§ 3.39 p.m.
Amendment made: In page 3, line 36, leave out "this section" and insert:
the foregoing subsection."—[Mr. P. Thorneycroft.]
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
I beg to move, in page 3, line 38, to leave out "three" and to insert "five".
The purpose of this Amendment is to enlarge the minimum period during which a member of the Court, other than the judge, will hold office. On this side of the Committee we regard the period of three years as being a good deal too short a minimum period. We recognise that it is, of course, expressed to be a minimum only, and we appreciate that the intention of the Government may be that these appointments will be made generally for a substantially longer period.
We believe that three years is too short a minimum period, and that this reflects upon a matter to which we attach great importance, namely, the status of the Court. Further, it is likely to have an adverse effect upon the prospect of getting the best men to serve in these appointments, with all the very onerous and important duties attaching to them.
If the Bill is passed into law, the Court will be a court of record, a court of high standing, a court possessing an official seal; it will not be a minor tribunal. If the Government's intentions are carried out, the Court will have a very important part to play in the judiciary of this country. In England, three members of it are going to be High Court judges. We on this side of the Committee are determined as we would expect hon. Members on the other side likewise to be determined—that once this Court is constituted its status shall be above all reproach and shall be properly protected and safeguarded. As I am sure the Government will agree, it must be an authoritative body and above all possible allegations of bias.
1977 We believe that a minimum period of three years for lay members' membership of the Court is quite insufficient, because if this provision becomes law it will become quite possible for men selected from industry, commerce and trade to sit upon this Court, with their lay member colleagues and a judge, for a period of three years, during that period, for all one knows, overruling the judge upon questions of fact, and then, at the end of so short a period, be able to go back into public affairs, commerce and industry, experience in which is regarded as having qualified them originally for the appointment.
We believe that to be undesirable. After three years' membership of a court of this kind, a layman may have had sufficient experience of trade, industry, or public affairs, but he will not have had a sufficient experience of the Restrictive Practices Court.
I am fortified in this argument, I believe, by observations which fell from the lips of the Parliamentary Secretary on the occasion when the Committee last deliberated upon the Bill. He said:Indeed, it was always supposed that maturity of years and reflective disposition were an aid to the exercise of the judicial function.I must be pardoned for expressing my liking for that phrase; it is an agreeable phrase and all the more agreeable for expressing a truth. In all seriousness, I feel that one is much more likely to get the reflective disposition which the Government so rightly regard as desirable in any member of the judiciary if a man has a reasonably long period of office. A period of three years, especially in the case of a man who perhaps up to this point has never had any experience in any way of the judicial function is not a long enough time in which he can reasonably be expected to acquire the reflective disposition which the Parliamentary Secretary, in my view so rightly, indicated as desirable.
Again, quite rightly, if I may say so, the Parliamentary Secretary said on the last occasion that very great importance attached to the members of the Court being able to bring to the problems which confront them a proper objectivity. It is all-important that they should be able to bring to these problems objectivity, 1978 detachment and a judicial frame of mind, The Parliamentary Secretary said, also:It was obviously undesirable that anybody should be appointed who was engaged in industry or commerce in such a way as to prejudice his objectivity over these matters."—[OFFICIAL REPORT, 12th April, 1956; 551, c. 504 and 505.]3.45 p.m.
We on this side of the Committee take the view that if members of the Court are to be appointed for three years as a minimum period, it will be very difficult for them to achieve the degree of objectivity which is so obviously desirable. If the minimum period is as short as that, it will be possible for a leader in industry or trade to leave his business or company and serve for this short period as a member of the Court, having, at the same time, an arrangement with his company—which would be a perfectly legitimate and natural arrangement—that after this short tour of duty has been performed he will return to it and there resume the same activities in commerce and trade in which he engaged before.
To do such a thing should be quite inconsistent with his achieving the desired degree of objectivity. Quite plainly, as I suggest, on that hypothesis, he may well be a party to arriving at decisions upon issues coming before the Court which will very materially affect the business and trade with which he was so recently associated, and to which he expects very shortly to return. That is undesirable.
In arguing the case for five years, I am arguing for a minimum which I would prefer to be extended. I think five years is probably too short a period; but it is better than three. I conceive that a company may be quite willing to come to an arrangement with one of its officers that he could be released from its activities for a period of three years and return to it at the end of that time on terms which could readily be agreed, whereas the company would be unwilling to allow its officer to be absent from it for a period as long as five years. From this important point of view a five years minimum is a good deal better than three.
This is the Opposition's object in regard to the Amendment. We approach consideration of the Amendment recognising the fact that the Court will have a high status in the country—we desire that it should—while its duties are performed. We believe that the minimum 1979 period of three years, during which lay members of the Court may sit, is too short, reflects upon the status of the Court, is likely to have the result that the best men will not be ready to make themselves available for service and is likely, above all, to have the result that the members of the Court will not have the reflective disposition and objectivity in their consideration of matters which the Government themselves have indicated is desirable.
§ The President of the Board of Trade (Mr. Peter Thorneycroft)
The hon. Member for Edge Hill (Mr. A. J. Irvine) has put his arguments for substituting five years for three years as the minimum period with great moderation and clarity. I rather agree with his arguments and think there is force in them. The period of three years provided in the Bill is a basic minimum, and I think that it is rather too short. In any normal case I should regard a three-year minimum period, for the reasons advanced by the hon. Gentleman, as too short a period for the purpose that we had in mind. However, I will explain why we have provided a three-year period.
It was that we felt there might be cases—I do not think that these would be the ordinary cases—where one could only persuade someone whom one really thought would be of value to take on this extremely important and responsible position if the period was a fairly short one. A person might have reached his retiring age in industry and not wish to commit himself for five years and might prefer a three-year appointment. That was our purpose in providing a three-year period.
Even if we retain the minimum period of three years—I must tell the hon. Member that I was impressed by his arguments—we should normally wish to appoint for a rather longer time. I can go even a little further than that. I should like to consider the hon. Gentleman's arguments. It might be that at a later stage, after reflection, one might somewhat extend the three-year period despite the reasons in favour of it that I have advanced. In any event, whether we have a four or five-year minimum period or not, it is not our purpose to make a habit of appointing people for three years. We ask for that minimum period only to be able to obtain the services of a few people who might otherwise not be available.
§ Mr. M. Turner-Samuels (Gloucester)
I recognise that at the moment this is purely an experimental matter. While it may not be an exact analogy, will the right hon. Gentleman tell us the minimum period for appointment to tribunals such as National Insurance tribunals and the land tribunals which I believe is somewhat similar?
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
Might I also put a question to the right hon. Gentleman? Perhaps he would then deal with both matters together later.
I was relieved to hear the President's answer to my hon. Friend's very reasonable case. I want to make it clear what our approach to the problem is and why we are concerned about the Amendment. Earlier, we put forward an Amendment that the lay members of the Court should be full-time, and the Parliamentary Secretary was good enough to say that that would be considered, and on that footing we did not press the matter to a Division. If the President can give any indication of how his mind is working on that subject we should be grateful to know at this stage, but I will not press him if he is not yet in a position to give any further enlightenment.
This Court will be a high court, and the lay members will be members of a high court. It is not technically a high court, but it is a high court relating to restrictive practices, a court in the same position and with the same status as the High Court. The lay members are judges of a court of High Court status for all purposes except a decision on a question of law. Therefore, it is vitally important that the lay members should be not only as impeccable as High Court judges but should clearly be seen to be as above conflict, as impartial and as free from any possibility of bias on one side or the other as are High Court judges themselves.
That is one reason why we have pressed for full-time members. It is also relevant to the Amendment. We do not want lay members being introduced in a casual way from industry and going back to industry. Although the President may be satisfied about a certain person—I am sure he would not appoint anybody unless he were satisfied—nevertheless it should be perfectly clear to everybody that there would be no possibility of suggesting that 1981 such a person was somehow or other influenced by his connection with industry in exercising his functions, which affect industry so profoundly. It is a risk to take out of industry, for decisions on industrial matters, someone who, even if he is not consciously concerned, nevertheless is affected by the outlook of the industry from which he comes.
I recognise that that may cut more than one way. It will not necessarily cut in favour of restrictive practices. In a certain case it may cut against restrictive practices. In certain cases we might have coming from industry persons whose inclinations would be for or against restrictive practices. However, I am not concerned with that. What I am concerned with is that whatever the person's bias may be or whatever his bias may appear to be, there should nevertheless not be scope for saying that a member of this court of High Court status might be biased one way or the other.
We have had great debates on whether this is a justiciable matter or not, and I shall not debate that again, but we are all agreed that the decisions will involve an economic conclusion. Therefore, the lay members of the Court will not merely exercise functions like businessmen on a bench. They will be exercising functions for which they are chosen because of their knowledge of the matter upon which they are going to take a decision. That is the very reason for choosing them. In a way it may be said—I do not want to be misunderstood on this—that they are being chosen to sit in this Court for reasons which automatically expose them to a charge of bias on the matters upon which they will adjudicate.
§ 4.0 p.m.
§ Sir Lancelot Joynson - Hicks (Chichester)
On a point of order. I understood. Sir Charles, that this Amendment dealt purely with the period of office, with substituting five years for three years, and I submit that if the hon. and learned Gentleman is going into the qualities and characteristics of these lay members his speech is out of order.
§ The Chairman
We cannot deal with the two figures without giving reasons for the longer period. I think that what is being argued is all right.
§ Sir L. Ungoed-Thomas
I had hoped that the hon. Gentleman was listening. I 1982 explained at the very beginning my reason for supporting my hon. Friend the Member for Edge Hill (Mr. A. J. Irvine) in suggesting five years instead of three years—that it was allied to there being full-time members. The same reason persuades us to support this Amendment as that in favour of full-time membership. It is the same consideration, which is that these members should not be in and out of the Court. They should be seen to be objective and impartial and there should be no possibility of suggesting bias on the part of these members of the Court. Therefore, the longer the period of appointment the better, because then, quite obviously, the more they are removed from the dust of the conflict.
I hope, therefore, that despite the reasons which the President of the Board of Trade gave—I would not say for a moment that there is no force in his observations, although, nevertheless, they do not seriously detract from the case put forward by my hon. Friend—the right hon. Gentleman will give serious consideration to the Amendment in the same way as the Parliamentary Secretary promised to give serious consideration to the proposal of full-time membership. I hope that eventually both these Amendments will be accepted. They are both directed to the same point, the impartiality of the members and the fact that that impartiality should be obvious to everybody.
§ Sir John Barlow (Middleton and Prestwich)
May I clear up one point? I believe the hon. and learned Gentleman mentioned the appointment of the lay members by the President of the Board of Trade. I think that the hon. and learned Gentleman will find that their appointment is to be made by Her Majesty on the recommendation of the Lord Chancellor.
§ Mr. Peter Remnant (Wokingham)
May I ask my right hon. Friend, when he is giving consideration to this point, to bear very much in mind the point he has already made, that three years is a minimum period and not necessarily the normal period? It appears to me quite likely that the individuals whom he is likely to get to serve as lay members will 1983 be getting towards the latter stages of their usefulness. It is not unlikely that in the case of some of them—and I emphasise some of them—their capabilities may deteriorate quite rapidly at the ages that I have in mind. Since it is so essential that all the lay members should be in full possession of all their faculties and acumen, it would be a pity that if an individual seemed to deteriorate after having served three years he should automatically be retained for a further two years. I beg my right hon. Friend to think very carefully about extending the minimum period.
§ Mr. Hector Hughes (Aberdeen, North)
It seems to me that the reasons given by the Minister for favouring three years rather than five years as a minimum period are quite inadequate. Indeed, I go further and suggest that the argument which he presented is a reason for substituting five years instead of three as a minimum.
The right hon. Gentleman said that there may be a man whom it would be difficult to induce to accept this office for longer than three years. That is the very thing against which we want to guard. We do not want a man to leave his trading or business interest, or whatever his interest may be, and to sit in the Court merely as a temporary occupant, with a view eventually to going back to his trade or commerce. That point was very properly stressed by my hon. Friend the Member for Edge Hill (Mr. A. J. Irvine). It stands to reason that if a man enters upon these judicial duties in that spirit he is likely to be influenced by considerations which should not influence a person occupying a judicial position.
The qualities which, in my submission, should be possessed by a judge of this Court should be those of independence—trade interest independence and independence of the environment from which he has sprung—so that he can consider the problems which come before him in an objective way. Another quality which such a judge should possess is the quality of detachment. It is perfectly obvious that it would be much less possible for a person who is occupying the office temporarily for a period of three years to possess the detachment required for the proper carrying out of his judicial duties. 1984 He should have knowledge, but he should also have impartiality.
It should be remembered that this is a court of record and that features of the Court should be not only the independence of its judges, but also the continuity of their duties and certainty over the kind of adjudication which will be the work of the Court. In my opinion this limitation of three years as a minimum is entirely wrong and bad for reasons which I shall put to the Committee very succinctly.
The present proposal would not give the judges sufficient security of tenure. I am sure the Committee would agree that a judge should have security of tenure in order to enable him to divorce himself from any interests which were his before he took judicial office. A period of three years, even as a minimum, is much too short for that purpose. It would undermine the independence of the judges and would discourage from taking office the type of men most required.
What is the type of men most required? Those appointed as lay members should be able to separate themselves from their partiality towards their trade interests, and should be able to sit in an Olympian way, detached from those interests, and to adjudicate fairly upon the problems which come before them.
Another point which has not so far been put forward on this matter is that this limitation will import far too great disparities between the two types of judges who will sit in this Court. We on this side of the Committee were against having a Court at all. We were in favour of having a tribunal upon which these people who in the Clause are called "other members" would be, not members of the Court, but assessors to the president of the tribunal. But be that as it may, the Government have insisted on having a Court, and one which will be a court of record. If it is to be a court of record we desire that it should be a proper court of record, and that there should be equality of status among the judges who compose it. Instead, we have in this Clause, which deals with the appointment of other members of the Court, a very great disparity between the various types of persons who will constitute the Court.
I beg the Committee to bear in mind that this is not a mere tribunal and that 1985 these other members are not merely assessors, as we would have desired them to be, but other members of a judicial court. Clause 3 deals with the nomination of judges as members of the Court. Those judges will be life judges. The Clause which we are considering deals with the appointment of what are calledother members of the courtand they will be appointed for a minimum of three years. It is perfectly obvious that the disparity between the two kinds of judges in this court of record will be one which will not enable it to function as a court of record should function.
There is another objection, apart from that of disparity between the two kinds of judges—the judges and the other members—and that is that this minimum period would tend to lead to too great and too frequent changes in the personnel of this court of record. That, in my submission, is a bad thing. There should not be frequent changes. There should be continuity which will enable those whose fortunes will be dealt with by this Court to know with reasonable probability the kind of principles which the Court will administer, and be able to foresee what the result of their affairs coming before the Court is likely to be. This minimum of three years will tend to make all that uncertain.
If there is one thing which should be a guiding principle in any court, whether it be a court of law or a court dealing with restrictive practices, it is that the decisions of the court should be certain, and it should be possible for the people whose problems will be dealt with to foresee what the result of the deliberations of the Court will be. That would be destroyed or tend to be destroyed, to put it mildly, by this minimum of three years instead of five. I should be strongly in favour of a much longer period than five years, and, indeed, I think that my hon. Friend the Member for Edge Hill suggested that he would be in favour of a longer period than five years. Three years is manifestly too short. It would impair the administration of the court and would be very unsatisfactory so far as the public welfare is concerned.
There may be other objections, but the nine which I have ventured to submit will, I think, do for the present. So I hope that the Committee will take the view, 1986 which I have put before it, that three years is far too short a period and that the period should be at least five years in order to give the various members of this Court a certain equality of status, or as near equality of status as possible, always remembering that it is a court of record and not a tribunal and also that the people called to be members are to be members of a Court and not merely assessors to a tribunal. I support the Amendment.
§ 4.15 p.m.
§ Mr. Turner-Samuels
I am sure that the President of the Board of Trade needs to be very careful about this matter. I should first like to take up the point made by my hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes). He said that the appointment of the judges would be for life. Of course, that is quite wrong. These are judges of the High Court, and it may be that they might sit in this Court for, say, twelve months and then be either translated to another court, or to the Court of Appeal or to the House of Lords and, therefore, it is quite inaccurate to compare the two.
I do not think that it makes very much difference whether the period is three years or five years. The question of age, and the fact that a person appointed may be elderly was mentioned. I quite agree with the President that we desire to be in a position to be able to appoint a person who may be very suitable at an age when, perhaps, he cannot take the position for five years. That is a possible case, but I do not think that it matters whether it is three years or five years.
What we want is to be able to appoint a suitable person, regardless of his age, who will be capable and suitable for the job. We ought not to be handicapped, by age or otherwise in selecting a person on the ground of suitability. But there is—I think the President will agree with me on this—another matter which has troubled me very much about this question of three years and I should like the President to follow this argument, because this applies to my side of the Committee as well as to the other side.
Suppose there is this limit of three years. What I am apprehensive about is that it may be possible, in the case of a person appointed for only three years, to 1987 bring political pressure to bear upon him at the end of that time, to the extent that a Government might decide not to appoint him again because he is not liked by them. I ask the President to consider that. It would really be a most serious thing if we had a competent, impartial, capable, experienced, suitable person, a member of the Court, approved by everyone, who, because of his politics or for some other reason, was not liked by the party in power and they could, at the end of three years, say to him, "We shall have nothing more to do with you." I should like the President to consider whether that is a possibility or not. The appointment should be made, as in the case of a judicial appointment, for as long as a person is of good behaviour and competent. There is no need then to fix an age limit.
An age limit should be fixed, so far as the lay members of the Court are concerned—not the judges—so that it can be said that a lay member should not sit after he is 60 or 65 years' old. That would gain the respect of the public and there would be no suspicion of politics being involved at all. If, at the age of 60, it was thought that a lay member was too old and ought to go, that would be another matter, and not a question of politics.
I ask the President to consider the effect of this danger, that there may be a suspicion in the mind of the public, or whichever party is in opposition, that a particular person has not been reappointed because of political pressure. These will be important appointments, and I cannot conceive a case in which it is more necessary to eliminate any suspicion of pressure than in the case of the occupancy of a place in this Court dealing with monopolies.
I sincerely ask the President of the Board of Trade to make the appointments with no regard to whether they are for three years or five years. I ask him to make the appointments in circumstances in which hereafter no one can ever point a finger to the President, from whatever party he comes, and say, "This qualified, competent, capable person has not been reappointed because of political pressure". I hope that the President will accept that as a permanent element in 1988 considering the suitability of any appointment of a lay member which may be made to the Court.
§ Mr. P. Thorneycroft
A very wide measure of agreement exists in the Committee on this point. We want the provision framed so that we can get the best people, who will manifestly take a detached and judicial view of these affairs. There are arguments both ways, between the merits of the respective periods of three and five years, and I think that it is possible to exaggerate the advantages of either. The members of the Monopolies Commission were appointed for three years and so were the members of the National Insurance Tribunal, but I am not necessarily guided by precedents, because neither of those bodies is strictly comparable to this one.
I should like the Committee to allow me to carry out my undertaking to consider the question of the period, and accept my assurance that the longer period would be normal. If, upon reflection, we think that a longer period should be provided, I hope that hon. Members will agree.
§ Mr. A. J. Irvine
I very much appreciate the way in which the President dealt with the matter. He has said that he will give consideration to all the arguments. Hon. Members on this side of the Committee attach importance to this matter. Having regard to the way the matter stands, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Irvine
I beg to move, in page 4, line 5, after the first "member", to insert:being a person appearing to him to be qualified as provided in subsection (1) of this section".This Amendment has the advantage of being the most incontrovertible proposition that I have ever had the privilege of making in any debate, discussion, or presentation of a case. It is desirable that the temporary members of the Court, who will have all the functions of the appointed members, shall have the qualifications which the Bill says shall attach to the appointed members.
§ Mr. P. Thorneycroft
I am much obliged to the hon. Gentleman. His 1989 argument is incontrovertibly right. Temporary members should have the requisite qualifications. I am very happy to accept the Amendment.
§ Amendment agreed to.
§ Motion made, and Question proposed, That the Clause, as amended, stand part of the Bill.
§ Sir L. Ungoed-Thomas
I have one question to ask and one point to make. First, can the right hon. Gentleman say what is the remuneration which lay members are likely to receive? Secondly, as the right hon. Gentleman has gathered, hon. Members on this side of the Committee are deeply concerned about the position of the lay members. When we last discussed the Clause I followed all the arguments very carefully. Some of us think that it would be an advantage if we had assessors in place of lay members. I shall not develop that theme now, because we shall put down an Amendment later in order to give the Committee an opportunity of discussing the alternative.
§ Mr. P. Thorneycroft
It would not be possible for me to mention a figure of remuneration because, as is laid down in the Bill, this is a matter for discussion with the Treasury. In view of what the hon. and learned Gentleman has just said, I ought to point out that at present these men will be rather more than assessors, and if they are kept upon the higher level of a judge, their salary ought to reflect that situation. In saying that, however, I must not in any way step in advance of my right hon. Friend the Chancellor of the Exchequer.
§ Mr. William Shepherd (Cheadle)
Many of us would like an opportunity of a short discussion upon the rival merits of assessors and lay members. This is a point of considerable importance. We do not want to deal with it now, but it is worth while spending a little time in discussing the respective merits of the two sorts of member. In any event, I hope that whether they be lay members or assessors their salaries will not be less than £4,000 or £5,000 a year. If they were less than that I do not think that we should get the type of person essential for this purpose.
§ Question put and agreed to.
§ Clause, as amended, ordered to stand part of the Bill.