§ Mr. A. J. Irvine
I beg to move, in page 3, line 38, to leave out "three" and insert "five". This Amendment relates to the minimum period of membership of the lay members of the new Court. There was an undertaking given by the Government that they would investigate this question, and it is a matter of disappointment that nothing appears to have been forthcoming from that promised investigation. The real importance of the point is that on this side of the House we thought that if the minimum period of appointment to the Court of a lay member was as short as three years, the consequence would be that to an extent which was very undesirable people would be coming out of industry and out of business and out of commerce to be members of the Court, adjudicating upon matters with which they had business and commercial connections, and then, after so short an interval of time, returning to industry again.
We thought that the consequence of such an activity would be to derogate from the dignity of the Court and from its reputation. Obviously it is of the first importance that the Court should be recognised by all, and especially by all engaged in commerce and trade, as being entirely impartial, and as studying these difficult problems of the public interest in commerce with objective and detached minds. We all want that, and it seems to us that that purpose is endangered by the proposal that so short a period as three years may be the minimum period of membership of the Court.
Therefore, it comes about that on this choice between three years and five there really can be pegged a fairly important issue of principle. It is disappointing that the Government should have reflected upon these matters and not come forward with any proposal to meet the arguments which they have heard. If my recollection does not fail me, we had the impression, when these points were made previously, that they seemed to be carrying some conviction with hon. and right hon. Gentlemen opposite. When, with the factors that I have mentioned, there is also taken into account the separate point that there is no express provision in the Bill that the lay members of the 632 Court shall be full-time members, it seems desirable that the House should take the steps which are open to it, even at this late stage, to ensure that everything is done which can be done to strengthen and improve the status of those lay members.
§ The Parliamentary Secretary to the Board of Trade (Mr. Derek Walker-Smith)
The hon. Member or Edge Hill (Mr. A. J. Irvine) has referred to the discussions which we had earlier on this point, and has said his recollection was that his arguments on that occasion were carrying conviction —
§ Mr. Walker-Smith
—seemed to be carrying conviction. I am not sure that that is not an overstatement. The arguments of the hon. Gentleman always command attention and, indeed, always provoke reflection and consideration, and so they have done on this occasion. As he said, we gave an undertaking to investigate this matter to see if it would be appropriate to amend the Bill in the sense desired, so as to meet what is after all a common objective, that so far as possible the lay members of the Court should be of the highest possible standing, and should be, and should be seen to be, as impartial and as objective as possible.
The difficulty which we feel about this matter, and the reason we have left the Bill as it is, is that "three" is a minimum figure. I reiterate what was pointed out in the previous proceedings —that it is not intended that it should be a standard figure for the appointment of the lay members of the Court. On the contrary, in the ordinary run of cases it is contemplated that appointment will be for longer than the minimum period of three years.
It is, however, impossible to exclude the possibility that there might be people who are in every way suitable for appointment but who would be unwilling to tie themselves down for as long as five years, for various reasons and not necessarily because of their desire to return to business; it might be their 633 desire to retire from active life in a shorter period than five years. They might be unwilling to accept service for a minimum period of five years but willing to accept service for three years. It is to meet that exceptional but possibly important case that we prefer to leave the provision as it is drafted.
I ask the hon. Member to believe that it is exalting the point to say that there is an important issue of principle between three years and five years. This is a very narrow point. With that explanation, and with the undertaking that the period of three years is only an exceptional, minimum period, retained for the reasons that I have given, I hope that it will not be considered necessary to press the Amendment.
§ Mr. Jay
My recollection is that the President of the Board of Trade gave an undertaking to consider sympathetically both our proposal to lengthen the period of service and our associated proposal that the lay members of the Court should he full-time and not part-time. We have tabled another Amendment on the latter point, which I agree is more substantial, but it has not been called.
I am bound to say that I am not satisfied with the very slender assurance which the Parliamentary Secretary has given. After all, these lay members of the Court will be exceedingly important. This is one of the crucial links in the Bill. What the lay members will do, in effect, is to decide far-reaching economic and political questions; that has been fully admitted by both sides of the House. In fact, what the Bill does in economic policy is to substitute the judgment of these at present anonymous persons—we do not know who they will be for the judgment and decision of Parliament. They are to decide very largely what the economic policy of the country will be in future, as affecting the whole of this vast range of restrictive trade agreements.
Of course, we on this side of the House do not think it right that the decision should be made in that way. The more the discussions on the Bill continue, the more we are convinced that the issues which will come before this Court are not justiciable. Nevertheless, if we are to have these lay members and this Court, as we are to have them under the Bill as it stands, their selection is vital. I hope the 634 President will take note of the fact that one of the most important actions which he will take under the Bill when it becomes law is the choice of individuals to do this job. The public confidence which the Court will demand will very largely depend on that.
So far as we know, these lay members are apparently to be individuals who for a period of not less than three years—and probably for more than three years—will in part of their time make these exceedingly important decisions, although many of them will continue to hold other jobs and in some cases will presumably receive other fees, emoluments or salaries.
§ Mr. Walker Smith
The right hon. Gentleman says that many of these people will continue to do other jobs. It was made clear in the previous proceedings that that was an exceptional provision related to possible circumstances in Northern Ireland and in Scotland.
§ Mr. Jay
But surely it may happen. It is not excluded that at any rate some of these members may be doing other work and even receiving other emoluments. That is clear from another Amendment on the Order Paper, which we reach next in which the President takes power to remove them from office if he thinks that their employment or interest may beincompatible with the functions of a member of the court.I will not discuss that Amendment now, but it is relevant to our discussion. Under it the President can remove lay members. It therefore appears that they may have other forms of employment.
We feel that that is exceedingly unsatisfactory. If a man is working in industry, whether on the employers' side or on the workers' side, we must admit that he tends to have the philosophy of the producer; and that will tend, perhaps unconsciously, to prejudice him on one side or the other in arriving at a judgment which is intended to hold a balance between producers and consumers. There is bound to be that philosophy.
It therefore seems to us that, even if we cannot go the whole way and make these people whole-time salaried members of the Court, like the other judges—as we think they should be—at least we can make sure that they are not in office for a few years and are then likely to go back to work for some outside employer 635 or outside interest. It is a fact, which nobody will deny, that if people expect to be working for a certain employer in a few years' time, that tends to colour their minds in the work which they do and the judgment which they make. Some of us were conscious of that when working amongst temporary civil servants as the end of the war approached. I do not think we should like that influence to work too heavily. It is the tradition in this country that judges should be put entirely beyond any association with any sort of interest, and should be paid entirely by the State on a scale which puts them beyond even the suspicion of any temptation. That is
§ accepted by all of us. The lay members are fully judges in this case; as the Parliamentary Secretary will agree, they are fully members of the Court. We therefore do not see why they should be in an entirely different position from the judges. They will take exceedingly important decisions. As we see the matter, they will not be placed in a position which will enable them to enjoy the full confidence of the country, as they ought to enjoy it, if the Bill is to work properly.
§ Question put, That "three" stand part of the Bill:—
§ The House divided: Ayes 259. Noes 195.639
|Division No.216.]||AYES||[6.9 p.m.|
|Agnew, Cmdr. P. G.||Dodds-Parker, A. D.||Hulbert, Sir Norman|
|Aitken, W. T.||Donaldson, Cmdr. C. E. McA.||Hutchison, Sir Ian Clark(E'b'gh, W.)|
|Allan, R. A. (Paddington, S.)||Drayson, G. B.||Hyde, Montgomery|
|Alport, C. J. M.||du Cann, E. D. L.||Hylton-Foster, Sir H. B. H.|
|Amery, Julian (Preston, N.)||Duncan, Capt. J. A. L.||Iremonger, T. L.|
|Amory, Rt. Hn. Heathcoat (Tiverton)||Duthie, W. S.||Irvine, Bryant Godman (Rye)|
|Arbuthnot, John||Eden,Rt.Hn.Sir A.(Warwick & L'm'tn)||Jenkins, Robert (Dulwich)|
|Armstrong, C. W.||Eden, J. B. (Bournemouth, West)||Jennings, J. C. (Burton)|
|Ashton, H.||Emmet, Hon. Mrs. Evelyn||Johnson, Dr. Donald (Carlisle)|
|Atkins, H. E.||Errington, Sir Eric||Johnson, Eric (Blackley)|
|Baldock, Lt.-Cmdr. J. M.||Erroll, F. J.||Jones, Rt. Hon. Aubrey (Hall Green)|
|Balniel, Lord||Farey-Jones, F. W.||Joseph, Sir Keith|
|Barlow, Sir John||Fell, A.||Joynson-Hicks. Hon. Sir Lancelot|
|Barter, John||Finlay, Graeme||Keegan, D.|
|Baxter, Sir Beverley||Fisher, Nigel||Kerby, Capt. H. B.|
|Bell, Philip (Bolton, E.)||Fletcher-Cooke, C.||Kerr, H. W.|
|Bell, Ronald (Bucks, S.)||Fort, R.||Kershaw, J. A.|
|Bennett, F. M. (Torquay)||Foster, John||Kimball, M.|
|Bevins, J. R. (Toxteth)||Fraser, Sir Ian (M'cmbe & Lonsdale)||Kirk, P. M.|
|Bidgood, J. C.||Freeth, D. K.||Lagden, G. W.|
|Biggs-Davison, J. A.||Galbraith,Hon. T. G. D.||Lambert, Hon. G.|
|Birch, Rt. Hon. Nigel||Garner-Evans, E H.||Lambton, Viscount|
|Black, C. W.||George, J. C. (Pollok)||Lancaster, Col. C. G.|
|Body, R. F.||Gibson-Watt, D.||Leather, E. H. C.|
|Boothby, Sir Robert||Glover, D.||Leburn, W. G.|
|Bossom, Sir Alfred||Godber, J. B.||Legge-Bourke, Maj. E. A. H.|
|Bowen, E. R. (Cardigan)||Gomme-Duncan, Col. Sir Alan||Legh, Hon. Peter (Petersfield)|
|Boyd-Carpenter, Rt. Hon. J. A.||Gower, H R.||Lindsay, Hon. James (Devon, N.)|
|Boyle, Sir Edward||Graham, Sir Fergus||Lindsay, Martin (Solihull)|
|Braine, B. R.||Green, A.||Linstead, Sir H. N.|
|Bromley-Davenport, Lt.-Col. W. H.||Grimond, J.||Lloyd, Maj. Sir Guy (Renfrew, E.)|
|Brooke, Rt. Hon. Henry||Grimston, Hon. John (St. Albans)||Lloyd, Rt. Hon. Selwyn (Wirral)|
|Brooman-White, R. C.||Grimston, Sir Robert (Westbury)||Lloyd-George, Maj. Rt. Hon. G.|
|Bryan, P.||Grosvenor, Lt.-Col. R. G.||Longden, Gilbert|
|Buchan-Hepburn, Rt. Hon. P. G. T.||Hall, John (Wycombe)||Low, Rt. Hon. A. R. W.|
|Bullus, Wing Commander E. E.||Harris, Frederic (Croydon, N.W.)||Lucas, Sir Jocelyn (Portsmouth, S.)|
|Burden, F. F. A.||Harrison, A. B. C. (Maldon)||Lucas, P.B. (Brentford & Chiswick)|
|Butcher, Sir Herbert||Harvey, Air Cdre. A. V. (Macclesfd)||Lucas-Tooth, Sir Hugh|
|Butler, Rt. Hn. R.A. (SaffronWalden)||Harvey, Ian (Harrow, E.)||Macdonald, Sir Peter|
|Campbell, Sir David||Harvey, John (Walthamstow, E.)||McKibbin, A. J.|
|Carr, Robert||Hay, John||Mackie, J. H. (Galloway)|
|Cary, Sir Robert||Heald, Rt. Hon. Sir Lionel||McLaughlin, Mrs. P.|
|Chichester-Clark, R.||Heath, Rt. Hon. E. R. G.||Maclay, Rt. Hon. John|
|Clarke Brig. Terence (Portsmth, W.)||Henderson, John (Cathcart)||McLean, Neil (Inverness)|
|Conant, Maj. Sir Roger||Hicks-Beach, Maj. W. W.||Macleod, Rt. Hn. Iain (Enfield, W.)|
|Cooper, Sqn, Ldr. Albert||Hill, Mrs. E. (Wythenshawe)||MacLeod, John (Ross & Cromarty)|
|Cooper-Key, E. M.||Hinchingbrooke, Viscount||Maddan, Martin|
|Craddock, Beresford (Spelthorne)||Hirst, Geoffrey||Maitland, Hon. Patrick (Lanark)|
|Crouch, R. F.||Holland-Martin, C. J.||Manningham-Buller, Rt. Hn. Sir R.|
|Crowder, Sir John (Finchley)||Holt, A. F.||Markham, Major Sir Frank|
|Cunningham, Knox||Hope, Lord John||Marlowe, A. A. H.|
|Currie, G. B. H.||Hornby, R. P.||Marples, A. E.|
|Dance, J. C. G.||Horobin, Sir Ian||Mathew, R.|
|Davidson, Viscountess||Howard, John (Test)||Maude, Angus|
|D'Avigdor-Goldsmid, Sir Henry||Hudson, Sir Austin (Lewisham, N.)||Mawby, R. L.|
|Deedes, W. F.||Hughes Hallett, Vice-Admiral J.||Maydon, Lt.-Comdr. S. L. C.|
|Digby, Simon Wingfield||Hughes-Young, M. H. C.|
|Milligan, Rt. Hon. W. R.||Renton, D. L. M.||Thornton-Kemsley, C. N.|
|Molson, Rt. Hon. Hugh||Ridsdale, J. E.||Tiley, A. (Bradford, W.)|
|Morrison, John (Salisbury)||Robertson, Sir David||Tilney, John (Wavertree)|
|Mott-Radclyffe, C. E.||Robinson, Sir Roland(Blackpool, S.)||Touche, Sir Gordon|
|Nabarro, G. D. N.||Robson-Brown, W.||Turner, H. F. L.|
|Nairn, D. L. S.||Rodgers, John (Sevenoaks)||Turton, Rt. Hon. R. H.|
|Neave, Airey||Roper, Sir Harold||Tweedsmuir, Lady|
|Nicholls, Harmer||Schofield Lt.-Col. W.||Vane, W. M. F.|
|Nicolson, N. (B'n'h'th E. & Chr'ch)||Scott-Miller, Cmdr. R.||Vaughan-Morgan, J. K.|
|Nield, Basil (Chester)||Sharpies, R. C.||Vickers, Miss J. H.|
|Noble, Comdr. A. H. P.||Shepherd, William||Wakefield, Edward (Derbyshire, W.)|
|Oakshott, H. D.||Simon, J. E. S. (Middlesbrough, W.)||Wakefield, Sir Wavell (St. M'lebone)|
|O'Neill, Hn. Phelim (Co.Antrim, N.)||Smithers, Peter (Winchester)||Walker-Smith, D. C.|
|Ormsby-Gore, Hon. W. D.||Soames, Capt. C.||Wall, Major Patrick|
|Orr-Ewing, Charles Ian(Hendon, N.)||Spearman, Sir Alexander||Ward, Hon. George (Worcester)|
|Osborne, C.||Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)||Ward, Dame Irene (Tynemouth)|
|Page, R. G.||Stanley, Capt. Hon. Richard||Waterhouse, Capt. Rt. Hon. C.|
|Pannell, N. A. (Kirkdale)||Stevens, Geoffrey||Watkinson, Rt. Hon. Harold|
|Partridge, E.||Steward, Sir William (Woolwich, W.)||Webbe, Sir H.|
|Peyton, J. W. W.||Stewart, Henderson (Fife, E.)||Whitelaw, W.S.I.(Penrith & Border)|
|Pilkingon, Capt R. A.||Stoddart-Scott, Col. M.||Williams, Paul (Sunderland. S.)|
|Pitman, I, J.||Studholme, Sir Henry||Williams, R. Dudley (Exeter)|
|Pitt, Miss E. M.||Summers, Sir Spencer||Wills, G. (Bridgwater)|
|Pott, H. P.||Taylor, Sir Charles (Eastbourne)||Wood, Hon. R.|
|Powell, J. Enoch||Taylor, John (West Lothian)||Woollam, John Victor|
|Price, Henry (Lewisham, W.)||Teeling, W.||Yates, William (The Wrekin)|
|Prior-Palmer, Brig. 0. L.||Thomas, Leslie (Canterbury)|
|Profumo, J. D.||Thomas, P. J. M. (Conway)||TELLERS FOR THE AYES|
|Raikes, Sir Victor||Thompson, Kenneth (Walton)||Colonel J. H. Harrison and|
|Ramsden, J. E.||Thompson, Lt-Cdr.R.(Croydon, S.)||Mr. Barber.|
|Rawlinson, Peter||Thorneycroft, Rt. Hon. P.|
|Ainsley, J. W.||Fletcher, Eric||MacColl, J. E.|
|Albu, A. H.||Forman, J. C.||McGhee, H. G.|
|Allaun, Frank (Salford, E.)||Fraser, Thomas (Hamilton)||McKay, John (Wallsend)|
|Allen, Arthur (Bosworth)||Gaitskell, Rt. Hon. H. T. N.||MacPherson, Malcolm (Stirling)|
|Allen, Scholefield (Crewe)||Gibson, C. W.||Mahon, Simon|
|Awbery, S. S.||Grenfell, Rt. Hon. D R.||Mallalieu, E. L. (Brigg)|
|Bacon, Miss Alice||Grey, C. F.||Mallalieu, J. P. W. (Huddersfd, E.)|
|Balfour, A.||Griffiths, David (Rother Valley)||Mann, Mrs. Jean|
|Bence, C. R. (Dunbartonshire, E.)||Griffiths, Rt. Hon. James (Llanelly)||Marquand, Rt. Hon. H. A.|
|Benn, Hn. Wedgwood (Bristol, S.E.)||Griffiths, William (Exchange)||Mason, Roy|
|Benson, G.||Hale, Leslie||Mayhew, C. P.|
|Bevan, Rt. Hon. A. (Ebbw Vale)||Hall, Rt. Hn. Glenvil (Colne Valley)||Messer, Sir F.|
|Blackburn, F.||Hamilton, W. W.||Mitchison, G. R.|
|Blenkinsop, A.||Hastings, S||Monslow, W.|
|Blyton, W. R.||Hayman, F. H.||Moody, A. S.|
|Boardman, H.||Healey, Denis||Morrison,Rt. Hn.Herbert(Lewis'm,S.)|
|Bottomley, Rt. Hon. A. G.||Henderson, Rt. Hn. A. (Rwly Regis)||Mort, D. L.|
|Bowden, H. W. (Leicester, S.W.)||Hobson, C. R.||Moss, R.|
|Bowles, F. G.||Holman, P.||Moyle, A.|
|Boyd, T. C.||Holmes, Horace||Mulley, F. W.|
|Braddock, Mrs. Elizabeth||Howell, Charles (Perry Barr)||Neal, Harold (Bolsover)|
|Brockway, A. F.||Howell, Denis (All Saints)||Noel-Baker, Francis (Swindon)|
|Broughton, Dr. A. D. D.||Hubbard, T. F.||Oliver, G. H.|
|Brown, Thomas (Ince)||Hughes, Cledwyn (Anglesey)||Oram, A. E.|
|Burton, Miss F. E.||Hughes, Emrys (S. Ayrshire)||Oswald, T.|
|Butler, Herbert (Hackney, C.)||Hughes, Hector (Aberdeen, N.)||Owen, W. J.|
|Butler, Mrs. Joyce (Wood Green)||Hunter, A. E.||Padley, W. E.|
|Callaghan, L. J.||Hynd, H. (Accrington)||Paget, R. T.|
|Castle, Mrs. B. A.||Irvine, A. J. (Edge Hill)||Paling, Rt Hon. W. (Dearne Valley)|
|Chetwynd, G. R.||Irving, S. (Dartford)||Paling, Will T. (Dewsbury)|
|Clunie, J.||Isaacs, Rt. Hon. G. A.||Palmer, A. M. F.|
|Collick, P. H. (Birkenhead)||Janner, B.||Parker, J.|
|Collins, V. J. (Shoreditch & Finsbury)||Jay, Rt. Hon. D. P. T.||Parkin, B. T.|
|Cove, W. G.||Jenkins, Roy (Stechford)||Pearson, A.|
|Craddock, George (Bradford, S.)||Johnson, James (Rugby)||Plummer, Sir Leslie|
|Cronin, J. D.||Jones, David (The Hartlepools)||Price, J. T. (Westhoughton)|
|Crossman, R. H. S.||Jones, Elwyn (W. Ham, S.)||Price, Philips (Gloucestershire, W.)|
|Cullen, Mrs. A.||Jones, Jack (Rotherham)||Probert, A. R.|
|Darling, George (Hillsborough)||Jones, J. Idwal (Wrexham)||Proctor, W. T.|
|Davies, Harold (Leek)||Jones, T. W. (Merioneth)||Pryde, D. J.|
|Davies, Stephen (Merthyr)||Kenyon, C.||Randall, H. E.|
|Dodds, N. N.||Key, Rt. Hon. C. W.||Rankin, John|
|Donnelly, D. L.||King, Dr. H. M.||Redhead, E. C.|
|Dugdale, Rt. Hn. John (W. Brmwch)||Lawson, G. M.||Reeves, J.|
|Ede, Rt. Hon. J. C.||Ledger, R. J.||Reid, William|
|Edwards, Robert (Bilston)||Lee, Frederick (Newton)||Robens, Rt. Hon A.|
|Edwards, W. J. (Stepney)||Lee, Miss Jennie (Cannock)||Roberts, Albert (Normanton)|
|Evans, Albert (Islington, S.W.)||Lewis, Arthur||Roberts, Goronwy (Caernarvon)|
|Evans, Stanley (Wednesbury)||Logan, D. G.||Robinson, Kenneth (St. Pancras, N.)|
|Fernyhough, E.||Mabon, Dr. J. Dickson||Rogers, George (Kensingon, N.)|
|Ross, William||Taylor, Gernard (Mansfield)||White, Henry (Derbyshire, N.E.)|
|Shinwell, Rt. Hon. E.||Taylor, John (West Lothian)||Wilkins, W. A.|
|Silverman, Julius (Aston)||Thomas, George (Cardiff)||Williams, Rt. Hon. T. (Don Valley)|
|Silverman, Sydney (Nelson)||Thomson, George (Dundee, E.)||Williams, W. R. (Openshaw)|
|Skeffington, A. M.||Thornton, E.||Williams, W. T. (Barons Court)|
|Slater, Mrs. H. (Stoke, N.)||Timmons, J.||Willis, Eustace (Edinburgh, E.)|
|Slater, J. (Sedgefield)||Turner-Samuels, M.||Wilson, Rt. Hon. Harold (Huyton)|
|Smith, Ellis (Stoke, S.)||Ungoed-Thomas, Sir Lynn||Winterbottom, Richard|
|Snow, J. W.||Usborne, H. C.||Woodburn, Rt. Hon. A.|
|Sorensen, R. W.||Viant, S. P.||Woof, R. E.|
|Stewart, Michael (Fulham)||Warbey, W. N.||Yates, V. (Ladywood)|
|Stokes, Rt. Hon. R. R. (Ipswich)||Wells, Percy (Faversham)||Younger, Rt. Hon. K.|
|Stones, W. (Consett)||Wells, William (Walsall, N.)||Zilliacus, K.|
|Summerskill, Rt. Hon. E.||West, D. G.|
|Sylvester, G. 0.||Wheeldon, W. E.||TELLERS FOR THE NOES:|
|Mr. Short and Mr. Deer.|
§ Mr. Walker-Smith
I beg to move, in page 4, line 2, at the end to insert:or on the ground of any employment or interest which appears to the Lord Chancellor incompatible with the functions of a member of the Court".The effect of the Amendment is to give the Lord Chancellor power to remove any appointed lay member of the Court if, in his opinion, that member has any employment or interest which is incompatible with his work in the Court.
The matter was touched upon in the course of the discussion on the previous Amendment, when I reminded the House, in an intervention, that the intention is to have, in the case of England, at all events, lay members who have no outside commitments. In regard to Northern Ireland and possibly Scotland, there may not be enough work, as I indicated during the Committee stage, to occupy lay members for the whole of their time, and in those circumstances the obviously convenient, appropriate and economic course would be to appoint members to serve on the Court only from time to time and to pay them accordingly.
At the same time, it is obviously a very important point of principle that there should be no danger of a conflict of interests arising on the part of a lay member who is from time to time sitting as a member of the Restrictive Practices Court. Of course, no member of any court can sit as a member of it if he is directly interested in the subject matter of the action before it. That is clear. However, in the circumstances of the sort of jurisdiction which the Restrictive Practices Court will have, it is desirable to spell out a rather more specific safeguard by reason of the possibility of any employment or interest giving a perhaps less direct bias in regard to the work of the Court.
640 That is what is sought to be done by giving the Lord Chancellor this rather wide power to determine the membership of any lay appointed member not only on the grounds of inability or misbehaviour, which are at present in the Bill in Clause 4 (2, b), but also on the ground of conflict of interests as expressed in the Amendment.
§ Mr. Mulley
When this matter was considered in Committee—arising from an Amendment which has not been selected today, concerning full-time members of the Court—the Parliamentary Secretary gave an undertaking that he would consider the whole problem again. I presume that the Amendment with which we are now concerned is the outcome of that consideration. It is a most unsatisfactory outcome, and it is really the most extraordinary provision that I have ever seen proposed for insertion in an Act of Parliament. If the appointed members are to have a status and jurisdiction comparable with that of a High Court judge it is most extraordinary that it should be thought, or even suggested, that in the course of their employment they might be offered other work or have interests which would directly conflict with their judicial functions.
I appreciate that an assurance has been given that English members will be full-time members, and that this point will therefore not arise in their case, but we should be much more satisfied if that provision were written into the Bill. Government Amendments have already been made, writing in assurances which we consider quite unnecessary. In the matter of the Registrar's consultations with the Law Officers, for instance, we thought that they were either unnecessary or that they would be accepted in practice.
Surely, before any member of the Court is appointed inquiries will be made whether or not he has another possibly 641 conflicting employment or interest. The Government do not appear to recognise the fact that if this procedure is to succeed people must be appointed who have experience of the kind of problems which they will face on the bench. If we obtain the right kind of people, with a proper knowledge of commerce and restrictive practices, it is obvious that they will be unable to pursue their ordinary vocations and also work as part-time judges.
The President himself said that hon. Members on this side of the House sometimes under-estimated the ramifications of restrictive practices in industry and commerce. I am prepared to accept his view that they are very widespread, and if that is so, I cannot see where he is going to find satisfactory part-time people who, in addition to this judicial work, will be able to carry on their normal work or pursue their normal interests. The Parliamentary Secretary rather gave away the point in his reply in Committee, when he suggested that the problem in Scotland and Northern Ireland would be met by appointing retired persons. He was mistaking antiquity for experience.
It is not a matter of great concern to me what happens in Scottish or Northern Ireland courts, but I do not think that Scottish and Northern Ireland Members will want to be fobbed off by having members over the retiring age appointed. especially as in the sphere of commerce and directorships the retiring age is usually rather higher than elsewhere. I understand that the custom among directors is not to retire until one is well over 70 years of age. Are such people the ones whom the Government have in mind to sit as members of the Court in Scotland and Northern Ireland? It is important that we should be satisfied upon this point before we pass from this very unsatisfactory Amendment.
In our view, the amount of money which will be saved by not having full-time members simply because the volume of work will not justify their full-time employment, will not be very much, but the proposal to employ part-time members will undermine the whole principle upon which we believe that these restrictive practices should be considered. I hope that the Parliamentary Secretary will think again, and a little more deeply, about the ramifications of the policy which the Government seem bent upon, of having part-time 642 members in Northern Ireland and Scottish courts, thereby saving a small amount of money.
It seems extraordinary that it should have to be written into the Bill that these ladies and gentlemen who may be appointed by the Lord Chancellor must not take employment or have an interest which is incompatible with their function in the Court—which function I consider to be equivalent to that of an ordinary judge. The appointed members of the Court may very well over-rule the High Court judge in a certain matter. It seems extraordinary that we should have to have these words in the Bill. A much more satisfactory way of disposing of the problem would be, as we have suggested before, by appointing full-time members. In our view, that is the only proper way in which the appointed members can discharge this very considerable and distinguished function.
§ Mr. Grimond
My Scottish blood was a little roused by the possibilities of the Amendment, although I may have misunderstood the point. If so, I apologise in advance to the Parliamentary Secretary and to the House for wasting time. I should, however, like a little more information upon one or two points, some of which have been touched upon by the hon. Member for Sheffield, Park (Mr. Mulley).
It is true that in Committee the Parliamentary Secretary threw out the suggestion that Scottish members might be appointed upon a part-time basis, but I do not think he gave the Committee the impression that he had decided that that would necessarily be the case. There are many objections to part-time members. The persons who are appointed should be really knowledgeable about industry and, if so, if they were employed part-time they would probably be employed in industry. For that reason alone it is doubtful whether part-time members would be suitable. Secondly, I should like to know whether, at the moment, it is envisaged that English members shall not sit in Scotland, and Scottish members shall not sit in England. One solution of the problem might be to move them across the border occasionally.
§ Mr. Mulley
The difficulty is that the number of judges and the number of lay members appointed under the Bill will be 643 such that if appointed members moved across the border we should be left with an unemployed judge. If two Scottish members came to England, two English members would have to stand down, in order that three English judges remained fully employed.
§ Mr. Grimond
It is rather like having a mixed flock of sheep. I suppose, however, that the judge might be employed upon other business. It would be of advantage if the Parliamentary Secretary could say what he has in mind on that point.
Lastly, I understand that it will be a matter for the Lord Chancellor to remove a Scottish member. I believe the Lord Chancellor can no longer deal with the removal of justices of the peace in Scotland, and I am not quite certain that he should be able to remove a Scottish member either in the event of his misbehaviour or because his other interests conflict with his function as a member of the Court—although that may be an unduly nationalist point.
§ 6.30 p.m.
§ Mr. Walker-Smith
By leave of the House, I will deal with the points just raised by the hon. Member for Orkney and Shetland (Mr. Grimond). First, there is the point as to the position of the Lord Chancellor in the removal of members. The Lord Chancellor, at all events as I understand the matter, is the Lord Chancellor of the United Kingdom and in that sense his jurisdiction embraces Scotland as well as England. Indeed, if it is of any comfort to the hon. Gentleman, the present distinguished incumbent of that office is, of course, himself a Scotsman, albeit he was not a member of the Scottish Bar.
In regard to the question of the members who may not be sitting so continuously as to preclude the possibility of their undertaking other activities, what I said during the Committee stage and what I repeated again today was that it is likely that the Court in Northern Ireland. and possibly the Court in Scotland, may not have enough cases to be constantly in session. I am very glad that, with his customary perspicacity, the hon. Gentleman has not taken that as a slight upon Scotland, as did an hon. Member during the Committee stage. Of 644 course, if anything, it is a compliment to a country that it should not have sufficient cases with which to occupy a Court full time in investigating.
So far as the lay members are concerned, there is nothing statutory in the Bill requiring the lay members of the Scottish or Northern Ireland Court to be Scotsmen or Northern Irishmen in the sense that there is statutory provision in regard to the judge of the Scottish Court. Nevertheless, I think the House would probably take the view that, in the ordinary way, it is desirable that the lay members sitting in Scotland and Northern Ireland should be Scotsmen or Northern Irishmen, respectively, as the case may be.
If it is not to be done on that basis and if there is not enough work to occupy those two Courts whole time, then the only other method under the Bill that I can see would be to depart from that practice and to have people crossing the border to sit as members of the Scottish Court and crossing the sea to sit as members of the Northern Ireland Court. That is what I had in mind when I said that this method would enable us to meet that principle better. We have given a lot of thought—I say this in answer to the hon. Member for Sheffield, Park (Mr. Mulley)—as I promised to do, to this point, and this Amendment is the best practical safeguard that we have been able to evolve which does not trespass upon any other principle which we desire to implement.
I am sorry that the hon. Member for Sheffield, Park did not seem to appreciate the suggestion which I made during the Committee stage that some of the gentlemen sitting as members of these courts might be people of mature years and experience. I must console myself for that with the commendation which that point of view received from his hon. Friend the Member for Edge Hill (Mr. A. J. Irvine) who, during the proceedings in Committee, on 26th April, said: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:"—that is, I 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 645 all the more agreeable for expressing a truth."—[OFFICIAL REPORT, 26th April, 1956; Vol. 551, c. 1977.]Therefore, if I do not command the assent of the hon. Gentleman, at least 1 command the assent of his hon. Friend.
§ Mr. Mulley
I agree with the phrase—it is an excellent Parliamentary phrase—and with what is meant, but what I do not accept is that a person does not reach maturity and wisdom until after the age of 70. In the commercial world many directors retain their directorships after that age. If maturity means, say, the age of 50 plus, 1 would agree, but not over 70, as would be the case if the Minister wants part-time members.
§ Mr. Walker-Smith
if the hon. Gentleman had found time to refresh his mind a little more fully with the proceeding, during the Committee stage before embarking on this discussion he would have seen that in another part of our debates I attempted some analysis of the relativity of maturity, depending on whether it was in relation to an executive or a judicial function. This is a judicial function, and it is commonly believed that maturity comes a little later in the exercise of judicial functions than in the exercise of executive functions.
§ Mr. Walker-Smith
The age of the English judges has nothing to do with me and with this Bill. Judges of the Court, as the hon. Gentleman well knows, are to be appointed by the Lord Chancellor on the same principle as judges are appointed at the present time. That is the reason why we have provided this safeguard in the Bill in order to meet the perfectly proper point that there should be no possibility of a conflict of interests. That is one of the reasons why we have not been able to make the Amendment, which I must not discuss because it was not selected, which hon. Members opposite would have preferred.
In any event, the phrase "full-time members" is a vague and difficult one, and it would have been difficult to incorporate it into the Bill for that reason. We have done our best to meet the point of principle, and I hope that the hon. Gentleman and the hon. Member for Orkney and Shetland will accept the explanations I have given.
§ Sir L. Ungoed-Thomas
The Parliamentary Secretary says that this is the best that the Government can do compatible with the scheme and principles which they have embodied in the Bill We agree, of course, that it is an improvement, and, therefore, we shall not vote against it. But it is a most miserable reflection upon the scheme of the Bill that this is the best that the Government can do compatible with their scheme and their principles.
What we have here are part-time temporary judges who can be appointed for only three years. The requirement of the three years is wanted because, apparently, it is contemplated that the Government may want to appoint as a lay judge somebody within three years of becoming an undesirable member of the Court on account of his age.
The hon. Gentleman referred to age and maturity, and all the rest of it. Of course, it may well be so in the case of somebody who has spent a great part of his life as a judge, but it is entirely different to bring in a person as a judge within three years of incapacity and expect him to exercise judicial functions in those circumstances. It is fantastic. To have judges like these doing work of this importance as full-time members of the Court, in circumstances in which it is necessary to legislate for power to remove them because they may hold part-time jobs incompatible with the work they are doing, is really atrocious.
These lay judges should not be full-time judges of the Court at all; they should be assessors. As we have said already, what we are concerned with here is not really a case which is justiciable, it is not really a matter which should be dealt with by judges. As we have said, it should be dealt with by the Government as a matter of policy. That is the fundamental difference between us in relation to the whole of the judicial part of the Bill. It is for that reason that the Government have to bring in these people as lay members and not as assessors.
The whole thing is self-contradictory. and this provision is a reflection upon the fundamental weakness and self-contradiction of the Bill. But it is the best that the Government can do, compatible with 647 the main principles which they have embodied in the Bill, and for that reason we cannot oppose it.
§ Amendment agreed to.