---

10 pm

Under subsection (3), the appeal is allowed if the notice requiring the review is given before the end of the period of 45 days--again, so far, so good. The grounds for appeal are set out in subsection (5). The facts to be considered by the commissioners have to be new facts. The ground cannot be gone over again--again, so far, so good.

At that point, having considered the new facts, the commissioners can withdraw, vary or confirm the decision that has been reviewed. This is where the clause comes unstuck. When they have reviewed their decision, they may decide to withdraw, vary or confirm it. If they do not, within the period of 45 days beginning with the day on which the review was required, give notice to the person requiring it of their determination,

"they shall be deemed to have confirmed the decision."

Therefore, a chap appeals, he produces new facts and if, after 45 days, nothing is said, that is it. He is not informed. He is not told whether there has been an error or whether something has been missed out. If no one tells him anything, the original decision is confirmed.

It is clear what has gone on. The Minister has a busy life. He has an extensive Bill. I think that he has done pretty well tonight in dealing with all the points that have been raised, but he may have missed this point. The provision is designed to cover some official who perhaps fails to notify the person of the decision of the commissioners that the original decision stands. It does not deal with the point that there may be an error, that the commissioners may decide to vary their original decision and that, if someone forgot to tell the chap, that effect would be negatived because they would be deemed to have confirmed the original decision. The amendment changes the word "confirmed" to "revoked" to deal with that situation.

I draw the Minister's attention to the front cover of the Bill, which says,

"European Convention On Human Rights


Mr Chancellor of the Exchequer has made the following statement under section 19(1)(a) of the Human Rights Act 1998:


In my view the provisions of the Finance Bill are compatible with the Convention rights."

The Chancellor is a busy chap. I suspect that he has not spotted that particular line because, if ever there was a blatant breach of the European convention on human rights, this is it.

23 Apr 2001 : Column 112

If I, any of my colleagues or Labour Members were to raise a point of order with you, Sir Alan, they would expect you to respond. They would not expect you just to sit there, thinking that, if you said nothing, it should be assumed that your original decision stood. They would want a response. Anyone who has an appeal wants to hear what the outcome of the review is.

This is a flagrant breach of natural justice. It involves not only the European convention on human rights, but principles of natural justice going back to the origins of the British legal system. People are entitled to an explanation of the reasons given by the commissioners.

Mr. Michael Jack (Fylde): Will my hon. Friend comment on clause 40(4), which states:

"it shall be the duty of the Commissioners to give written notification of any decision to which this section applies to any person"?

Does my hon. Friend think that that in any way contradicts the argument that is being advanced?

Mr. Ottaway: My right hon. Friend has picked up an important point. What's good for the goose should be good for the gander; if there is written notification in subsection (4), why can we not have it in subsection (8)? That is the inconsistency, and I am pretty sure that there has been an error.

There are two strands of thinking. The first is whether this is a breach of the European convention on human rights; the second is whether it is a breach of a long line of judicial review cases that oblige authorities to give reasons. It is right that I should explore both avenues.

Article 6 of the European convention provides anybody with the right to a fair trial. The convention refers to a criminal case, whereas what we are discussing does not, although someone who does not pay the right levy will be a criminal. None the less, article 6(1), which refers to civil rights--it is not just a question of criminal cases--states:

"everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly".

That article, which has been incorporated by the Government into English jurisdiction, sets out in some detail the circumstances in which that should happen.

The Financial Secretary has to say why everybody else is entitled to have a public judgment but, under the aggregates levy, there is no right to public judgment. The learned work "Human rights Law and Practices", edited by Lord Lester and David Pannick--two distinguished authors--sets out the criteria for a reasoned judgment, stating:

"It is a requirement of a fair trial in both civil and criminal matters that a court should give reasons for its judgment.


For recent consideration of the duty to give reasons both at common law and under the Convention see Stefan v. General Medical Council . . . where the Privy Council referred to 'the possible reappraisal of the whole position (in relation to the duty to give reasons) which the passing of the Human Rights Act 1988 may bring about', and commented that the provisions of article 6 'will require closer attention to be paid to the duty to give reasons, at least in relation to those cases where a person's civil rights and obligations are being determined'."

I do not think that we could have a clearer exposition of what is the law and why the proposal is in breach of it.

23 Apr 2001 : Column 113

The book states:

"The extent of the duty to give reasons may vary according to the nature of the decision"

and sets out a number of cases, such as Ruiz Torija v. Spain and Georgiadis v. Greece. This concerned a

"violation where court found applicant guilty of 'gross negligence' without particularising matters said to constitute such negligence."

The book also refers to a series of cases that set out the need for a reasoned judgment.

That is not the only work that supports my argument. "A Practitioner's Guide to the European Convention on Human Rights" by Karen Reid states:

"Article 6, paragraph 1 has been interpreted as obliging courts to give reasons for their decisions though this does not require a detailed answer to every question."

So the courts do not have to go into great detail, but an answer is required. The guide continues:

"The Convention organs' resistance to constituting a fourth instance leaves in practice little scope for attacking the adequacy of the reasons given in judgments. There has been no development under Article 6 as in the context of Article 8, 9 and 10 that decisions must necessarily be supported by relevant and sufficient reasons."

No mention is made of the argument that there is no need to give reasons, although the commissioners could note that there is no requirement for the reasons given to be sufficient.

The guide continues:

"Lack of reasons in a decision was taken as an aspect of procedural safeguards . . . In that case, the Bar Council's procedure was open to criticism in two respects: lack of public hearing and the lack of precision in rules or case law as to the meaning of the 'exceptional circumstances' condition required for reinstatement to the Bar."

It went on to criticise the Bar Council for not giving its reasons.

I hope that the Committee takes my point that the case law on the issue is well established. On the issue of reasoned judgment, the work "Human Rights and the Courts: Bringing Justice Home", which has a foreword by Lord Irvine of Lairg, the Lord Chancellor, no less, states:

"Article 6(1) provides a general obligation on courts to give reasons for their judgements. This is so that, in the spirit of a fair trial, both the defendant and the public at large may know the basis of the decision."

There is a clear body of case law and authorities that suggest that the commissioners are obliged to give their reasons and that their judgment should be pronounced publicly.

The reason for such requirements is to curb the power of the state. It is not acceptable for commissioners to be able to hear an appeal and say not a word. They are obliged to say something of their reasons and must not act with impunity or indiscriminately. Individuals' rights must be clear. If the Government cannot accept the amendment, I hope that they will give it serious consideration. Today, we have discussed many issues of varying importance, but this issue is important and the Minister should give it due consideration--as he usually does.

Mr. Edward Davey: I rise briefly to support the amendments. The hon. Member for Croydon, South (Mr. Ottaway) made a powerful speech, including long and detailed references to human rights legislation and commentators thereon. My point supports the substance

23 Apr 2001 : Column 114

of his argument more prosaically, because clause 40 reveals--yet again--how the Government always try to tilt the balance of tax legislation in favour of the state and against the taxpayer.

In clause 40(3), for example, the taxpayer has only 45 days to request a review. If a taxpayer misses that date, the right of appeal is gone. However, if the commissioners miss the 45-day deadline, it does not matter, and their original decision is deemed to have been upheld. The imbalance is obvious: a requirement is placed on the taxpayer, but no such requirement is placed on the commissioners. That is unjustified. It gives the commissioners an incentive for lethargy, but they ought to be required by legislation to act competently.

---