Clause 3.—(NOMINATION OF JUDGES AS MEMBERS OF COURT.) (Hansard, 12 April 1956)

§ Mr. A. J. Irvine
I beg to move, in page 3, line 17, to leave out from "court" to the end of line 19.
The words which would be deleted if this Amendment was accepted are and shall be required to perform his duties as a judge of that court only when his attendance on the Restrictive Practices Court is not required. The motive behind those words is probably an admirable one. The purpose, I gather, is to speed up the proceedings of the Restrictive Practices Court, but it strikes me as rather extraordinary that there should be this mandatory intrusion into the allocation of work to judges.
I should have thought the matter was much better left to the discretion of those responsible for arranging the lists. Sometimes it might be inconvenient if a technical statutory offence was to be committed when a judge deferred his attendance upon the proceedings of the Restrictive Practices Court for a short period whilst he delivered judgment at the end of a long case outside that Court. The normal practice we might expect would be for the judges nominated under the Bill to be allocated to the business of the Restrictive Practices Court. It seems to me much better to leave the matter to the proven discretion of those authorities who are in charge of the lists.

§ Mr. David Weitzman (Stoke Newington and Hackney, North)
I should like to support the Amendment moved by my hon. Friend the Member for Edge Hill (Mr. A. J. Irvine), and to ask what the words he wishes to delete mean. The word to be left out are: and shall be required to perform his duties as a judge of that court only when his attendance on the Restrictive Practices Court is not required. If his attendance is required in the Restrictive Practices Court, he cannot attend to any other work, so what is the meaning of those words? From the point of view of common sense, the Bill ought not to go forward with these words in as an example of how we write a Bill in the English language.

§ Mr. Walker-Smith
I am rather surprised at the line of criticism developed in regard to this provision, because the Committee listened for the whole of 498 yesterday, and has been listening for a large part of today, to apprehensions and fears expressed by right hon. and hon. Gentlemen opposite that this procedure would not ensure fast enough progress with the work of adjudicating upon restrictive trade practices.
The object of this subsection is to see that the judges who are assigned to the Restrictive Practices Court have a clear priority of duty in regard to the sittings of that Court, and for that reason it is a provision which helps to ensure that there will be as speedy and effective adjudication upon these cases as possible. I think that it is a little inconsistent that the hon and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) should now wish to delete the words which ensure that, and I hope that on consideration of that point of view hon. Members opposite will not wish to proceed further with the Amendment.

§ Mr. Weitzman
May I have an answer to my question: how can judges be required to perform duties in another court if they are in attendance on the Restrictive Practices Court?

§ Mr. Walker-Smith
The words, if the hon. and learned Gentleman will read to the end of the sentence, are: ߪ only when his attendance on the Restrictive Practices Court is not required. That means that a judge cannot be assigned, for example, to duties in the Chancery Division or the Queen's Bench Division when he is required by the President of this Court to sit on the Restrictive Practices Court.

§ Mr. Hector Hughes
I wonder whether the Minister remembers the dictum of a very distinguished Member of this House over a hundred years ago, Sir Boyle Roche, who said, No man can be in two places at once barrin' he's a bird.

§ Mr. Michael Stewart (Fulham)
I shall be glad if the right hon. Gentleman will help to clear up another ambiguity in the wording of this Clause. It says that the judge shall be required to perform the duties of the court of which he is a member … only when his attendance on the Restrictive Practices Court is not required. I think that would mean that if his attendance in the Restrictive Practices Court is required, it cannot be suggested 499 that it is at that time his duty to sit in another court. That, I think, is clear. But suppose, as was suggested by my hon. Friend the Member for Edge Hill (Mr. A. J. Irvine), that the judge himself desires and believes it to be in the general interest of the conduct of his judicial duties to dispose of a particular piece of business in the court of which he is a member at a particular time, and gives that priority over a sitting of the Restrictive Practices Court, how does the subsection apply to him then? It states that he shall be required to perform his duties as a judge of that court only when his attendance on the Restrictive Practices Court is not required. Are we to understand the first "required" to mean, in effect, that an obligation is imposed on him that he is not to perform his duty as a judge of the court of which he is a member if the Restrictive Practices Court is sitting? Or does it mean only that he cannot be compelled to perform his duty in the court of which he is a member when the Restrictive Practices Court is sitting? Has the judge himself any discretion in the matter? Granted that he cannot be told, "You must go and sit in the Court of Session today", can he say, "But I want to sit in the Court of Session today"? Can he do that without contravention of this subsection?
Perhaps I can illustrate the point by reference to a notice which used to hang in the Library at the Oxford Union when the hon. and learned Gentleman and I were members, and which read, "No smoking allowed". One member who was smoking in the room contended that the notice meant that refraining from smoking was permitted in that room; that one could refrain from smoking, but that the notice did not prohibit smoking. It seems to me that exactly the same point of view arises in this connection. Here, it hangs on the degree of emphasis that we are to give to the word "required".
If "required" means that he is obliged to perform his duties in the court to which he belongs only when the Restrictive Practices Court is not sitting, the judge himself has no discretion in the matter. But if it means that the judge cannot be required, in the sense of being obligated to perform his duty in the particular 500 court of which he is a member when the Restrictive Practices Court is sitting, that means that he is left with some discretion in the matter.
As a layman, I shall be interested to take part in the passing of a Clause which gives orders to a judge. That is a sensation which I think that most Members of the public would like to share. But I confess that I am rather ignorant of how one gives orders to judges, and since the judges will, presumably, interpret this subsection themselves, it might at least provide us with some guidance if the hon. Gentleman could clear up that somewhat complicated point.

§ Mr. Walker-Smith
The hon. Gentleman recalls the days when he and I and the hon. Member for Edge Hill (Mr. A. J. Irvine), who moved the Amendment, were at the Oxford Union together. I know that the hon. Member will not misunderstand me when I say that his speech was perhaps a little more appropriate to the proceedings which we used to have there than to the Committee stage of this Bill in the House of Commons—and perhaps none the worse for that. I think I may deal very shortly with his point. If he wishes to spell out the niceties of language, I think it would be right to regard the first "required" in the sense of "obliged" and the second "required" in the sense of "needed." The short point is that the Restrictive Practices Court has the first claim on a judge's attendance and in that respect he has not a discretion.

§ Mr. A. J. Irvine
Not because I am persuaded by the observations of the Parliamentary Secretary, but for other reasons which seem good to me, I beg to ask leave to withdraw the Amendment.