classification. They may be marginal cases, affecting a baker in Leamington, or another such person, to whom the question whether he will get a premium or a refund, or nothing at all, will be of considerable importance, and who may well, in some instances, wish to raise some difficult and tricky questions on the interpretation of the Bill. I would have thought that the ordinary local county courts could deal with such questions.
Another source of litigation is likely to arise if the local Ministry of Labour official begins to operate the Act so as to try to prevent the Government from making repayments unless he is satisfied that payment should be made. Indeed, that will be his duty. Gradually, he will extend the area in which refunds are not made. No doubt it will be said that he would not do it under the present Minister, but we know that the Bill must be administered locally, and that cases often arise where some local officials take a stricter view than others. It is in relation to such cases that local county court judges could protect the citizen.
I cannot see why local county courts should not decide whether a citizen should get back money which the Government have taken from him, and which Parliament is providing should be paid back to him in certain circumstances. For these reasons, I would recommend to my right hon. and hon. Friends that we should insist on these Amendments, subject to anything which the Financial Secretary may say.
It is rather curious that this part of the Bill goes into the sort of detail which is absent from subsection (4) which we discussed in connection with an earlier series of Amendments. Whereas that one gave just the statement about the record, this one attempts a slight definition. My right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) has clearly shown the case for further definition about points which could easily arise, although I do not for a moment suggest—I am sure that my right hon. and learned Friend would not suggest—that there will be a vast number of these disputes. Nevertheless, there may be some, in certain circumstances.
In the widest sense, my right hon. and learned Friend would not, I am sure, object to the term "successor in title" in relation to the first possible grounds for disagreement. While there may be no dispute as to amount or as to particular employees, the fact remains that, the tax having been paid, it will be a successor in title who is concerned about the repayment. That term would, of course, include the purchaser of an establishment or the son of or a person who has taken over from a deceased person, or a receiver, in the case of liquidation or bankruptcy.
On the question of whether the citizen has complied with a direction, I respectfully submit that this may be a matter of great importance. I recognise that Government Departments seem to think that they are the repositories of superior wisdom in this matter, and that they would be the last to do the citizen out of his or her proper rights; however, in a dispute between the citizen and a Department of this kind, although the citizen should not have an unfair advantage, he ought to be treated with every possible fairness.
The Amendment would ensure that this matter was considered by the court or tribunal. In justice, it should be. The Government Department may say that, in its view, the citizen has not complied, but this is often a matter of reasonable doubt. I hope that the Financial Secretary will not close his mind to the importance of this issue.
On the question whether the reference should be to the county court and, in Scotland, the sheriff court or to a tribunal, my predilection is for the county court or sheriff court——
I do not know whether the hon. Gentleman is aware of the great distances and great county court areas, especially in the Highlands, but I would assume, with out being certain about it, that tribunals would operate in the larger towns in these areas, where one would have to travel great distances to the county court.
In the case of Scotland, the hon. Gentleman will see, if he refers to the Amendments, that in every appropriate case where we refer to Scotland, we include the term "sheriff court" as well as reference to the county court in England.
My right hon. and learned Friend made some pertinent remarks about the comparative areas of the courts and the industrial tribunals. The balance is, therefore, once again on the side of the courts. He made a strong case for preferring them. I prefer the courts in matters of this kind, unless there is some overwhelming technical reason for preferring the tribunal, because, in disputes between an ordinary citizen and the State, although there is not the separation of powers between the judiciary and the executive in this country which there is in some others, nevertheless, there is always in my mind, and, I hope, in those of many hon. Members, a feeling that it is a matter of some pride to us that our judiciary has in general remained more severely apart from the executive than have tribunals in general. There is a greater separation of powers between the judiciary as a whole and the executive than between some of the tribunals and the executive.
A citizen who is aggrieved in a matter of this sort and who goes before a county court can feel that he is going before a body which is, I would not say more impartial, but more detached from the subject under consideration. In addition to the excellent and cogent reasons advanced by my right hon. and learned Friend, I would put forward this reason. I hope that the hon. and learned Gentleman will consider it sympathetically.
The right hon. and learned Member for Warwick and Leamington (Sir J. Hobson), who told me that he could not stay to hear my reply, suggested that this series of Amendments raised two types of issue: first, which issues should be determined by an eventual appeal to a tribunal or the courts and which should be determined finally by the Minister; and, secondly, for those where there is to be a right of appeal, to what tribunal the appeal should lie.
With great respect to the right hon. and learned Gentleman, I do not think that these Amendments raise the first points. It appeared to me that he was seizing the opportunity of the debate to raise those points which are not raised in the Amendments. In an intervention on his very first point, I asked him to which Amendment he was speaking. He said that it was Amendment No. 167, but with respect I do not think that it deals with the point which he was discussing.
What he suggested was that there were four cases in which, at the moment, there is no right of appeal to the tribunal, in which he thought the final decision lay with the Minister, and he said that there ought to be a right of appeal. Because I do not think that the Amendments raise these points, I cannot give a final and authoritative answer to his questions, but I will certainly give the Committee my reaction, for what it is worth, to this matter.
First, he suggested that, where there is no dispute as to the amount but there is a dispute as to whether the payments should be made to a particular employer or to some other person, there is no provision for that issue to be determined. If the issue is merely to which of two employers it should be paid, that is covered by Clause 7(6), which refers to an amount, if any, which falls to be paid to any employer. Therefore, the question as to the identity of the employer would clearly be an issue and a matter which could be appealed.
If it is a question of the point raised by the right hon. and learned Gentleman, as to whether he may have assigned his right, either voluntarily or by the operation of law—as in liquidation or bankruptcy—that would surely be a matter of general law for the general courts and not an issue to be determined under proceedings of this kind at all. If the initial right of an employer had been established and someone else intervened and said, "I have an assignment of those rights," this would be a matter to be determined by the ordinary law of the land——
What about the slightly different circumstances, those in which, after a person has paid the tax, the business has either been assigned or has passed, by operation of law, to a descendant? If that descendant or successor in title hopes to obtain the repayment, would there be any difficulty then with the Department?
It must depend on the terms of the assignment. If there is a dispute, in effect, between the original employer and the assignee about entitlement to payment, and notice is brought to the Minister's attention of that dispute, it is the kind of thing which would be determined in the ordinary way by court proceedings. I do not think that special provision is required in the Bill.
The next kind of proceedings to which reference has been made is that in which the date or period in respect of which payments were made was in dispute. I think that this would be covered
or as to whether any, and if so, what amount falls to be paid … under section 1, 2, or 5".
Payments under those Sections would be payments in respect of a particular period and, therefore, a dispute of that kind would be appealable. Thirdly, the hon. Member referred to a dispute whether any direction of the Minister is reasonable. This is harking back to the debate which we had on subsection (4). My right hon. Friend has said that he will look at that new point which has been raised.
The fourth point was whether the citizen has failed to comply with a direction under subsection (4). Again, I think that that is covered by subsection (6), because unless he had complied with a direction, he would not be able to establish his right of payment, and therefore the issue whether the amount falls to be paid to any employer would include an issue about whether he had complied with a direction.
I follow the argument that it may be said that all these are matters which have to be considered when we consider the words in subsection (6)—
whether any, and if so what, amount falls to be paid …
In that respect all these may be conditions precedent in one way or another. I see that there may well be some substance in that argument. But if that is so, does not the hon. and learned Gentleman think that a little clarification would help? In the time available before the next stage, if subsection (6) is intended to cover all this, would he consider whether it would not be possible and better to add a little clarification?
I confess that that is not my reaction. If the draftsman has, happily, found a simple form of words which is wide and all-embracing, attempts to refine it and spell it out tend, if anything, in their effect to be restrictive. It is better to leave it with the wider words. But if any hon. Member differs from that view, and thinks it right to put down an Amendment on Report, we will gladly consider it.
I turn to the main issue, whether the industrial tribunals are the right appellate tribunals in these issues or whether it would be better to have them tried by the county courts. Let us look, first of all, at the nature of the jurisdiction, which is surely much the most important aspect here. The issues involved will be mixed questions of law and fact in which a knowledge of the operation and workings of industry will obviously be of great advantage, as will legal knowledge. There will be such issues as disputes about the number of employees who are employed in the establishment and the nature and the extent of the activities in which they are employed.
It is argued that the constitution and the existing jurisdiction of the industrial tribunals renders them particularly well fitted to exercise this jurisdiction. As has been pointed out, they have a legally qualified chairman, who sits, usually, with two lay members from panels which have been set up by the Minister, again after consultation with representatives of both the employers and the employees. Their present jurisdiction, first, is under the Industrial Training Act, where they deal with appeals on disputes as to the levies to be paid by persons assessed by the industrial training board under that Act.
This raises very similar issues to those which will arise under the Bill—issues as to whether the employer and his employees are engaged in activities falling within the definition of a particular industry. It goes further, which is interesting, because the liability to pay the levy under the Industrial Training Act is assessed on the basis of establishments within the standard industrial clasification. Again, the liability to pay will depend upon whether the number of employees in an establishment is such that an establishment can be said to be wholly or mainly an establishment within a particular classification. This is precisely the sort of issue which one expects to be most likely to give rise to disputes and appeals. Consequently, these tribunals are very well fitted—one might almost say tailored—to be able to decide this kind of issue.
They also have to determine other issues concerning the status and identity of employers and employees. For example, they have to determine questions as to redundancy payments and rebates to employers under the Redundancy Payments Act and questions about the terms and conditions of employment under the Contracts of Employment Act, 1963. These tribunals have gained the respect of both sides of industry.
Particular criticism was directed—and it is reflected in one of the Amendments—in suggestions that these tribunals would not be experienced or suited to deal with disputes in agriculture. I would remind the Committee that my right hon. Friend the Minister of Labour is about to set up an industrial training board for the agricultural, horticultural, and forestry industries—for those who like to apply "industry" to those activities. I am not sure, personally, that I do. But, in any event, for this purpose they are being treated as an industry and will have their own industrial training board. Consequently, the same kind of issue as I have mentioned under that Act will be referred to these tribunals, and I am assured that there is no shortage of public-spirited people in agriculture who have come forward and are ready to serve on these panels.
The land tribunals, which have been suggested as an alternative tribunal in this respect, deal with very different sorts of jurisdiction and are chiefly concerned with disputes between agricultural landlords and their tenants about their terms of compensation and other issues arising out of agricultural tenancies. I do not think that they would be any better fitted to determine this class of issue than would industrial tribunals, particularly when they have these new responsibilities in agriculture.
Other administrative arguments were submitted in favour of county courts. It is true that at present more county courts than tribunals are sitting, but, obviously, we will want to see how this works out in practice. One can only guess at the number of appeals there will be, and there will be provision for the payment of expenses of people who must travel to where the tribunals are sitting to attend hearings. However, the places where the tribunals will sit are not yet fixed and, naturally, we shall be taking as reasonable a view as possible in trying to meet the convenience of all concerned.
The right hon. and learned Gentleman raised a procedural point about the preliminary proceedings which, he said, at present must be dealt with by letter through the Central Office. I will gladly look into that matter with my right hon. Friend. We want to see that a convenient procedure is evolved to enable people to raise any preliminary matters in that way with the tribunals. Naturally, the procedure will have to be the same for the whole country, and that is why any changes in procedure should be effected by the secretary of the London tribunal, but I will look into the matter. For these reasons I must advise the Committee that, having carefully considered what is the better form of tribunal, and having regard to the nature of the issues involved, we feel that these industrial tribunals provide the best way to do this job.
The third question raised by the Amendment is a right of appeal on points of law. That is already provided for under the Bill as drafted. Any decisions of the industrial tribunals will be final on questions of fact, but there will be a right of appeal to the High Court on points of law, and a similar right of appeal, in Scotland, to the Court of Session.
These industrial training tribunals, as they are called, are still very young. They were created in 1964 and although one or two further tasks have been put upon them since, their original function was extremely limited; that is, to hear appeals from employers who thought that they were being loaded too much in the Government's admirable endeavours to get industrial training centres going. Before that Measure, it had so often happened that certain employers did not pay their full whack towards the general business of industrial training in this country.
That was, of course, a limited task and one much more of fact than of law. The Financial Secretary rightly said that in the Bill there will be questions of mixed law and fact, and although that might have been true under the 1964 Act, it was surely much less true in the sense that the question of how much levy an employer should pay for the expenses of an industrial training board was much more a question of fact than of law.
Here we are dealing with a taxation Statute. There is no doubt that it is that, whatever it may be titled. It is notorious that in taxation Statutes dealing with taxation spreading over millions of people, and not just a few who would come under the 1964 Act, there will be many questions of law. It is true that under the Government's proposals there is an appeal allowed on a question of law from the industrial training tribunals, but is it not better to avoid some of the necessities of those appeals by having the question originally decided by a court of law, which can have its decision reported so that people know what is decided?
It may be that these industrial training tribunals will also have their decisions reported. I do not know. However, they are not as widely reported in, say, the local Press as decisions of the county courts would be on these important matters that affect a very large number of people, and by no means only industrial people. Under the Bill, not only employers of industrial labour will be concerned, but all those people who come under Clause 6, apart from many cases dealing with charities, agriculture, forestry, and so on.
Although we are told that an industrial training tribunal is to be set up for agriculture and forestry, it seems unnecessarily overloading and changing the work of these tribunals to give them something which, I have no doubt, in time they could do, but which the county courts are now eminently fitted to perform—that is, the task of deciding what is or what is not "an establishment".
Involved in this are such questions as what is the result if one drives a tunnel under a road or constructs a bridge over a road. Does one thereby create a single establishment out of two or, alternatively, create two establishments out of one? On the other hand, if one builds a wall down the middle of a bay in a factory, what is one creating? These are fundamental matters of law, according to the correct definition of "an establishment". It is unnecessary to deviate in a taxing Statute from the system of the law courts of this country unless it is absolutely essential to do so.
I am not one of those who, laudator tempores actae, say how disgraceful it is that successive Governments should have set up tribunals for special purposes, in many cases where they have not been necessary. However, if it is not necessary, then such tribunals should not be established and although the Financial Secretary made a plausible case in saying that these tribunals were being tailored for this purpose, I beg to differ. They are tailored for their original purpose of deciding how much certain employers should pay for industrial training, which is a relatively small matter compared with the enormous taxation being levied and to be refunded, sometimes with premium and sometimes without, by the provisions of this Bill.
I have a deep suspicion that this proposal springs from an unconscious dislike of the independent judiciary. I would not accuse the Financial Secretary or the Minister of harbouring such unconscious feelings, but I feel that somewhere lurking in the machine is this dislike and I wish that the Financial Secretary and his right hon. Friend would examine their consciences and be clear that deep down somewhere someone else in the machine does not feel this way.
There is no reason why the county court judge should not decide what is an establishment and why he should not decide all these questions, including those which the Financial Secretary rightly said, contrary to the fears of my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson), were appealable. It seems to me that those things, such as whether an assignment has been made, whether voluntarily or involuntarily, whether, on the death of an employer, who the proper successors in title should be—all things which the courts of law decide every day and which the industrial training tribunal never does—are the sort of thing that will have to be tried by whichever tribunal is finally chosen. One has only to name those things to see that a court of law is the right place.
I beg the Financial Secretary and the Minister of Labour to think again on this point. As I say, the industrial training tribunal system is very young and, at present very small—and rightly so, because it has not had a great deal to do, important though the work it has done has been, but almost immediately, within six months, when this Bill starts to operate there will be great pressure.
It is always at the beginning of the operation of a Bill—before there are precedents, and before people know where they are, what an establishment is, who qualifying workers are, and so on—that there is pressure of work. After a few cases have gone, perhaps, on appeal by case stated, and there is an authoritative decision, the pressure falls off, but in February and March of next year the pressure will be very considerable.
I do not want to harp again on the haste with which the Bill has been drafted and the difficulties of discussing it because of the Guillotine, but obviously, as the Chancellor of the Exchequer has admitted, there will be many rough edges. The Chancellor of the Exchequer has said over and over again in these debates that this is a tax and that we must solve the refunds on the tax by experience—solvitur ambulando, he said, though not in those words, time and time again.
One way of dealing with it solvitur ambulando, will be to go to this tribunal, but I doubt very much whether the structure of the training tribunals, set up for a totally different and much smaller purpose, and even though recently expanded slightly, would be anything like enough. On the other hand, we have the county court system there, extended over both countries, well designed and equipped for the purpose, carrying legal aid and with registries in the county courts which are most helpful and extremely full of advice for the subject, who may be quite a small man and unable to afford much in the way of advice, about how to serve his writ, and so on.
It seems to me that, from the mechanical point of view alone, it would in this case be unwise to divert from the normal system of appealing against taxation or appealing for refunds of taxation. Though, as I say, I acquit the two Ministers now present of any desire to remove jurisdiction from the regular courts of the land. I would not say the same of their colleagues. For the reason of convenience, for the reason of principle, and particularly because of the likely rush of business in the early months of next year before these tribunals can conceivably be extended and proliferated over the length and breadth of the two countries, I think that the Government should think again here, and then give the county courts this work.
I want very briefly to support what has been said by my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) and very earnestly to ask the Government to take another look at this very big question—because it is a big question—of whether appeals from the Minister should be to the court or to the tribunal.
I understand that the Minister of Labour, with his long and distinguished trade union background, probably just does not like lawyers or courts. There is, regrettably a deep-rooted suspicion of both. This I can understand, but I ask him particularly to put that suspicion out of his mind. It may be that his association with his hon. and learned colleagues has done a good deal to shift this deep-rooted feeling, but I should like to give another little prod and so help him get rid of a little more of it.
When considering this very important question, we must be quite sure of the premise from which we start. What are we looking for here? We are looking for a machine for resolving disputed questions of law and fact. Perhaps I may ask the hypothetical question: why do we so often go about looking for some different tribunal for some complicated answer when the simple answer is staring us right in the face?
What do lawyers and courts exist for? I ask that question in this context knowing that I have the floor and that I can answer to my own question, but I am glad to be able to do so, because there is a point here that should be made over and over again. Lawyers and courts, and the law which both exist to help in administering, have one purpose only—they are a service. They do not dictate or govern anything—they are there to provide a service, and that service, so far as is relevant to this debate, is purely and simply the resolving of disputed questions of facts and law. That is what we are talking about. It is being supposed and foreseen that there may be some of these disputed questions to be settled. I ask again: why should we go outside? The established courts have the respect of the whole land. When this remedy is there staring us in the face, why do we not just accept it, and not go outside?
The Financial Secretary has given one or two reasons for choosing these tribunals instead of the courts. He says that they will be dealing with disputes, with numbers of employees, and the circumstances in which they are employed, and who shall have repayment, and so on, and that the industrial trading tribunals are very suitable tribunals for deciding these issues; that they will have some sort of special expertise that will enable them to do so. But I ask the hon. and learned Gentleman—not now, but later on, when these debates are over—to consider whether there is anything in that argument.
If we take the argument far enough, are we not getting to a point in each different field where we must have different courts? We have had very broad distinctions for years but, within those very broad distinctions, judges have dealt with an infinite multiplicity of different kinds of cases and different points of law—I do not know whether the hon. and learned Gentleman wishes to intervene? I will give way to him if he so wishes?
All I was saying was "with varying degrees of success." But, putting the point seriously, I think that there have been other fields where people have thought that it would be of assistance to judges to have specialist panels for resolving certain issues rather than having to decide them themselves, as at the moment. I think, for example, of damages in personal injuries cases.
The Financial Secretary is talking about something different. The question of how the measure of damages should be decided, and whether it should be dealt with separately from the trial of liability, merely involves evolving a new machinery, if a better one can be found, within the existing framework. That does not alter the point I am making, which is that our courts—with a large measure of success—deal with a multiplicity of different issues of fact and different issues of law.
I commend to the Minister the proposition that it is sometimes a very good thing for a court to be dealing with a multiplicity of issues, because then it does not come to the subject with preconceived ideas. The purpose of the court and of the judge is to listen to the evidence directed to him, not for him to make up his mind on what he conceives from his own knowledge to be the facts.
There is not much, if indeed anything at all, in the first point made by the Financial Secretary, that these courts will have a special kind of expertise which will make them better able to deal with this kind of question. He said that the other difficulties postulated by my hon. and learned Friend could be overcome. I daresay they could. We could have some provision for payment of expenses of people going to hearings. Incidentlly, would the Financial Secretary say whether by "expenses" he means costs as well? Does "expenses" mean fares, or also the expense of paying a lawyer to plead a case? If it means only the former it is a very small concession. What will be needed by people who appeal from the Minister's decision, in many cases, will be very good advice and very good assistance.
In the county court all this exists without anyone doing anything further. There a person who cannot afford to pay for these things would simply get legal aid. The Financial Secretary said that there were not enough industrial courts and that their procedure was not suitable for dealing with a substantial number of queries, but why should the Minister make extra work for himself when all that is in existence already in the county courts and ready to be used? Let no one underestimate the importance of the number of courts which are available. These cases will involve oral hearings where they involve questions of fact.
In the county courts there are all the facilities and the court officials, and so on, available. If there is to be an appreciable amount of work for these courts, where will they sit and what sort of facilities will be provided for them? If there is not to be a appreciable amount of work why not distribute it through the county courts which are already there?
I emphasise the point made by my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) on the question of publicity. There should be publicity for two reasons. Many people will be interested in the decisions of the courts on appeals from the Minister. They will be interested because the decision on a particular case may be of assistance to them either in connection with a case they have themselves or to enable them to avoid running into difficulty in future. It is of interest and importance that decisions made in these cases should receive very wide publicity from the point of view of their usefulness.
It is also very important that they should receive wide publicity for another reason. If the Minister is making decisions from which citizens have a given right of appeal this fact should receive publicity as well. The Minister who is concerned at the moment may well think temporarily that if that is to happen the less publicity there is the better, but I am sure that the Minister is able to see the matter in its wider context. He will agree that it is important, when Ministers are given such very wide powers, as they are given by this Measure, that their actions and the appeals should be subject to close scrutiny and the course taken should be one which will best enable people to know what is going on. That can be done with the greatest ease by having these cases heard in the ordinary courts, because there they are under the closest scrutiny from newspapers and so on.
There are many other points relevant to this matter, but I shall not deal with any of them. I ask both Ministers to have another look at this question before we come to the next stage of the Bill because there is a very big precedent of principle involved. To say the least, the arguments are very far from being on one side only.
Perhaps in deference to the very thoughtful speeches made by hon. and learned Members opposite, I may be allowed to address the Committee on this matter again. The hon. and learned Member for Southport (Mr. Percival) asked why we should go to another tribunal for complicated answers when a simple answer is staring us in the face. I was led to wonder whether some non-lawyers would think that the simple answer would be obtained from a tribunal rather than from a court of law, but I will give a more serious answer.
On the question of publicity, it is the practice already for the decisions of these tribunals to be reported in the reports published by the Stationery Office. It is the intention of my right hon. Friend to continue that practice, because, clearly, it is of the greatest importance that decisions of these courts should be available to those concerned and that they should be widely reported.
Certainly, as the hon. and learned Member said, in the early stages there will be important decisions on principle and that will be done. There is another aspect of publicity. The hon. and learned Member made the point that in effect, whatever it is in form, this is a taxing Statute. I ask him to reflect upon our system for determining issues for the payer of ordinary Income Tax. There we have a special tribunal, the General Commissioners, who command great confidence and are qualified to look at practical problems which arise and to reach determinations on questions of fact which are final. Then there are appeals by case stated and other means on questions of law.
This is the analogy we are following. These tribunals have the power to sit in public, but their normal practice, in the exercise of their present jurisdiction, is to sit in private unless the person concerned—not the Minister but the other party—wishes the case to be heard in public. I am given to understand that that is the procedure which it is expected they would follow in exercising this jurisdiction.
Clearly, if the person concerned wants the publicity the case can be heard in public, but if it is a matter which does not affect the general public why should it have the glare of publicity? There is a natural reluctance for county courts to sit in camera and they would not do so in cases of this kind. That is how the argument works the other way. The procedure does not stop full publicity being given to a decision on a point of law.
On the question of legal issues in the early days, there is bound to be much publicity. Even if we made the county court the tribunal for this kind of court, these are the sort of issues which would be likely to be appealed on a point of law. The higher court would have to settle the point. That court would make the decision whichever way was chosen. One then thinks of other cases which do not raise crucial questions of law, most of which will be going into questions of fact and a good deal of figures; they will be cases which an ordinary judge would want to refer to a referee or to the registrar and will not want to be bothered with going into a mass of figures and the arithmetic that will arise.
The hon. and learned Gentleman drew a very interesting and in many ways fair analogy between commissioners concerned with tax matters and these tribunals, but there is one big difference. In most cases before commissioners, the commissioners are considering the personal tax affairs of citizens up and down the country which those citizens wish to be confidential. In these cases, on the other hand, they will be considering the possibility of the State withholding the repayment of tax which has already been paid, and, in a sense, there is no reason why the State should want the matter to be confidential.
I take the hon. Gentleman's point, and I do not want to press the analogy too far, but one may find in these inquiries that there is a degree of commercial confidentiality involved, such as the number of employees working on a particular process, which the employer may prefer not to have the glare of publicity.
Turning, finally, to the example quoted about the tunnel or bridge kind of case, I hope that we shall not have that issue to be decided any more, as a result of the Amendment to Clause 10(3) which is designed to obviate that sort of problem.
I think that I have said enough to answer the arguments. I can only end by assuring the Committee that we gave the most careful thought to the serious considerations which right hon. and hon. Gentlemen have raised, and we came to the conclusion that, looking at the whole matter, this was the better solution.
As most Members have made clear in the debate, it is very much a matter of impression. I can appreciate the force of the arguments which the Financial Secretary has made, though I do not agree with them. The tribunal system has worked well in those circumstances for which it was designed. The question is that, should a tribunal which was set up initially to decide levies under industrial training schemes be used to interpret a tax Statute. I am unhappy about how it will work in Scotland. The panel has only 32 members, 25 of whom are in Glasgow, five in Edinburgh and two in Inverness, and presumably the two in Inverness will be dealing with the whole of North Scotland. I do not see how it will work. However, we are anxious to get on with the Bill. The Guillotine will fall shortly and, for that reason, we will not vote on this Amendment.
I beg to move Amendment No. 97, page 9, line 35, leave out from "be" to end of line 37 and insert:
a debt due from the Crown which shall become payable on the expiration of three months from the date upon which the employer or the charity paid the selective employment tax in respect of which the claim is made and shall be recoverable from the Crown as a debt due from the Crown in accordance with the Crown Proceedings Act 1947".
It is fairly obvious that the object of the Amendment is to raise the right of a citizen to get back from the Government the money which the Government have taken from him under a compulsory loan, and to provide that the citizen shall have a right to get it back and shall not get it back simply at the discretion of the Minister.
At the moment, the Bill is one of the most remarkable that I have seen. When Parliament has said that the Government shall in certain circumstances pay money back to the citizen who has paid it, the concluding part of subsection (5) of Clause 7 reads:
and any such payments shall be made at such times, in such manner, and subject to such conditions, if any, as the Minister concerned may with the consent of the Treasury determine".
It is a monstrous provision that the Minister should have a discretion as to the time at which he is going to repay the money to which the citizen is entitled, that he should have a discretion as to the method of repayment, and that he should have a discretion to impose any conditions on the citizen when the citizen is simply getting his money back. It is an extraordinary provision and it is in line with the view that the whole Bill is designed for the general convenience of the Minister and to ignore the rights of citizens.
Why should the Minister have a discretion as to the time at which the citizen should get his money back? These are cases where the citizen was never intended to bear the tax, and he had to pay the extra stamp because it was the only administrative way in which the Government could get the money. Therefore, the situation with which we are dealing in all cases coming under Clauses 2, 5 and 6 are those where, the money having been collected, the citizen proves that he is within the special selected group who are entitled to a refund. Why should he not have it back after a sufficiently long administrative period to allow the Government to estimate his claim and repay it? If the Government take longer to meet the demand of the citizen who is entitled to it, why should he not be able to go to the courts and prove his case?
The second provision is that, at the discretion of the Minister, the method of repayment to the citizen shall be in the discretion of the Minister. Why should it be? Why should not the Government pay their debts, the same as everyone else, either in the legal tender of the realm or by such other method as the receiver may agree? Under this provision, presumably the Government could pay out refunds by Government Bonds or by giving pieces of paper that were not legal tender, and could employ any method which was wholly inconvenient to the citizen, by giving a cheque when he did not have a bank account, and doing other things which might suit the Government but might not suit the individual citizen.
Much worse is the idea that the Government should be able to impose conditions on the citizen who is getting his own money back when Parliament has said that he can have it. What conditions do Ministers envisage, and why should they have a power which is without limit in tying down the citizen to do all sorts of things as a condition of the repayments which we say are due to him?
It becomes very important in the payment of premiums. If one has a firm which is an industry or one is an employer coming within Clause 1 and will get a premium from the Government, the Government may want to tie up one's industry in all sorts of ways. They may want to impose conditions about exports, improvements to one's machinery, or about almost anything that the Government feel that they would like to order one to do but have not the power at present to do. The Bill proposes that the Government should have that power, and I cannot understand what justification there can be for a Measure drawn in this form.
By our Amendment, we propose that the citizen should be able to get his money back as a debt due from the Crown after three months has expired, which is the time that the Government would need to assess his claim, and that after three months the citizen should be entitled to get his money back if he is within the definitions of the Bill.
One ought to look at the way in which the Government deal with it when they want their money back. Clause 8 provides that the Government may have paid out money by a mistake of fact or law, and in subsection (5) the Bill provides:
where any sum is paid under this Act to any person not entitled thereto, that sum shall be recoverable as a debt due to the Crown.
I ask why, when the Crown is going to pay the money, should it not be treated as a debt due from the Crown in the same way? That is what we propose in the Amendment.
First, the effect is that they would require repayments to begin in the week of 5th December this year. This would be unacceptable, because the Government have made it clear that it is their intention that the tax should have some deflationary effect in the last quarter of this year and that the repayment should not begin till January, 1967. Payments will, in fact, begin on 5th September this year.
The Amendment would require the refunds or repayments to begin three months after the day on which they were paid. If they were paid weekly, there would have to be repayments every week. If the employer paid monthly, he would have to be repaid monthly. The administrative absurdity which would result does not need to be stressed. We want to work out something which would be administratively simpler and workable.
The intention is to introduce in the second quarter of 1967 a plan of staggering the quarterly claims. It is because the details of this cannot be worked out at this stage that this wide formula is required in subsection (5). Ordinarily the intention is that they will be made during the month following the quarter to which they relate. The effect of this is that under the staggered scheme the average wait for the employer will be two months only and not the three months provided for in the Amendment. What we propose to provide will be substantially better than what the Amendment requires.
|Division No. 151.]||AYES||[6.22 p.m.|
|Albu, Austen||Anderson, Donald||Beaney, Alan|
|Allaun, Frank (Salford, E.)||Atkins, Ronald (Preston, N.)||Bence, Cyril|
|Alldritt, Walter||Bacon, Rt. Hn. Alice||Bennett, James (G'gow, Bridgeton)|
|Allen, Scholefield||Bagier, Gordon A. T.||Bidwell, Sydney|
|Binns, John||Hamilton, James (Bothwetl)||Oram, Albert E.|
|Bishop, E. S.||Hamilton, William (Fife, W.)||Orme, Stanley|
|Blackburn, F.||Hamling, William||Oswald, Thomas|
|Blenkinsop, Arthur||Hannan, William||Owen, Will (Morpeth)|
|Booth, Albert||Harper, Joseph||Page, Derek (King's Lynn)|
|Boston, Terence||Harrison, Walter (Wakefield)||Paget, R. T.|
|Bowden, Rt. Hn. Herbert||Haseldine, Norman||Palmer, Arthur|
|Boyden, James||Hazell, Bert||Pannell, Rt. Hn. Charles|
|Braddock, Mrs. E. M,||Henig, Stanley||Park, Trevor|
|Bradley, Tom||Herbison, Rt. Hn. Margaret||Parkyn, Brian (Bedford)|
|Bray, Dr. Jeremy||Hooley, Frank||Pearson, Arthur (Pontypridd)|
|Brown, Rt. Hn. George (Belper)||Horner, John||Peart, Rt. Hn. Fred|
|Brown, R. W. (Shoreditch & F'bury)||Houghton, Rt. Hn. Douglas||Pentland, Norman|
|Buchan, Norman||Howarth, Harry (Wellingborough)||Perry, Ernest G. (Battersea, S.)|
|Butler, Herbert (Hackney, C.)||Howarth, Robert (Bolton, E.)||Price, Christopher (Perry Barr)|
|Callaghan, Rt. Hn. James||Howell, Denis (Small Heath)||Price, Thomas (Westhoughton)|
|Carmichael, Neil||Howie, W.||Price, William (Rugby)|
|Chapman, Donald||Hoy, James||Pursey, Cmdr. Harry|
|Coe, Denis||Hughes, Emrys (Ayrshire, S.)||Redhead, Edward|
|Concannon, J. D.||Hughes, Hector (Aberdeen, N.)||Rees, Meriyn|
|Corbet, Mrs. Freda||Hughes, Roy (Newport)||Richard, Ivor|
|Craddock, George (Bradford, S.)||Hunter, Adam||Roberts, Albert (Normanton)|
|Cullen, Mrs. Alice||Hynd, John||Roberts, Gwilym (Bedfordshire, S.)|
|Dalyell, Tam||Irvine, A. J. (Edge Hill)||Roebuck, Roy|
|Darling, Rt. Hn. George||Jackson, Colin (B'h'se & Spenb'gh)||Rose, Paul|
|Davies, Dr. Ernest (Stretford)||Jackson, Peter M. (High Peak)||Ross, Rt. Hn. William|
|Davies, Harold (Leek)||Jeger, George (Goole)||Ryan, John|
|Davies, Robert (Cambridge)||Jeger, Mrs. Lcna (H'b'n&St. P'cras. S.)||Sheidon, Robert|
|de Freitas, Sir Geoffrey||Jenkins, Hugh (Putney)||Shinwell, Rt. Hn. E.|
|Delargy, Hugh||Jenkins, Rt. Hn. Roy (Stechford)||Short, Mrs. Renée (W'hampton, N. E.)|
|Dell, Edmund||Johnson, Carol (Lewisham, S.)||Silkin, Rt. Hn. John (Deptford)|
|Diamond, Rt. Hn. John||Jones, Dan (Burnley)||Silkin, S. C. (Dulwich)|
|Dickens, James||Jones, J. Idwal (Wrexham)||Silverman, Julius (Aston)|
|Dobson, Ray||Judd, Frank||Silverman, Sydney (Nelson)|
|Doig, Peter||Kelley, Richard||Slater, Joseph|
|Donnelly, Desmond||Kenyon, Clifford||Small, William|
|Dunn, James A.||Kerr, Russell (Feltham)||Spriggs, Leslie|
|Dunnett, Jack||Lawson, George||Steele, Thomas (Dunbartonshire, W.)|
|Dunwoody, Mrs. Cwyneth (Exeter)||Leadbitter, Ted||Stonehouse, John|
|Eadie, Alex||Ledger, Ron||Symonds, J. B.|
|Ellis, John||Lestor, Miss Joan||Thomas, George (Cardiff, W.)|
|English, Michael||Lever, Harold (Cheetham)||Tinn, James|
|Ennals, David||Lewis, Ron (Carlisle)||Tomney, Frank|
|Evans, Albert (Islington, S. W.)||Lomas, Kenneth||Tuck, Raphael|
|Fernyhough, E.||Luard, Evan||Urwin, T. W.|
|Finch, Harold||McBride, Neil||Varley, Eric G.|
|Fletcher, Raymond (Ilkeston)||McCann, John||Wainwright, Edwin (Dearne Valley)|
|Fletcher, Ted (Darlington)||MacDermot, Niall||Walker, Harold (Doncaster)|
|Floud, Bernard||McGuire, Michael||Wallace, George|
|Foley, Maurice||Mackie, John||Watkins, David (Consett)|
|Foot, Michael (Ebbw Vale)||Mackintosh, John P.||Weitzman, David|
|Ford, Ben||Maclennan, Robert||Wellbeloved, James|
|Forrester, John||MacPherson, Malcolm||Wells, William (Walsall, N.)|
|Fraser, John (Norwood)||Mahon, Peter (Preston, S.)||Whitaker, Bon|
|Fraser, Rt. Hn. Tom (Hamilton)||Manuel, Archie||Whitlock, William|
|Freeson, Reginald||Mapp, Charles||Williams, Alan (Swansea, W.)|
|Galpern, Sir Myer||Mason, Roy||Williams, Alan Lee (Hornchurch)|
|Gardner, A. J.||Mayhew, Christopher||Williams, Mrs. Shirley (Hitchin)|
|Garrett, W. E.||Mendelson, J. J.||Williams, W. T. (Warrington)|
|Garrow, Alex||Miller, Dr. M. S.||Willis, George (Edinburgh, E.)|
|Ginsburg, David||Mitchell, R. C. (S'th'pton, Test)||Wilson, William (Coventry, S.)|
|Gordon, Walker, Rt. Hn. P. C.||Molloy, William||Winterbottom, R. E.|
|Gourlay, Harry||Morris, Charles R. (Openshaw)||Woodburn, Rt. Hn. A.|
|Gray, Dr. Hugh (Yarmouth)||Moyle, Roland||Woof, Robert|
|Gregory, Arnold||Murray, Albert||Wyatt, Woodrow|
|Grey, Charles (Durham)||Newens, Stan||Yates, Victor|
|Griffiths, David (Rother Valley)||Noel-Baker, Francis (Swindon)|
|Griffiths, Rt. Hn. James (Llanelly)||Norwood, Christopher||TELLERS FOR THE AYES:|
|Griffiths, Will (Exchange)||Ogden, Eric||Mr. Alan Fitch and|
|Gunter, Rt. Hn. R. J.||O'Malley, Brian||Mr. Ioan L. Evans.|
|Alison, Michael (Barkston Ash)||Bromley-Davenport, Lt. Col. Sir Walter||Corfield, F. V.|
|Allason, James (Hemel Hempstead)||Brown, Sir Edward (Bath)||Costain, A. P.|
|Astor, John||Bruce-Gardyne, J.||Craddock, Sir Beresford (Spelthorne)|
|Balniel, Lord||Buchanan-Smith, Alick (Angus, N&M)||Crowder, F. P.|
|Batsford, Brian||Buck, Antony (Colchester)||Cunningham, Sir Knox|
|Beamish, Col. Sir Tufton||Bullus, Sir Eric||Dance, James|
|Bessell, Peter||Carlisle, Mark||Davidson, James (Aberdeenshire, W.)|
|Body, Richard||Carr, Rt. Hn. Robert||d'Avigdor-Goldsmid, Sir Henry|
|Boyd-Carpenter, Rt. Hn. John||Cary, Sir Robert||Dean, Paul (Somerset, N.)|
|Boyle, Rt. Hn. Sir Edward||Chichester-Clark, R.||Deedes, Rt. Hn. W. F. (Ashford)|
|Brinton, Sir Tatton||Cooper-Key, Sir Neill||Dodds-Parker, Douglas|
|Doughty, Charles||Lambton, Viscount||Prior, J. M. L.|
|Eden, Sir John||Langford-Holt, Sir John||Quennell, Miss J. M.|
|Elliot, Capt. Walter (Carshalton)||Legge-Bourke, Sir Harry||Ramsden, Rt. Hn. James|
|Elliott, R. W.(N'c'tle-upon-Tyne, N.)||Lewis, Kenneth (Rutland)||Rawlinson, Rt. Hn. Sir Peter|
|Eyre, Reginald||Lloyd, Ian (P'tsm'th, Langstone)||Rees-Davies, W. R.|
|Fletcher-Cooke, Charles||Lloyd, Rt. Hn. Selwyn (Wirral)||Renton, Rt. Hn. Sir David|
|Gilmour, Sir John (Fife, E.)||Longden, Gilbert||Ridley, Hn. Nicholas|
|Glover, Sir Douglas||Lubbock, Eric||Ridsdale, Julian|
|Goodhew, Victor||McAdden, Sir Stephen||Rossi, Hugh (Hornsey)|
|Gower, Raymond||MacArthur, Ian||Royle, Anthony|
|Grant, Anthony||Mackenzie, Alasdair (Ross&Crom'ty)||Scott, Nicholas|
|Gresham Cooke, R.||Maclean, Sir Fitzroy||Sharples, Richard|
|Griffiths, Eldon (Bury St. Edmunds)||Macleod, Rt. Hn. Iain||Sinclair, Sir George|
|Grimond, Rt. Hn. J.||McMaster, Stanley||Steel, David (Roxburgh)|
|Gurden, Harold||Macmillan. Maurice (Farnham)||Summers, Sir Spencer|
|Hall, John (Wycombe)||Maddan, Martin||Taylor, Sir Charles (Eastbourne)|
|Harris, Frederic (Croydon, N. W.)||Marten, Neil||Taylor, Frank (Moss Side)|
|Harris, Reader (Heston)||Mathew, Robert||Temple, John M.|
|Harrison, Brian (Maldon)||Maude, Angus||Thatcher, Mrs. Margaret|
|Harrison, Col. Sir Harwood (Eye)||Maudling, Rt. Hn. Reginald||Thorpe, Jeremy|
|Harvey, Sir Arthur Vere||Mawby, Ray||Tilney, John|
|Hawkins, Paul||Maxwell-Hyslop, R. J.||Turton, Rt. Hn. R. H.|
|Heald, Rt. Hn. Sir Lionel||Maydon, Lt.-Cmdr. S. L. C.||van Straubenzee, W. R.|
|Heath, Rt. Hn. Edward||Mills, Peter (Torrington)||Vickers, Dame Joan|
|Heseltine, Michael||Mitchell, David (Basingstoke)||Walker, Peter (Worcester)|
|Hill, J. E. B.||Munro-Lucas-Tooth, Sir Hugh||Walker-Smith, Rt. Hn. Sir Derek|
|Hobson, Rt. Hn. Sir John||Nabarro, Sir Gerald||Ward, Dame Irene|
|Hogg, Rt. Hn. Quintin||Neave, Alrey||Weatherill, Bernard|
|Holland, Philip||Noble, Rt. Hn. Michael||Webster, David|
|Hooson, Emlyn||Nott, John||Wells, John (Maidstone)|
|Hordern, Peter||Onslow, Cranley||Whitelaw, William|
|Hornby, Richard||Orr, Capt. L. P. S.||Wills, Sir Gerald (Bridgwater)|
|Howell, David (Guildford)||Osborn, John (Hallam)||Wilson, Geoffrey (Truro)|
|Hutchison, Michael Clark||Osborne, Sir Cyril (Louth)||Winstanley, Dr. M. P.|
|Irvine, Bryant Godman (Rye)||Page, John (Harrow, W.)||Wolrige-Gordon, Patrick|
|Jenkin, Patrick (Woodford)||Pardoe, John||Woodnutt, Mark|
|Jennings, J. C. (Burton)||Peel, John||Worsley, Marcus|
|Kershaw, Anthony||Percival, Ian||Wylie, N. R.|
|Kimball, Marcus||Pike, Mervyn||Younger, Hn. George|
|Kirk, Peter||Pounder, Rafton|
|Kitson, Timothy||Powell, Rt. Hn. J. Enoch||TELLERS FOR THE NOES|
|Knight, Mrs. Jill||Price, David (Eastleigh)||Mr. Francis Pym and|
|Mr. Peter Blaker.|
It being after twenty-two minutes past Six o'clock (the House having resolved itself into the Committee at eight minutes to Four o'clock), The CHAIRMAN proceeded, pursuant to Order [18th July], to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour, including the Questions on Amendments, moved by a member of the Government, of which notice had been given.