Clause 1.—(THE LAW COMMISSION.) (Hansard, 14 June 1965)

HC Deb 14 June 1965 vol 714 cc157-78 157

§ Lords Amendment: In page 1, line 8, leave out "not more than".

§ 10.3 p.m.

§ The Minister without Portfolio (Sir Eric Fletcher)
I beg to move, That this House doth agree with the Lords in the said Amendment.
The Bill in its original form and as it passed this House provided that the Law Commission should consist of a chairman and not more than four other commissioners appointed by the Lord Chancellor. The effect of this Amendment will be to provide that the Law Commission should consist of five members. It has, in fact, always been contemplated that the English Commission should consist of five members and the only reason for framing the Clause in its original form was to give a measure of flexibility in case of some future change in circumstances.
It was, however, represented by Lord Dilhorne in another place that it would be more convenient if the Bill provided that there should always be five members of the Commission. That proposal is acceptable to the Government, more particularly as it corresponds with the original provision in the White Paper.

§ Sir John Hobson (Warwick and Leamington)
I welcome this Amendment and thank the Government for bringing it back here. There have been some substantial last-minute changes in the Bill which make a welcome alteration of the attitude from that which existed throughout the whole progress of the Bill through this House. It was not until the Report stage in the Lords that any Amendments were accepted. This inflexibility caused a great deal of waste 158 of Parliamentary time. We are glad that this and other Amendments are being brought forward. We are grateful to the Lords for the useful work they have done in improving the Bill.
This Amendment will mean that the Law Commission will have to consist of five members and not fewer. As the Bill was introduced it could have consisted of the chairman only and still have been a Law Commission. We hope that the Government in making appointments of some of the five members will take the opportunity of appointing a solicitor. I know it will be welcomed by the Minister without Portfolio if, in addition to representatives of the High Court Bar, there are also representatives of the solicitors with experience in that branch of the legal profession.

§ Mr. Graham Page (Crosby)
I am a little puzzled still about the wording of subsection (1). I wonder why the drafting is quite correct with the removal of these three words. Subsection (1) sets up a body of commissioners constituted in accordance with this section". It is not a lawful body, unless it is so constituted. It does not seem to me that it is a lawful body unless, in those circumstances, there is a chairman and four other commissioners in existence at any one time. What happens if one of them has died recently or if one of them has resigned? Does the whole body cease to exist when there are not five of them there because it is not constituted in accordance with this section"? I am not sure that the drafting is correct as it stands.

§ Sir Eric Fletcher
In reply to the hon. Member for Crosby (Mr. Graham Page), I am advised that there would be no difficulty whatever in the Law Commission functioning legally and validly, even though there were a vacancy in the body which meant that for a time there was a number less than five. This point was raised in another place and a careful explanation was given following precedents in other Acts which I think make it quite clear that, despite a temporary vacancy in the number, a body constituted under similar language to that which will now appear in the Bill need not give rise to any misgiving.
159 It was perhaps an unfortunate suggestion by the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) that any of the debates which we had in the House, either in Committee or on Report, were a waste of parliamentary time. I do not think that they were so regarded. I think that they were most helpful in producing a full and desirable consideration of the Bill.

§ Question put and agreed to.

§ Lords Amendment: In page 1, line 14, leave out from "shall" to end of line 17 and insert: be appointed for such term (not exceeding five years) and subject to such conditions as may be determined by the Lord Chancellor at the time of his appointment; but a Commissioner may at any time resign his office and a person who ceases to be a Commissioner shall be eligible for reappointment".

§ Read a Second time.

§ Mr. Deputy-Speaker (Dr. Horace King)
Sir John Hobson—

§ Sir Eric Fletcher
Perhaps I might move—

§ Mr. Deputy-Speaker
Before we go any further, the Commons Amendment must be moved first.

§ Sir J. Hobson
I beg to move, as an Amendment to the Lords Amendment, in line 3, after "appointment" insert: including a condition providing for termination on not less than six nor more than twelve months' notice by the Crown or without notice for misconduct". It is somewhat embarrassing to move an Amendment without the main Lords Amendment to which it refers, but I hope that I can achieve that purpose. As I understand it, the purpose of the Lords Amendment is to provide that the Lord Chancellor can, on appointing one or other of the commissioners, arrange terms and conditions as to length of tenure which is not to exceed five years and provide that the commissioner may at any time resign his office and is entitled to be reappointed.
All this deals with the position of the commissioner himself. As I understand it, it does not clarify what I have always found mysterious and difficult to understand, namely, the rights of the Crown as against a commissioner. The first question that arises from my Amendment 160 is whether the new commissioners will or will not be servants of the Crown. I apprehend that they will be and that the Lord Chancellor in England and the Secretary of State for Scotland in making the appointments in Scotland will be acting as Ministers of the Crown making appointments on behalf of the Crown and that to that extent the chairman and the commissioners will each and all of them on appointment become servants of the Crown.
If that be correct—I apprehend that it is correct—what will be the power of the Crown to dismiss such servants of the Crown so appointed? The ordinary rule of law, as I understand it, is that any servant of the Crown is entitled to be dismissed at any time without notice. Whether or not servants of the Crown are bound by a contract of service with the Crown still remains undecided. It was argued, I think, for 14 days in the pay-pause cases of Dudfield v. The Minister of Works and Faithfull v. The Admiralty in 1964, and the learned judge who tried those actions found it impossible to come to a conclusion on this interesting question which had occupied learned counsel employed on either side for a long time. It is, therefore, still uncertain whether ordinary servants of the Crown have a binding enforceable contract which they can enforce against the Crown.
The question, therefore, arises whether what is proposed in the Lords Amendment about the terms for which the commissioner or chairman can be appointed is or is not intended to be subject to the ordinary right of the Crown to dismiss its servant at will, or whether it is intended obliquely to give the Lord Chancellor power to override the ordinary prerogative power to dismiss servants of the Crown at will and to make a contract which for the purpose of this Statute would be binding upon the Crown on whose behalf the contract of employment had been made.
To some extent my Amendment is intended only as a probing Amendment, to see whether it was intended that the Lord Chancellor should, by the Lords Amendment, have power to dismiss servants of the Crown at any time as he pleases, or whether it was intended that he should be able to make a contract binding on the Crown that would remove 161 from the Crown the right to dismiss upon notice and which might contain a term that the commissioner should have six or 12 months' notice or any other period. If there was to be a term binding on the Crown that a commissioner could only be dismissed upon notice, I think he ought to have at least six and probably not more than 12 months' notice.
If the view of the Lord Chancellor and the Minister without Portfolio is that, in any event, the Crown will still be able to dismiss at will commissioners, it may well be that my Amendment is unnecessary. But as at present advised, it seems to me that some clarification is needed of the proposed Lords Amendment on this topic, in order to be quite certain whether those who took on the appointment of a commissioner were to be capable of being dismissed in any circumstances without notice or whether they were to have a contract which would entitle them to notice, and, if so, what that notice would be; and whether even though they are entitled to notice in the ordinary circumstances, they ought not to be capable of being dismissed for misconduct without notice in the way that all other persons are.
For these reasons, I put down this Amendment to clarify exactly how the Government regarded the Lord's Amendment and to ascertain what would be the position not of the right of the commissioner to resign or to be reappointed, bit to ascertain what would be the rights of the Crown to get rid of commissioners—in what circumstances they would be able to do so, whether notice would be necessary, and, if notice is necessary, how long it is thought that notice should be.

§ Mr. Deputy-Speaker
I think that it will be for the convenience of the House if we discuss with this Amendment the similar Amendment in line 5, after "appointment" insert: including a condition providing for termination on not less than six nor more than twelve months' notice by the Crown or without notice for misconduct". to the Lords Amendment in Clause 2, in page 2, line 12, leave out from "shall" to end of line 15 and insert: be appointed for such term (not exceeding five years) and subject to such conditions as may be determined by the Secretary of State and the Lord Advocate at the time of his appointment; but a Commissioner may at any 162 time resign his office, and a person who ceases to be a Commissioner shall be eligible for reappointment

§ 10.15 p.m.

§ Sir Eric Fletcher
I am in the same position as the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) found himself in finding it difficult to deal with his Amendment without saying a word, as he invited me to do, about the Lords Amendment—

§ Mr. Deputy-Speaker
Order. It is not out of order for the hon. Gentleman to refer to the Amendment to which this Amendment is proposed to be made.

§ Sir Eric Fletcher
I am obliged to you, Mr. Deputy-Speaker. I apprehended that that was the case and that I should be in order, first of all, in explaining, as I was asked to do, the reasons which prompted the Amendment from another place which is now on the Notice Paper.
The chief object of that Amendment is to comply with wishes, which I think were expressed in this House and certainly in another place, that a period should be put to the term of appointment of the law commissioners. In the Bill as drafted and as it left this House there was no time limit on the period for which law commissioners could be appointed under Clause 1(3). In Committee of this House an Amendment was moved from the benches opposite suggesting a maximum period of four years for the appointment of law commissioners. That Amendment was negatived here, I think without a Division.
In another place the same point was taken by the Opposition Peers and an Amendment was carried against the Government limiting the term of appointment of a commissioner to three years. That was not acceptable to the Government and on the Report stage in another place, by agreement in all quarters, it was agreed to amend the Bill by introducing the provision that the period of appointment of a law commissioner should be for five years, but that on vacating his office a commissioner should be eligible for reappointment.
The right hon. and learned Member for Warwick and Leamington has indicated that the object of his Amendment to this Clause and of a similar Amendment to Clause 2 was to inquire about the 163 intentions of the Government with regard to the status of law commissioners. The right hon. and learned Gentleman inquired, first, whether they would be servants of the Crown in the ordinary sense. My view is that they would be, subject always to the qualification that in so far as a member of a commission is a person holding high judicial office which he retains, his position is different from that of a servant of the Crown in the ordinary sense, as the right hon. and learned Gentleman will appreciate.
I am not sure whether this is the occasion or whether I am qualified to express any views at length about the general law on the subject of the right of the Crown to dismiss servants of the Crown without notice. What is contemplated in the case of the law commissioners is that their terms of service should be set out and governed by the terms of their appointment. I think that, on reflection, the right hon. and learned Gentleman will agree that that is reasonable. Any Lord Chancellor will be faced with the task of trying to recruit for the Law Commission, both in England and in Scotland, persons of eminence and distinction.
Therefore, to talk about the right of the Crown in such a case to dismiss them without cause hardly seems to me appropriate with the type of appointment which we are considering. I imagine that the difficulty will be to recruit to this important work persons of the quality and calibre desired. The terms of appointment will be expressed in writing in each case.
Surely it would be highly undesirable to suggest anything more than that, in the case of misconduct, the appointment should be terminable by the Crown. That is one of the specific points raised by the right hon. and learned Gentleman's Amendment. He suggests that the Statute should in terms provide that the term of office of a commissioner should be terminable without notice for misconduct. It seems highly undesirable to provide that in any Statute, but I can assure the House that this is the kind of point which will be covered by the terms of appointment.
I would also observe that the language of the Amendment proposed by the right 164 hon. and learned Gentleman would not achieve the result desired even if the words suggested were included in the Bill. The Amendment would give the Lord Chancellor of the day power to include a condition providing for termination, but apparently the right hon. and learned Gentleman's desire would not be achieved unless in the terms of appointment that were made an express condition. However, there would be no obligation under the Amendment to make it an express condition.
The answer, therefore, is that in each case the terms of service of the law commissioner will be set out and governed by the terms of the appointment. Surely it is academic to consider further whether that would or would not be any invasion of the Royal prerogative.

§ Mr. Charles Fletcher-Cooke (Darwen)
Although the Minister without Portfolio has really not answered the main question put by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson)—namely, whether or not without any such provision in the Bill a law commissioner can be dismissed without notice given at pleasure—he has rather assumed that that is not the case. If it is the case, if indeed a law commissioner, like any other servant of the Crown, can be dismissed without reason given at any time, then, of course, there is no need for any special conditions to be included either in the Statute, or in the warrant, or whatever document appoints law commissioners.
Therefore, it is only on the basis that the Crown has not got that power that we are really discussing the matter now. The only point that therefore arises is as to whether some pointer should be put into the Statute, or whether it should be left entirely to the Lord Chancellor to include in the warrant terms and conditions of which Parliament has so far been given no inkling.
This, to me, is rather unsatisfactory. I can well understand that neither a pointer nor a charter should be written into the Statute but, at the same time, I should have thought that the Minister ought to have given us some idea of how the Lord Chancellor will deal with this subject in the appointments, which cannot now be very long delayed. The hon. 165 Gentleman must know what the Lord Chancellor is going to do and I do not see why we should not be told. This is obviously a matter which has concerned my right hon. and hon. Friends very much. Why has the hon. Gentleman not given us the benefit of the wording that will appear in the warrants which surely by now must have been considered?
When the hon. Gentleman says that persons of eminence are to be appointed and that, therefore, the question of misconduct is unlikely to arise, that may be so but there is, of course, a middle land short of misconduct which may, nevertheless, produce a very unsatisfactory state of affairs. Persons of eminence, as they get on in life, become crotchety and cranky and start occasionally to hunt various hares which they are determined are really crusades and not hares. It m fight well be in those circumstances that a reasonable notice of, say, six months, or something like that, could be given.
It would be in the best interests both of the commissioner himself, although he is unlikely to recognise the fact, and of the Law Commission and of the public that he should go. If there is to be no such power to deal with a case which is considerably short of misconduct but which nevertheless provokes a situation in which it would be wise for the commissioner to go before his five years are up then I imagine that it would be only right that some such wording should be included in the document which appoints him.
If there was some such wording in the document he would be more likely to resign in the way these things happen, it being pointed out to him that it was perhaps, in the famous schoolmaster's phrase, really in his own best interests that he should go rather than that the power should be used. Unless the power is there and expressed to be there he is unlikely to take the hint.
I think, therefore, that on all counts the Minister should tell us what the Lord Chancellor has in mind. He need not tell us in detail the exact wording. We ought to know whether anything is to be included in the document of appointment, or whether the Crown is to rely on the doctrine that it may dismiss servants of the Crown at any time without giving any reason. If it is so to rely 166 then this, of course, is an important statement, and would be an important statement, not only for the purposes of the Bill but would go very much wider.

§ Mr. W. R. van Straubenzee (Wokingham)
I am quite sure the Minister without Portfolio appreciates these are an important series of Amendments, one of which has been moved and one which we are discussing with it. I certainly would be grateful for clarification of two further points which have not so far been mentioned and which, by your leave, Mr. Deputy-Speaker, the Minister without Portfolio is committed to reply.
The first deals with the Lords Amendment which we are discussing with this one. I was happy that we should agree to the Lords Amendment and I feel sure that we all understand the predicament of the Minister without Portfolio in having to place it before the House and having to recommend it after having strenuously argued in a contrary fashion fairly recently. What must be said clearly is that in thinking in terms of ending the terms of service of any of the commissioners a very great deal is surely going to depend on their absolute impartiality and the fact that their impartiality is seen by the country at large and the legal profession in particular.
I say quite honestly to the Minister without Portfolio that to someone like myself, with no knowledge whatever of what his noble Friend the Lord Chancellor has in mind, if it should so turn out, under any Government, that the appointments were very strongly slanted in one political direction then the Amendment which we are discussing with this one becomes of very great importance indeed. I think that it would be very helpful if we might have from the Minister an absolute assurance that when the names are given to us we shall see that they will carry weight with the country as not being sharply inclined in one particular direction, or else we shall find that the powers discussed in this Amendment will be used successively in a see-saw method by successive Governments. That would not be at all a happy situation. It may only be chance, but names are being discussed which seem to many to have very much of a bias in one direction. That would not be a happy start to the Bill.
167 I wish to ask the Minister about this second point. The phrase he used was that his noble Friend was looking for persons of eminence and distinction. I hope that when the appointments are announced they will include at least one solicitor. Certainly, it would be a great disappointment to those of us who are members of that profession if—

§ 10.30 p.m.

§ Mr. Deputy-Speaker
Order. We are getting a little wide of the Amendment that is being discussed. The remarks that the hon. Member is beginning to make may be more appropriate when we come to the Lords Amendment itself.

§ Mr. van Straubenzee
I am obliged, Mr. Deputy-Speaker. I do not want to stray. I had understood that we were discussing the Amendment moved by my right hon. and learned Friend, but that with it we were actually taking the Lords Amendment.

§ Mr. Deputy-Speaker
The hon. Member must not attempt to instruct the Chair. The House is attempting to amend the Lords Amendment. The hon. Member must address himself to the Amendment to the Lords Amendment. When it is disposed of, we can discuss the Lords Amendment.

§ Mr. van Straubenzee
If any words of mine have given you the impression that I am seeking to instruct the Chair, Mr. Deputy-Speaker, I must humbly apologise. Certainly, that was not my intention. Obviously, I had misheard something which you said earlier. I thought you said that it was in order to discuss with the Amendment moved by my right hon. and learned Friend the Lords Amendment to which it referred. I have clearly misunderstood.

§ Mr. Deputy-Speaker
Again, the hon. Member must not instruct the Chair. The Chair is simply advising the House that we can refer to the Lords Amendment which we are seeking to amend so that we may understand the Amendment itself, but for the moment we are discussing the Amendment moved by the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson).

§ Mr. van Straubenzee
I am obliged, Mr. Deputy-Speaker. One lives and 168 learns in this place—well, one learns. I will delay the second half of my exciting remarks until we reach that stage.

§ Mr. Deputy-Speaker
The Question is, That those words be there inserted in the said Lords Amendment. If the Minister wishes to address the House a second time, he must have the permission of the House.

§ Sir Eric Fletcher
I can speak again only with the permission of the House, Mr. Deputy-Speaker, and I would not want to be thought discourteous in not asking for such leave.

§ Mr. Fletcher-Cooke
Granted.

§ Sir Eric Fletcher
I should like to reply to the remarks of both the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) and the hon. Member for Wokingham (Mr. van Straubenzee). I am sorry if I failed to make it clear, when speaking earlier, what was the Government's intention in these appointments and how the Amendment comes to be introduced into the Bill at this stage. It is, therefore, necessary to remind the House of the facts.
Originally, it was contemplated that these appointments would be without limit of time. It was then suggested by the Opposition, both in this House and in another place, that it was desirable that there should be a time limit. The Government have acceded to those representations made by the Opposition, with the result that the appointments will now he for a fixed limit of five years, subject to eligibility for reappointment.
The Opposition, I gather, now wish to go further and to suggest that the appointments should be terminable without cause on six months' notice. To my recollection, that is a point that has never been previously raised in this House or in another place. The Government thought that they were meeting the wishes of the Opposition by accepting the proposal that there should be a fixed term. As I have said, it would in my view be highly indelicate to recruit persons of the desired calibre for these appointments if it were on the basis that their appointment could be terminated on six months' notice.
The proposal contained in the Bill as now proposed does not involve any assumption one way or the other about 169 the ordinary position of the rights of the Crown with regard to terminating the appointment of Crown servants. I have said and repeat that it is contemplated that in the terms of the appointment of a law commissioner there will be a provision enabling the Lord Chancellor to terminate the appointment without notice in the event of misconduct.
I rather resented some of the observations of the hon. Member for Wokingham, which seemed to cast most unfortunate reflections on the impartiality and judgment of my noble Friend the Lord Chancellor in making these appointments. These appointments will not be political appointments, any more than appointments of High Court judges are political appointments. The persons appointed yr ill be appointed for the task of carrying out measures of law reform. It may well be not unnatural that persons most competent and best qualified to undertake the work of law reform have a reforming mind, but their political views will be quite irrelevant to their appointment, and I hope, therefore, that the hon. Member will not repeat those reflections.

§ Question, That those words be there inserted in the Lords Amendment, put and negatived.

§ Motion made, and Question proposed, That this House doth agree with the Lords in the said Amendment.—[Sir Eric Fletcher.]

§ Mr. Graham Page
If I go back on some of the words which have been said I hope that I am in order in discussing the Lords Amendment. The point I wanted to ask the Minister was this. The Lords Amendment refers to conditions on which these appointments will be made. An appointment will be subject to some conditions determined by the Lord Chancellor. Does this give the Lord Chancellor the power to make a contract overriding the Crown's prerogative to dismiss on pleasure? We have heard that these are to be Crown servants, and therefore, without any special contract which the Bill may give the right to the Lord Chancellor to make, they would be dismissible on pleasure of the Crown. Do these words in the Lords Amendment give power to the Lord Chancellor to make that special contract? If so, it would be a contract which would, of 170 course, be binding on the Crown and on this House.
To what extent will those conditions be made known to this House or to the public? It may be right that they should not be made public. I do not know. It may be right that they should be made public. But I think that we ought to know to what extent we in this House will know what those conditions are. The Minister said they would be set out—I think his phrase was—in writing in the terms of the appointment, but will that writing be published?
And what effect will these conditions have on the dual capacity of those who are commissioners and who still hold high judicial office? I am a little puzzled. The Minister mentioned those who were in high judicial office, but then there are those who still hold judicial office and who, under Clause 2(4), may still be holding that judicial office. So we shall have them under a contract with the Lord Chancellor, and some of them also holding high judicial office—not servants of the Crown in that respect—and some of them, perhaps, holding ordinary judicial office, again not as servants of the Crown: they may even be servants of the local authority, if they are magistrates, I believe.
This does seem to create some difficulties in forming the conditions under which the Lord Chancellor will appoint them. I hope that those conditions will be made public, so that, perhaps, when they are first published, we shall be able to criticise them.

§ Sir J. Hobson
As my proposed Amendment has not been accepted, I should like to ask the Minister what he thinks the Lords Amendment will achieve. He said, and I agree with him, that the new commissioners will be servants of the Crown. He also said, and I think that it is correct that in appointing them, the Lord Chancellor will be bound to put a term to the period for which they can be appointed, and that it may be five years or less. One may assume that it will normally be for five years. The Minister then said that the Crown would enjoy its ordinary right to dismiss such a commissoner for misconduct. That is not the ordinary right of the Crown. That is the ordinary right of any employer. The ordinary right of 171 the Crown is to dismiss anybody without notice, and without reason given.
As I understand it, the terms which the Lord Chancellor is empowered to place in the conditions of appointment are not terms which would bind his hand and remove from him the right, if he wished to do so before the five-year period expired, to dismiss a law commissioner, not only for misconduct, but without reason stated, in the ordinary way that any other servant of the Crown can be dismissed. One hopes that no such question will arise. One imagines that the Lord Chancellor will appoint such persons that the question will never arise, and this may be academic, but, on the other hand, we know that accidents happen.
We know that people who are respectable one minute turn out, on appointment, or on the achievement of office, not to be as satisfactory as had been hoped, and I would like to get it clear that the Minister agrees with me that if we accept the Lords Amendment, the position will be that while anybody appointed will be told that his appointment is for five years, and that thereafter he must either be reappointed or give up, nevertheless, during the five years, the ordinary right of the Crown to dismiss its servants either for misconduct or without reason stated will subsist, and that the Chancellor is not being given power to make a contract removing the power of the Crown to dismiss its servants at will.

§ Mr. van Straubenzee
I should like, briefly, to return to the point which I was out of order in attempting to make earlier, and I hope that I shall be in order in making it on this occasion.
What interests me in the Lords Amendment is to what extent, if at all, it is prejudicial to the appointment of a solicitor as one of the law commissioners. I do not need to remind the Minister without Portfolio that there are many solicitors of distinction who would normally be chosen for such a commission.

§ Mr. Deputy-Speaker
Order. I am sorry to disappoint the hon. Member, but the point that he is raising is out of order, even on the Lords Amendment. It might have been proper to raise it at art earlier stage of the Bill, but it is not proper to do so now.

172

§ Mr. van Straubenzee
I am obliged to you, Mr. Deputy-Speaker. It looks as though I shall have to let the matter rest there.

§ Mr. N. R. Wylie (Edinburgh, Pentlands)
I understand that we are discussing Lords Amendment No. 5 as well as Lords Amendment No. 2. May I therefore ask whether it is intended to standardise the practice with regard to conditions of appointment and terms of service between England and Scotland? We have heard a great deal about what the Lord Chancellor is going to do—

§ Mr. Deputy-Speaker
Order. Again we are getting confused. We are not dealing with Lords Amendment No. 5. With Lords Amendment No. 2 we are discussing the proposed Amendment to the Lords Amendment in page 2, line 12. We shall come to the hon. and learned Gentleman's point later.

§ Mr. Wylie
I apologise, Mr. Deputy-Speaker.

§ Sir Eric Fletcher
I take it that I am in order in speaking on this Amendment without the leave of the House, and I shall endeavour to be brief.
I cannot help feeling that the Opposition are making rather heavy weather of this matter. I think that their fears are quite ill-founded. I am not sure whether the term "servant of the Crown" is a term of art. Nor does it seem appropriate to refer to law commissioners as servants of the Crown in the ordinary sense of the word.
I would have thought there must have been many precedents for setting up commissions in which the appointees were in a far more analogous position to the law commissioners than to servants of the Crown, in the ordinary sense. If I had known that the right hon. and learned Gentleman intended to raise this question I should have informed myself about, for example, the position of those who sit on the Monopolies Commission, with which the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) is familiar. I can best answer the right hon. and learned Gentleman's questions—or perhaps the hon. Member for Darwen can —by asking similar questions of him. Are the members of the Monopolies Commission, including the chairman, servants of the Crown? They are appointed for a 173 fixed term. Are they subject to dismissal without reason given? Are the terms of their appointment made known to the public? Are they standardised?

§ 10.45 p.m.

§ Mr. Deputy-Speaker
I hope that these questions are rhetorical. If they are not rhetorical they are out of order.

§ Sir Eric Fletcher
I was endeavouring to make it plain that I thought that they were rhetorical, and to indicate that the kind of question put to me by the right hon. and learned Gentleman must have arisen in the case of other bodies, such as the Monopolies Commission. The same answers would be appropriate in this case. I am not sure that I know what the answers are, but whatever they are they would be equally appropriate in this case.
The hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) asked whether there would be standardisation as between England and Scotland. It would be out of order to pursue that subject, but as the hon. and learned Member mentioned standardisation I must point out that it should not be assumed that the terms of appointment of the law commissioners in England will themselves be standardised. It may be appropriate that the terms of appointment in one case should be different from the terms of appointment in another. It must depend entirely on the type of person recruited.
If an eminent solicitor were considered for appointment he might have something to say about the terms on which he should be appointed before saying whether he would accept the appointment. These considerations must all enter into these matters. The terms of appointment of a law commissioner must be sui generis; they cannot be equated to the ordinary doctrines—whatever they may be—concerning the terms on which the Crown is able to dismiss, with or without cause, other servants of the Crown.

§ Question put and agreed to.

§ Lords Amendment: In page 1, line 18, leave out "high".

§ Sir Eric Fletcher
I beg to move, That this House doth agree with the Lords in the said Amendment.

§ Mr. Deputy-Speaker
It will be in order to consider, at the same time, the 174 proposed Lords Amendment No. 4, in page 1, line 20, after "not" insert: (unless otherwise provided by the terms of his appointment)

§ Sir Eric Fletcher
Yes, Mr. Deputy-Speaker.
The object of the proposed Lords Amendment is to enable holders of other judicial office—whether county court judges, magistrates, recorders, or chairmen of quarter sessions—to be appointed. The Amendment is in accordance with the wishes of the House, as expressed in our debates, and I hope that it will be acceptable.

§ Sir J. Hobson
I welcome the proposed Lords Amendment. It will enable recorders and chairmen of quarter sessions in England and Wales to retain those offices while discharging the functions of law commissioners. It will be useful for them to be able to keep in touch with the practice of the law to that extent. It will also enable county court judges to be appointed to the Law Commission in England and Wales and to retain their judicial offices and salaries, and to return to those offices on the termination of their appointments. This, I am sure, is a great improvement in the Bill, and we are grateful to the Government, for having introduced, in the Lords, this Amendment. I recommend my hon. Friends to accept it.

§ Mr. Graham Page
I would ask the Minister, if he may reply with your leave, Mr. Deputy-Speaker, and that of the House, this question. The phrase "high judicial office" is defined in the Bill in Clause 6 (2). I am not certain what is covered by "judicial office" which is not covered by "high judicial office", or what the distinction is.
There will certainly be a distinction in the Bill between "high judicial office" and "judicial office", because the commissioner who holds high judicial office will retain his salary as a high judicial officer, but the commissioner who holds judicial office will not, if I read the subsection correctly, retain his salary as a judicial officer. He will have to have a new salary altogether as a commissioner. Although he may, with leave, retain his judicial office, he will retain his salary.
I think that I have interpreted the subsection correctly as it will stand if 175 the Lords Amendment is accepted. It is a little confusing if the high judicial officer is entitled to retain both his salary and his office, while the judicial officer appointed as a commissioner is entitled to retain his office but not his salary.

§ Sir Eric Fletcher
With your leave, Mr. Deputy-Speaker, and that of the House. The interpretation put upon these words by the hon. Member for Crosby (Mr. Graham Page) appears to me to be entirely accurate. As he has observed, the term "high judicial office" is defined in Clause 6(2). I think it reasonable to say that a judicial office which is not a high judicial office is any other judicial office. It is true, as the hon. Member for Crosby observed, that this alteration in the Bill does not call for any alteration in Clause 5 dealing with salary. I think that the reason is fairly obvious. It is not unreasonable to assume that the salary payable to a law commissioner may be less than the salary of a High Court judge. Therefore, there are obvious reasons why the holder of a high judicial office appointed to the Law Commission should retain his salary. On the other hand, it is at least possible, and may be likely, that the salary payable to a law commissioner will be higher than the salary of a holder of a judicial office which is not a high judicial office. Therefore—

§ Mr. Graham Page
Before the Minister leaves that point, would he not give attention to the point about pension as well for the judicial office, so that a person appointed as a commissioner who holds only judicial office will not lose any pension rights because he is in that state of suspended animation in his judicial office?

§ Sir Eric Fletcher
I can assure the hon. Member that attention will be paid to that point.

§ Question put and agreed to.

§ Lords Amendment: In page 1, line 20, after "not" insert: (unless otherwise provided by the terms of his appointment)".

§ Read a Second time.

§ Sir J. Hobson
I beg to move, as an Amendment to the Lords Amendment, in page 1, line 2, at the end to add be entitled or". 176 As I understand the matter, the Lords Amendment proposes that, by the terms of a commissioner's appointment, provision can be made as to whether he shall be required to discharge his judicial duties or not. Therefore, in his warrant of appointment, or terms of appointment, there may be stated the extent to which he is expected to perform the duties of his judicial office.
My Amendment is very simple. Ought not the contract of employment also to deal with not only his duty, but his right to perform his judicial functions? We are now providing that not only High Court judges, but county court judges, recorders, chairmen of quarter sessions, magistrates and perhaps even coroners may be law commissioners. Their terms of appointment will say whether or not they are required to perform those functions. But he may be very keen on his judicial functions. Being, for instance, a very busy recorder of one of our larger cities, he might want to devote almost all his time to the duties of that office and not so much of his time to his duties as a law commissioner.
I hope that the Government will think that it would clarify and assist the drawing up of these contracts if the contract not only said whether the person had a duty to perform his judicial functions but whether he had a right to do so, and if so, to what extent. I should have thought that the contract ought at least to provide that in the event of a conflict between the person's duties as a law commissioner and the discharge of his judicial office which he retained, he must put one or the other first; or it might provide that he should be entitled to discharge his judicial office on not more than a certain number of days in the year.
The Lords Amendment deals only with the duty. I should have thought that it might be convenient that the right of an individual law commissioner to perform other functions outside his duties as a law commissioner should also be dealt with in the warrant, or at least that there should be power for the Lord Chancellor to include such terms if he wished to do so so that he could provide that a person who was a law commissioner and also retained a judicial office should not be entitled to do so at the expense of the 177 discharge of his functions as a law commissioner. This is a short point, and I hope that I have made it clear.

§ Sir Eric Fletcher
The short answer to the right hon. and learned Gentleman is that the terms of his suggested Amendment are not necessary, nor are they, indeed, calculated to give effect to the object that he has in mind. It is, I think, desirable to require specifically in the Statute that the holder of a judicial office should not be required to perform his duties. I do not think that it follows that it is necessary to provide in the Statute that he should not be entitled to perform those duties.
I agree with what the right hon. and learned Gentleman says, that it is all qualified by the words proposed in the Lords Amendment: unless otherwise provided by the terms of his appointment". Whether the words about being entitled to perform judicial duties are inserted or not, it can equally well be covered by the terms of the appointment, and will be. Therefore, I think that the substance of what the right hon. and learned Gentleman has in mind will be met in each case by the terms of the appointment.
Obviously, in some cases, particularly in the case of a recorder, it would be appropriate to provide in the terms of his appointment that he should not only be entitled to perform the duties of recorder but should be required to do so. Otherwise, it might well limit the rights of those responsible for appointing the person to a recordership. There are bound to be a number of borderline cases in this context, and in every case of someone holding a judicial office appointed to the Commission it must be in the terms of agreement between the Lord Chancellor of the day and the person appointed as to whether he should continue to fill the judicial office or not.
Let us take, for example, the hypothetical case of the chancellor of a diocese who might be considered, because of other qualifications, eligible for appointment to the Law Commission. The question would immediately arise whether he should surrender his appointment as chancellor of a diocese or whether he should not. That is the kind of thing which in every such case 178 would be provided for in the terms of appointment.

§ Question, That those words be there added to the Lords Amendment, put and negatived.

§ Lords Amendment agreed to.

§ Further Lords Amendment agreed to.