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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,
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.
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."
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. 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:
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:
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 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:
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
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.