I move amendment No. 1:
In page 2, after line 27, to insert a paragraph as follows:
"(b) The Principal Act shall be regarded as always having included the words added by paragraph (a) hereof; and".
The purpose of this amendment is to rectify retrospectively the position which had existed from the passing of the 1945 Act up to such time as this Bill is passed, in which there appears to have been a different statutory provision in relation to the deduction of levies from what was the actual position in practice in relation to the deduction of the levy. Subsection (1) of section 27 of the Principal Act of 1945 simply read:
Every person who, is a licensed bookmaker, enters into a course bet on or after the commencement of this section shall pay to the Board a levy calculated at the rate of the prescribed percentage for the time being of the amount of such course bet.
That was the end of the subsection. The clear meaning of that is—and I do not think it is in dispute—that the amount of levy payable to the board on that winning bet and, therefore, the amount that could be deducted by the bookmaker was 5 per cent of the stake wagered in relation to that bet.
The practice has been for a good many years past and possibly since 1945 for bookmakers, when paying a winning bet, to deduct the levy from the total of the stake which is being returned to the winner. The purpose of paragraph (a) of section 3 of this Bill is to regularise that position. If it did not need regularising and putting into statutory form, there would have been no need for paragraph (a) of section 3. There is a need and that is why it is there. What I am pointing out to the Taoiseach is that this paragraph (a) and the addition of these words to allow for the deduction of the levy from the total returned to the punter will regularise the position as, and from the coming into force of this Bill when it is enacted, but it will do nothing to regularise the position that has existed, apparently improperly as far as the statute is concerned, between 1945 and the passing of this Bill, because it has been, as I said, the invariable practice for a bookmaker to deduct 5 per cent of the total return to the winning punter. It seems to me that there was no statutory authority for that, even though it was a universal practice.
If there was no statutory authority for it, it seems to me that the punter would be entitled now to seek back from the bookmaker in the case of every winning bet the difference between the total amount of levy deducted and the amount of levy that would have been appropriate to the stake only. That would run into millions of pounds over a 30-year period. I do not think it is feasible or possible that that money could, in fact, be recovered now at this stage. That is why I have put down this amendment to cover that kind of situation, which would be simply to the effect that the principal Act shall be regarded as always having included the words added by paragraph (a) hereof which are the words to the effect that the levy is payable on the total amount of the stake and the winnings.
I presume that, even though a punter would be entitled under the statute to demand back the excess levy which was deducted from him by the bookmaker because the whole transaction is founded on a bet, which is an illegal and void contract anyway, no court, one imagines, would seek to indirectly enforce a bet, which is, what an action for the recovery of excess levy might be construed by a court as amounting to.
Nonetheless there is a situation which is quite anomalous. That it is anomalous is proved by the fact that it was found necessary in this Bill to add the words contained in paragraph (a) of section 3. If the situation had been that the previous practice was in order and in accordance with statute, there would have been no need to add the words which are here. By adding the words that are here and not making it retrospective, this House would, in effect, be saying: "Something improper and illegal took place for 30 years but we are not doing anything about it. We are just rectifying it as and from now for the future." In the case of very substantial bets the amount of the levy would be considerable, particularly in respect of a horse which was backed at generous odds, for example a winner at 50-1 or 100-1. The stake would be very small but the winnings would be very large and the combination of the winnings and stake would be very large. If somebody put £100 on a horse at 100-1—I know it does not happen very often on an Irish racecourse—the winnings would be £10,000. The practice hitherto has been to deduct the levy at 5 per cent on the total returnable to the punter which would in this case be £10,100. Five per cent of that is a very substantial amount of money—it is over £500— whereas by statute the entitlement of the bookmaker and the right of the punter was that the 5 per cent could have been deducted on the stake only, which was a £5 levy. The difference, therefore, in this example that I have given is a sum of £500, which is a considerable amount of money by anyone's standards.
It may well be that some punters will consider taking legal action or attempting to take legal action in these circumstances when they become aware of the fact that this section 3 (a) rectifies what is now wrong. In the example I have given the bookmaker is compelled to deduct levy amounting to £505 rather than £5 which is a bookmaker's only entitlement at the moment. It is a serious matter.
I adverted to it on Second Stage and the Taoiseach replied to the effect that he read out an extract from a document which the bookmaker signs for the Racing Board at the time that he is being given a permit. In the document there was an undertaking on the part of the bookmaker, as a consideration for his getting the permit, that he would deduct, not just on the stake but on the total returnable to the punter, a 5 per cent levy. This may well regularise the position as between the bookmaker and the Racing Board. It does not regularise the position as between the bookmaker and the punter who in the example I have given is still entitled under statute at least to claim the £500 excess levy back from the bookmaker which the bookmaker deducted from him. I am not to be taken as suggesting that the bookmaker, in deducting levy in accordance with what has always been the normal practice, acted improperly or that he did not return it to the Racing Board. I am quite satisfied that he did and that he was only doing it in accordance with his signed undertaking with the board on the obtaining of his permit.
Nonetheless, as between the bookmaker and the punter there was an over-deduction in the example I gave of £500. The only bar there might be legally—and I am not certain that it would be a total bar if this amendment is not accepted—to the punter suing for the recovery of the £500 excess levy in that instance would be a possibility that the court would hold that the action was basically founded on a bet which, as the House well knows, is totally illegal so far as the civil law is concerned. It is void and unenforceable, out of which, in the view of the court under our general law of contract, no rights of any description could accrue, and the court would possibly take the view that if someone wants to enter into an illegal contract with the bookmaker or anyone else, he cannot then seek to have rights enforced for him arising incidentally out of what is fundamentally illegal; when I say "illegal" here, I do not want to be accused of saying that it is against the criminal law or anything like that, but the Taoiseach understands I mean "illegal" in the technical contractual sense, not in the general popular sense to the extent of avoidance or unenforceability. It is more than just unenforceable because its side transactions are tainted by the original illegality of the act in entering into the bet. For that reason there is certainly the possibility that a punter taking action would not succeed. That is not the only reason he would not succeed.
On statute, under these two Acts, the 1945 Act and this Bill, on the face of it he has to win because it is proved beyond doubt by virtue of the necessity to put in section 3 (a) into this Bill to amend section 27 (1) of the 1945 Act that the position that had existed from 1945 up to the present has not been in accordance with statute.
The purpose of this amendment is to rectify that situation—to prevent or save actions being taken founded on bets. Where it was generally known and well-known to be the invariable practice that a bookmaker deducted levy on the winning stake, it would be unfair that anyone should seek to take an action in those circumstances. The situation will be rectified by section 3 (a) when this Bill is passed because what is recognised by section 3 (a) as the invariable practice has been the invariable practice since 1945. It is only right and proper that the intervening period of 30 years should equally be regulated by section 3 (a) in the same way as that proposes to regulate the position in the future.