HC Deb 22 March 1965 vol 709 cc187-216
Sir John Hobson (Warwick and Leamington)

I beg to move, in page 1, line 13, at the end, to insert of whom not less than two shall be persons actively engaged in the administration or practice of the law at the time of their appointment". I wondered whether it would not be convenient if we were to discuss also Amendment No. 6, to Clause 2, in page 2, line 11, at the end to insert of whom not less than two shall be persons actively engaged in the administration or practice of the law at the time of their appointment which is in precisely the same form and affects Scotland. It would be a little odd if the result were different in England from that in Scotland on this point.

Mr. Deputy-Speaker (Dr. Horace King)

Unfortunately, Amendment No. 6 has not been selected by Mr. Speaker.

Sir J. Hobson

I was aware of that, Mr. Deputy-Speaker, but I think that it was said to have been a provisional selection by Mr. Speaker. I was only about to submit to you that it would perhaps be more convenient if precisely the same form of words were considered in relation to Scotland, because Clauses 1 and 2 deal with the two different Commissions. It would be very odd indeed if a limitation of this sort were put on the English Commission without the inclusion of such a limitation in respect of the Scottish Commission. I do not know whether we could perhaps, with your permission, take Amendment No. 6 with this.

Mr. Deputy-Speaker

This seems to make sense to me. I do not know the reason that Mr. Speaker did not select Amendment No. 6. It will not be voted on when it is reached, but I would not deprive the right hon. and learned Gentleman of the opportunity of speaking about it.

Sir J. Hobson

I am obliged.

The purpose of this Amendment in relation to England—so far as Scotland is concerned precisely the same arguments apply—is to ensure that the Commission which is to be set up and which is to consist of five members is not wholly composed of persons who, at the time of their appointment, are not engaged in the practice of the law. In other words, it is to see that retired people or academics do not form the whole of the Commission of five. The Minister without Portfolio was good enough in Committee to say that he would consider this matter. I hope that, having considered it, he will see the force of the arguments which have been put and will agree to accept the Amendment.

I acknowledge, of course, that academics and retired judges or retired solicitors or barristers may well have a contribution to make to the Commission in either England or Scotland. They can form very useful members of the Commission, but it would, I think, be disastrous if the Commission were to be composed solely of such persons. I am sure that the Minister without Portfolio will agree with me that it is essential, if the Commissions are to function properly, that they should be kept in very close touch with those who, at the time of their appointment, are currently in touch with the administration of the law. I take it that that phrase includes most of the judiciary, members of the Bar and members of the solicitors' profession in England and advocates, writers to the signet and solicitors in Scotland.

The Commissions ought certainly to consist of a mixture. I should be the last person to suggest that there should be no academics and retired people. I would not suggest that the Commissions should consist solely of members of the judiciary who, when appointed, are concerned with the administration of the law in one form or another, but if we are to secure a mixture, we should have a limitation on the number who can be appointed as academics or retired judges.

If a Commission is at full strength, it will have five members, and it would then be perfectly possible for the academics or retired judges or practitioners to form a majority of the Commission because three of them would be members of the Commission and the only obligation is to take two of the people specified in the Amendment.

The Amendment merely puts into statutory form what were announced in the Committee to be the intentions of the present Government. The Minister without Portfolio said in Committee that it was the intention of the present Government to appoint at least two persons who are specified in the Amendment—namely, those who, when appointed, are actively engaged in the administration or practise of the law. Therefore, I cannot think that there can be any reason why the Government, having this intention, should not be perfectly willing to accept that this is an honourable and sensible intention which not only the present Government at the present stage but the present Government at a later stage and any other Government in the future ought to have before them and ought to conform with. The only result of putting it into statutory form is not to place an obligation on the Government to do what they have already announced that they intend to do but to ensure that in the future they do it and that future Governments also do it. For these reasons, I hope that the Minister will be able to accept the Amendment.

Mr. Norman St. John-Stevas (Chelmsford)

While I am very appreciative of the sentiments of my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson), I must confess that I have some doubt whether the Clause is strictly necessary. It is clear that the Lord Chancellor wants the Commissions to work, and if they are to be effective they must include practising lawyers. The present occupant of the Woolsack is well known for his devotion to the Bar and would, I should have thought, be the last person in the world to exclude the necessary number of practising lawers from the Commissions.

There is the further point that there may well be in the future—we do not know the situations in which it might be desirable—a need to have a preponderance of academic lawyers over practising lawyers. It could happen that the eminence of an academic lawyer in a particular situation in a certain sphere of the law would mean that his presence would he required. The Amendment would fetter the discretion of the Lord Chancellor unnecessarily. I am not one of those who regard the words "academic lawyer" as a term of abuse. I have been both a practising and an academic lawyer, and, indeed, I served in the chambers of my right hon. and learned Friend the Member for Warwick and Leamington as his pupil.

A further objection to the Amendment is the restriction to the appointment of those who are engaged in the administration or practise of the law at the time of their appointment. It may well be that there would be an eminent judge or barrister who had just retired from the Bar whom the Lord Chancellor wished to appoint, and the terms of the Amendment might restrict him from making that appointment.

I hope, therefore, that this Amendment will not be pressed. I feel that here we can trust to the wisdom of the Lord Chancellor whose devotion to the Bar is so well known and whose presence on the Woolsack is, to my mind, a great compensation for the existence of the present Government.

Sir Knox Cunningham

I would never trust to the wisdom of any Lord Chancellor of any party in matters of this sort. It is for the House to see that this is a good Bill. I support my right hon. and learned Friend in the Amendment for these reasons. As I understand it, as the Clause stands at present: The persons appointed to be commissioners shall be persons appearing to the Lord Chancellor to be suitably qualified by the holding of judicial office or by experience as a barrister or solicitor or as a teacher of law in a university I had experience as a barrister some five years ago, but having had experience as a barrister or a solicitor may not in the present day and in the present state of the law, and in view of what is required by these Commissioners, be a particularly good qualification. Therefore, I would have thought it was eminently reasonable to have at least two of these Commissioners, which is what the Amendment suggests, who will have been practising right up to the moment of their appointment. I will give them up-to-date experience and it will be a great help to the other Commissioners.

Again, with regard to a teacher of law in a university, I have a great respect for academic lawyers, but I remember in my experience seeing one of them performing. He was a very eminent lawyer and was engaged in a prize case at the end of the war. He was left alone. He floundered around and in practical matters he was very incompetent. He also wasted a great deal of time. Quite obviously, these Commissioners must be men who know what is going on in the law today because they are going to suggest reforms in it. I think, therefore, that it is absolutely essential that two of the Commissioners at least should have practical experience right up to the time of their appointment.

I understand that together with this Amendment we are able to discuss Amendment No. 6, in page 2, line 11, standing in the names of my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie) and of my hon. Friend the Member for Aberdeenshire, West (Mr. Hendry), because it deals with exactly the same point with reference to Scotland. I would be extremely rash if I sought to discuss the law of Scotland, but I hope that we shall have some assistance from the benches opposite and be told about this question in Scotland and Scottish law. Who better to do that than the Secretary of State himself? I hope that he will join in this debate and give us the benefit of his ability and knowledge of Scottish law. I hope that we may have his support on the Amendment which concerns Scotland just as I give my right hon. and learned Friend my support on the Amendment which he moved and which applies to England and Wales.

10.30 p.m.

Sir Eric Fletcher

I cannot help feeling that the case put by the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) in support of this Amendment was really conclusively demolished by the speech of his former pupil the hon. Member for Chelmsford (Mr. St. John-Stevas). It must have been very gratifying to his former master, the right hon. and learned Gentleman, and it makes it, I feel, very unnecessary for me to say much more.

I would like to repeat the undertaking which I gave in Standing Committee and to which the right hon. and learned Gentleman referred. I repeat the assurance that it is the intention of the present Government that at least two of the persons to be appointed by them shall be persons actively engaged in the administration or practice of the law at the time of their appointment. I have also, in accordance with the undertaking that I gave in Standing Committee, considered with my right hon. and learned Friend whether there is any merit in an Amendment on these lines. This Amendment is slightly different from the one which we discussed in Committee, when it was suggested not that "not less than two" but that "not less than three" persons should be so actively engaged.

We have come to the conclusion, very largely for the reasons given by the hon. Member for Chelmsford, that any such Amendment is not only unnecessary but would be regrettable. It would fetter the discretion of the present Lord Chancellor and all subsequent Lords Chancellor. At the same time, I think that we all agree, and it would be the wish of any Lord Chancellor, that it would be thoroughly unsatisfactory for the Law Commission to be staffed exclusively either by retired persons or academics or by a combination of the two. Any Lord Chancellor would wish this Law Commission to be broadly based and to contain within its membership of five persons trained from the widest possible sphere of experience, from the point of view of the administration, teaching or practice of the law. It would, therefore, be undesirable to fetter the discretion of the Lord Chancellor by writing such words into the Statute.

Our view is that we should leave the question of appointments to the good sense of the Lord Chancellor for the time being. Apart from that, it seems to me that the Amendment is not aptly drafted. As the hon. Member for Chelmsford pointed out, the reference to …the administration or practice of the law at the time of their appointment". would be unduly fettering. It would mean, for example, that if someone retired as a judge or from the Bar one day, then the following day he would be ineligible, whereas if he was appointed on the day before he retired he would be eligible. Although one does not wish to mention names, I am sure that all hon. Members, certainly those with legal experience, can call to mind a number of distinguished barristers who have ceased to be at the Bar for one reason or another—perhaps to take up work in politics, in administration or public work—and who would be eminently qualified but would no longer be qualified if the Amendment were accepted, because it might not be said at the time of their appointment that they were …actively engaged in the administration of the law". I hope, for these reasons, that the hon. and learned Gentleman will not press the Amendment.

Sir D. Renton

I am sorry that the hon. Gentleman has not seen the light over this matter and, if I may say so, I did not think that my hon. Friend the Member for Chelmsford (Mr. St. John-Stevas) did either. Although flexibility is often a good thing, merely to talk about flexibility is not quite enough in the context of the Clause.

We must bear in mind that we want the Commission of five members to be well manned. It will have a High Court judge or somebody higher than that as its chairman. Of the four remaining members, I suggest that there is too much flexibility at present. It may be difficult to get barristers or solicitors of the type it would be valuable to have—persons with recent practical experience—and it might be easy to get somebody on the way out. That is why we placed at the end of the Amendment the words …at the time of their appointment". It will be seen, therefore, that there is some sense in that.

I do not think that we will feel that the public is necessarily being well served by somebody getting this extremely agreeable public appointment in order to ease his declining years. I am sure that the Government view on this is that we want people with experience of the law and with a future in the law; people in the prime of life who will give several of the best years of their lives to the work of the Commission.

Obviously such people will be rather difficult to get. Will it not be very tempting for a Lord Chancellor, knowing that he must somehow fill these appointments, in default of getting the right type of barrister or solicitor, or two barristers or two solicitors, to get out of the difficulty in one or other of two ways? These are either by appointing three or four academic lawyers instead of only two academic lawyers, or by getting members of the legal profession who are on the way out? This is a serious point and one which deserves a much more sympathetic understanding than it has been given this evening.

I thought that the Minister without Portfolio was very sympathetic and sensible when he dealt with this matter in Standing Committee, and we had hoped that this Amendment exactly interpreted the views which he then expressed. The hon. Gentleman has already referred to what he said in col. 19 of the Standing Committee's Report at the conclusion of the discussion. I will not repeat that, but I would remind him of what he also said in col. 17: It might well be desirable that three members of the Commission should be two solicitors and one teacher of law, or one solicitor and two teachers of law… but he then went on to say something which is now irrelevant. I agree that at the time he said it I was shocked that my Amendment in Committee had that result. The hon. Gentleman said: It might well be desirable that three members of the Commission should be two solicitors and one teacher of law, or one solicitor and two teachers of law, but it does not seem to me to be reasonable to ensure that at all times three of the five should consist either of judges or barristers, which would be the result of the Amendment"—[OFFICIAL REPORT, Standing Committee A, 2nd March, 1965; c. 17.] That does not arise tonight, but neither does any conflict between the merits of academic and practising lawyers arise tonight. That is not the point. The point is that we want to ensure that this is a well-balanced Commission from the point of view of the type of legal experience that can be brought into its counsels. For the reasons which I have given, although it may be very difficult for the hon. Gentleman to give a reply tonight altering the reply which he has already given, I ask him to invite the attention of the Lord Chancellor to the arguments which my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) and I have put forward.

It would be an awful pity if, the Government having gone to the trouble of establishing this Commission, we found that through there being too much flexibility—and it is as easy to have too much as too little—a Lord Chancellor some time in the future, not necessarily at once, were to use the soft option of getting hold of academic lawyers instead of barristers or solicitors who are still in the prime of life with experience to contribute and a legal career still ahead of-them. I hope that the hon. Gentleman thinks about this seriously.

Mr. Geoffrey Howe (Bebington)

I should like to add my support to what my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) has just said, not in any tendentious spirit, but merely to emphasise to the Minister without Portfolio that among members of the profession, particularly the young members, there is or could well be genuine concern if there were any uncertainty about the nature of the Government's intention in this respect. I believe that it is important that at least two members of the Commission should have had recent, almost immediate, experience, preferably in both branches—one from each—of the practice of the law. It is very easy to underrate the extent to which a retired practitioner can get out of touch with the feeling within his profession.

I hesitate to say this about my hon. Friend the Member for Chelmsford (Mr. St. John-Stevas), but perhaps he will forgive me if I observe that he has moved into such stratospheric realms since his practice at the Bar that his energies have become increasingly directed to the academic side. Although I have no doubt that he, for example, would have a great deal to contribute to the deliberations of the Commission, he would not necessarily command the immediate enthusiasm of those of his colleagues in the profession who have soldiered on in the trenches of the Bar. Without giving examples, one can call to mind other people who have quite recently left the upper reaches of both professions and who quickly begin to move into a different category and turn into a different kind of animal.

I earnestly put this point to the Minister. What is important is recent experience in the practice of the profession, giving both continued qualification with the necessary "know-how" and qualities which would carry the confidence of those who remain in practice.

If the Law Commission presents this kind of picture, bringing people in their prime of life into active work on it, the Commission could begin to fulfil another useful rôle, that is, building bridges between the world of academic lawyers and the world of practising lawyers. There is still a wide gulf fixed between these two, and it would not be impossible for the Commission to become a kind of transit camp, of the more respectable sort, through which academic lawyers might come to practise and through which practising lawyers might move on to academic appointments. There is much more contact between these branches of the law in the United States, for example, than there is in this country, and that object would be much more likely to be achieved by the appointment of practitioners of both kinds while still in their prime of life at the time of their appointment.

Mr. Percy Grieve (Solihull)

I support the Amendment and endorse entirely what has been said by my hon. Friend the Member for Bebington (Mr. Howe). Those who are in practice in the legal profession now and who remain in practice will have a very special function to perform on the Commission. They will bring to the Commission the knowledge of their friends in practice of the lacunae in the law and the room in ticular branches for reform.

It seems to me, therefore, that they will have a special function to perform on the Commission, and it is asking little of the Minister to accept that at least two members of the Commission should be pracising members of the legal profession and that the Bill should so provide.

Sir Eric Fletcher

I appreciate the spirit in which the speeches have been made by hon. and right hon. Gentlemen opposite. There is really nothing between us on both sides of the House. We are all anxious that these Commissions should be well balanced. The only real problem is whether this qualification should be written into the Bill or whether the appointments to produce the balance should be left to the good sense and discretion of the Lord Chancellor and his successors. Speaking for my noble Friend, I have already indicated what his intention is, and I am quite sure that equally it would be the intention of any future holder of his office to see that the appointments were such as to constitute a well balanced Commission comprising at least two persons with, as the hon. Member for Bebington (Mr. Howe) said, recent experience.

10.45 p.m.

Recent experience, of course, is slightly different from active engagement in the administration or practice of the law at the time of their appointment. It seems to me, therefore, that to insist upon these words in the Bill would be an irritating and unnecessary interference with that desirable measure of flexibility which I am sure any holder of the office of Lord Chancellor would exercise in the spirit in which we are all anxious that these two Law Commissions should be constituted. Whereas I need hardly give an assurance that my noble Friend will read everything said in this House, I hope that right hon. and hon. Gentlemen opposite will not press the Amendment.

Sir Knox Cunningham

On a point of order. I understand that we are discussing Amendment No. 6 together with other Amendments. When I asked whether there would be a reply from a Scottish Minister, the Secretary of State nodded. Would it be in order for him to give some reply?

Mr. Deputy-Speaker

It would be in order for any right hon. or hon. Gentleman to catch the eye of the Speaker or Deputy-Speaker, but one of the most ancient gambits in the House is to lament that a Minister does not take part in the debate. It is an ancient gambit, but it has always been out of order.

Amendment negatived.

Sir J. Hobson

I beg to move Amendment No. 2, in page 1, line 18, to leave out subsection (4).

Mr. Deputy-Speaker

It would be for the convenience of the House to take at the same time Amendment No. 3:

In page 1, line 21, at the end to insert: for a period not exceeding four years from the date of his appointment as such member".

Sir J. Hobson

These two Amendments have been put down in order to investigate and to consider a little more deeply the constitutional position of the new body which we are setting up by the Bill and the implications of allowing within the body a member of the judiciary who, under the Bill, can retain his position if he is a higher judicial officer and at the same time be a member of the Commission. Is it right either that he should do so—which is a point raised by Amendment No. 2—or that he should do so for more than four years, which is the question raised by Amendment No. 3?

From a consideration of the Bill, it is a little difficult to see exactly what will be the constitutional position of the Law Commissioners when they have been appointed. Are they servants of the Crown? One would think that they almost certainly were. They are paid out of public funds. They are appointed by the Lord Chancellor. When one looks at their functions it is quite plain that they are, as I described them on Second Reading, a spare wheel in the machinery of Government. The justification of the Bill is that they are a necessary spare wheel which will carry a great deal of weight and will assist the Government, upon whom it is acknowledged still rests the primary responsibility for all law reform.

It must be agreed that the executive, the Ministers of the Crown, remain primarily responsible for the forwarding of the processes of law reform, whether it be general law reform or the more narrow field of the reform of lawyers' law. It is obvious that the Lord Chancellor, to whichever party he may belong and whoever he may be, will carry the primary responsibility for seeing that the processes of getting the law up-to-date, of reforming the processes of the law, and of making lawyers' law better. This is a responsibility which will primarily and always rest on the Government as a whole and on the Lord Chancellor, in particular, as a member of the Government. It is plain that the design of these Law Commissioners is to assist that process in England and in Scotland to assist the Secretary of State and the Lord Advocate in the same process as it is followed in Scotland.

This becomes plain when one looks at Clause 3. Under that Clause, the Law Commissioners will have the specific duty to consider any proposal for law reform which may be referred to them by anybody; and in particular, by any Government Department, by the Lord Chancellor and by any members of the Government who require advice or help. They will be under the duty also to consider—and I emphasise to consider as opposed merely to receiving—any proposals from any hon. Member of this House, from members of any political party, or, I suppose, from any crackpot who feels like writing to them.

On top of all this, they will have to prepare programmes for the Lord Chancellor and the Secretary of State for Scotland, if either of those persons approve, and consider any proposal referred to them by the Lord Chancellor on particular branches of the law and formulation of proposals for reform. All this will be an additional part of the cog under which law reform and improvements to the law are produced. They will have responsibility for providing assistance to Government Departments, whatever that may mean; and one supposes that they will be attached to the Departments. They will be under a duty to give that assistance if requested by any Government Department.

It would seem that the whole usefulness and purpose of the Law Commission is to come from considerable support to the Government which may happen to be in office, and the success of the Commission in England and Scotland will depend very greatly upon the closeness of the Lord Chancellor and the Secretary or State for Scotland with the Commissioners as they may exist.

The significant point is that this places them, while their functions remain so indeterminate as they are under the Bill, within the purview of the Executive. For any part of the machinery of government, it places them in the closest possible contact with Ministers of the Crown in both Houses of Parliament. One could foresee questions being frequently asked of the Lord Chancellor, or the Secretary of State, as to whether certain proposals have been referred to the Commission; whether a report has been received on this subject or that, while questions can be asked by hon. Members of this House and another place. There can be political correspondents outside asking about the state of the law and the work of the Commissioners.

All this raises the question of whether it is right, in these circumstances, that a member of the judiciary who has always remained separate from and independent of the Executive should be placed in the position of having transferred himself into the executive field of action while, at the same time, retaining his status as a Lord of Appeal or a Lord of Appeal in Ordinary. This is something which has not been properly thought out, and, while I see that it is a good idea for there to be legal qualifications, I question whether it is right when they are members of the Commission for them to be in such close proximity to Ministers of the Crown and the Executive that they should remain at that same time with their full office of a judge, with all its privileges and immunities. They can, and presumably will, on appointment maintain their irremovability from judicial office. They could be dismissed as Law Commissioners but could not, except by petition of both Houses of Parliament, be removed from judicial office. They would presumably continue to draw salary and pension for a job they were not doing. We do not know what salary and pension the other members of the Commission may be given, but they may be very different from the salary and pension and the position and status of a High Court judge.

It would be undesirable that one of the members of the Commission should be put on a completely different basis from his colleagues on the Commission. I believe that the position is different as between England and Scotland, but an English judge receives a writ of summons to advise the House of Lords, attends the opening of Parliament, and could be in a position in which he was summoned to advise the House of Lords, as one of Her Majesty's judges, as to the law on a topic of which he was considering the reform of that law in his capacity as a Law Commissioner.

It is a little odd that we are to muddle up completely the position of the judiciary, which should be entirely independent of the Executive and the Legislature, and the position of a person who is retaining the constitutional status, the pay and the privileges of a High Court judge, at the same time as he is a member of the Law Commission. Surely it places such an individual in a rather invidious situation, because the individual judge who may decide, while retaining his office as a judge, to become a Law Commissioner would be in a position in which, if he envisaged that he would return to his judicial office at a future date, he would be at the mercy, in his future career as a judge, of either the existing Lord Chancellor or a prospective Lord Chancellor.

Sir Eric Fletcher

So he is at present.

Sir J. Hobson

But he is only subject to the views of the existing Lord Chancellor or a future or prospective Lord Chancellor in respect of the discharge of his judicial duties. His prospects of judicial promotion, however, might be prejudiced, not by the performance of his judicial duties, but by the performance of duties which are largely executive, duties which may bring him into considerable political controversy on some topic of law reform that is referred to the Commission by a Minister.

Supposing racial discrimination or trade disputes are referred to the Law Commission and it makes a report. It might very well be that the chairman of the Commission was a person who had retained his status as a High Court judge and who expected to return to it but who, not by any performance of his judicial functions but by a performance of extra-judicial functions, would place himself in a position of embarrassment in relation to the existing or a future Lord Chancellor.

All I am saying is that the Law Commission does not seem to have or to fit in very plainly at the moment with any exact constitutional position. It does seem, in so far as it fits into the constitutional scheme at all, to be very closely linked indeed to the Executive. It is quite wrong to place a person who holds judicial office in a position in which he continues to hold that judicial office while he becomes, as it were, part of the Executive.

Mr. Leo Abse (Pontypool)

The right hon. and learned Gentleman is making an interesting point, and I am sure we are all following it. Did he find any difficulty when he was Attorney-General? Was not that a similar position? Was there conflict between his political and judicial rôles? Was there such agony in that position that he feels that it would be possible that someone else may be placed in a difficult position?

Sir J. Hobson

The Attorney-General does not hold a judicial position but is adviser to the Government. He is a member of the Government. The hon. Gentleman's analogy is not correct. The office of Attorney-General is temporary. It is not pensionable and the occupant is not there for 15 years. His prospects of promotion do not depend upon the discharge of judicial office. It is absurd to draw an analogy between a High Court judge or Lord Justice of Appeal, acting as one of the Law Commissioners, and the Attorney-General. Their circumstances are completely different.

11.0 p.m.

Therefore, I submit that we should consider very carefully within the framework of the situation the position of the Law Commissioners. I have always thought that this work should be done by an expansion of the Lord Chancellor's Department, and to the extent to which Law Commissioners are an extension of the Lord Chancellor's Department or the Scottish Office and the Lord Advocates Department the more successful they will be. It is obvious that there must be very close co-operation between the Government of the day and the Law Commissions. I would rather see this done by an expansion of the Lord Chancellor's Department. That not being so we shall have a situation in which the success of the Law Commissioners depends on the closeness of their association with the Government of the day. If that is right—and I am sure it is as a practical position—then it is very embarrassing to place a member of the judiciary who retains his judicial office in that position. It may lead to considerable difficulties in the situation of an individual who is placed in that dual capacity.

There is a second objection to subsection (4) which would be better left out entirely. We should leave it so that if anybody wants to be appointed to the Law Commission he can resign his judicial office and perhaps, at a later stage, be reappointed. The Clause, as drafted, is a little odd. What would be the position of the holder of high judicial office if he were made a part-time Commissioner? He need not be required to perform his judicial duties but, presumably, he could volunteer to do them. There is nothing to preclude that, but it is, is it not, a rather odd situation to have a member of the judiciary who only volunteers to do his work? He would be in a position in which he could say to the Lord Chief Justice that he was sorry but the Law Commission stopped him from going out on circuit, or going on an inconvenient or long case, or going to the Old Bailey because he did not like trying crime.

It would not be a satisfactory position to have a member of the higher judiciary who only performed as such when he volunteered to do so. Of course, if it is envisaged that the holders of high judicial office are only to be appointed as full-time members of the Commission, then that point does not arise. I would have thought that there was considerable scope—if we are to have any part-time member of that Commission at all—for having members of that judiciary part-time and leaving them with their full obligations as High Court judges and not placing them, unlike their brethren, in the position of being volunteers in the discharge of those duties.

The other difficulty about subsection (4) is that it appears, by implication, to affect the position of those who hold judicial office which is not high judicial office; for example, in England there are county court judges, stipendiary magistrates, members of the Bar who are recorders or chairmen of quarter sessions, and in Scotland we have sheriff principals and sheriff substitutes. By implication, if a holder of a high judicial office may be appointed without relinquishing that office, a holder of a judicial office which is not a high office must presumably relinquish that office.

Sir Eric Fletcher

indicated assent.

Sir J. Hobson

I see that the Minister nods his head. Is that quite right?

It would disqualify appointing any of these persons as part-time members, but if we are to have no part-time members the point would not arise. Is it right, however, that we should not have any county court judges as part-time members of the Commission? Is it right, above all, that members of the Commission who are, or have been, members of the Bar or solicitors holding judicial appointments, such as recorders or chairmen of quarter sessions, should not continue to preside over those courts? I do not know about the position in Scotland, but I should have thought it perfectly possible for a sheriff principal to be a part-time member of the Law Commission in Scotland and to have retained his position as a sheriff principal.

The Secretary of State for Scotland (Mr. William Ross)

I am fascinated by the right hon. and learned Gentleman's arguments and how he has managed to bring Scotland into Clause 1. If he had felt so kindly and generously about the position of Scotland, why did not he put down the same Amendment concerning Scotland? Every time the right hon. and learned Gentleman mentions Scotland, he is out of order.

Sir J. Hobson

No doubt, if my point is good for England, the Scots will see how excellent it is and the Bill can be amended in the Lords. I am giving these examples because the Bill will affect both England and Scotland and the principle applies equally to both countries. If Amendment No. 4 is passed for England, it should cause the Government to consider the position concerning Scotland.

I will certainly confine myself to England. I only ask whether it is intended that members of the Bar or solicitors who are chairmen of quarter sessions or recorders must, on being appointed to the Commission, give up those judicial offices. That appears to me to be the effect of subsection (4). I should have thought that that was quite wrong and that it was very desirable that in subsection (4) we should have the opportunity of having both part-time county court judges, part-time members of the Bar who hold judicial office and part-time solicitors who hold judicial office at quarter sessions or elsewhere.

Those are my main points on Amendment No. 2 about why we think that subsection (4) of the Clause should be omitted, but there is the alternative view that while all these arguments against placing persons holding judicial office in this embarrassing position may not wholly preclude their holding the double position, if that is to happen—although we think it is wrong that it should—we say that any person ought not to lead a double life for longer than a limited period, that it is not right for a member of the judiciary to hang on to his high judicial office while he is performing over long periods of years, the functions of a Law Commissioner, and that it is not right that he should retain an office the duties of which he does not perform for more than a period of four years.

It is a bad constitutional mixture in any event to get the judiciary mixed up with the Executive in the way that we are doing, and we should certainly not impose such a mixture on any individual for too long. Three years is plenty. Five years would be one-third of the total pensionable judicial life of a member of the High Court. That certainly would be too long, because it would mean that for more than one-third of his usual period before he gets a pension, a judge would not be performing the functions of a judge.

Therefore, while five years is much too long and we think that three years is ample, we have selected four years because that gives a little more flexibility than the three years. We think that three years is enough, but there may be the odd, exceptional case in which three years would not be quite enough. We therefore think that four years is the absolute maximum period for which any judge holding high judicial office should both retain that office, not performing its duties but drawing its salaries and emoluments, and do other work.

Mr. Grieve

I should like to support my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson), particularly upon Amendment No. 2, and to ask the Minister seriously to consider whether subsection (4) should not be dropped altogether from the Bill. I put my objection to it on the solid constitutional ground that, in my view, it does make considerable inroads into our ancient constitutional principle that the judiciary should be independent. I fully recognise the reasons which have motivated the Minister to suggest that those holding high judicial office should be eligible for service as Commissioners. Quite obviously, there would be very great advantages in having their experience and their knowledge of the law at the service of the Commission.

Nevertheless, if one considers the functions of the Commission, and particularly the functions which are set out in Clause 3 (1, b and e), it seems clear that to appoint holders of high judicial office to the Commission would be both a derogation from their dignity as judges and a breach of their historic independence.

Clause 3 (1, b) provides that one of the functions of the Commission shall be to prepare and submit to the Minister from time to time programmes for the examination of different branches of the law with a view to reform, including recommendations as to the agency (whether the Commission or another body) by which any such examination should be carried out". In other words, the judges are to be taken off the Bench, taken into the corridors of the Ministry, and even put in the position of importuning reforms from the Minister. I put, necessarily in rather derogatory and forceful language, what would seem to have to be done, because to understand what is being done, in my submission one has to take the lowest common denominator, to see the position in which holders of high judicial office will be placed by fulfilling that particular function imposed upon them by that paragraph (b).

Then, turning to Clause 3 (1, e), we see a further function is to provide assistance to government departments and, at the request of the Minister, to other authorities or bodies concerned with proposals for the reform or amendment of any branch of the law". In other words, here there is no derogation from their dignity, but they are to be put in the corridors of the Ministry, helping the Minister out with Governmental functions. This is a complete negation of the doctrine of the separation of powers, or the separation of functions, and to my mind constitutes a very grave inroad into the traditional independence of the judiciary.

For these reasons, I support my right hon. and learned Friend and ask the Minister seriously to consider whether subsection (4) should not be dropped from the Bill.

Sir Eric Fletcher

We have listened to the very interesting speech from the right hon. and learned Gentleman the Member for Warwick and Leamington (Sir J. Hobson), which covered a great deal of ground. I hope he will not think me discourteous if I attempt to deal only with those parts of his speech which appeared to me to be strictly relevant to the Amendment he was proposing.

The effect of his Amendment to leave out subsection (4) would be to make it impossible for my noble Friend the Lord Chancellor to appoint High Court judges or holders of high judicial office as Commissioners. What the right hon. and learned Gentleman failed to point out during the whole of his speech was whether he thought that would be a good thing or a bad thing. Hitherto, I had gathered from all the speeches of hon. and right hon. Gentlemen opposite, both on Second Reading and in Committee, that it was thought that it would be desirable that we should if we could obtain the services of a High Court judge as chairman of the Commission. The right hon. and learned Gentleman failed to indicate whether that was still his view. It is clearly the desire of the Lord Chancellor that we should try to recruit a High Court judge to preside over the Commission. I gather that the right hon. and learned Gentleman does not dissent from that view.

11.15 p.m.

Sir J. Hobson

rose—

Sir E. Fletcher

Does he dissent?

Sir J. Hobson

I thought I had made that plain; if I did not, I am sorry. I absolutely accede to the proposition that a High Court judge—or someone who had been a High Court judge—would be exactly the sort of person who should preside over this Commission. However, I think it is highly undesirable that, while he was presiding over the Commission, he should retain his status as a judge. The only question is whether he retains his dual status while he is presiding, or whether a person who used to be a High Court judge and gives it up would be reappointed to the judiciary if he wanted to go back.

Sir E. Fletcher

The right hon. and learned Gentleman cannot have it both ways. On the last Amendment, he said that he hoped that the Lord Chancellor would not appoint people who were on the way out, and, therefore, that he would not appoint a retired High Court judge. The opposite to appointing a retired High Court judge is appointing someone who is still a High Court judge, still in the vigour of life, and who can be seconded from his judicial functions for a period of years. Therefore, in this part of the Bill, we are doing exactly what the right hon. and learned Gentleman was asking us to do when he moved his earlier Amendment. We think that, if a High Court judge can be persuaded to leave the Bench for a period of years in order to preside over the work of the Commission, it would be a very good thing, for the judge, for the Bench and for the work of the Commission. On these grounds, we resist the Amendment.

I was interested in what the right hon. and learned Gentleman said about the constitutional position, and I agree that it is important to deal with that. But it is not right for the right hon. and learned Gentleman to suggest, as he did, that in seconding a High Court judge for work of this kind we are creating any kind of precedent, or, indeed, doing anything which could possibly create any embarrassment to the judge in question or lead to any violation of the constitutional doctrine about the independence of the Executive and the judiciary, to which, on both sides of the House, we attach importance. In so far as precedents are concerned, it is clearly necessary for me to remind the right hon. and learned Gentleman that there are plenty of precedents—certainly within recent years—of members of the judiciary having been seconded for important extra-judicial work, in the course of which, sometimes, the performance of those duties has produced unfortunate consequences. There was a case, during the Tory régime, in which a very distinguished judge was asked to make an important report of a judicial character about conditions in Central Africa, which was then, unfortunately, disregarded by the Tory Government, and regarded as a political report and not a judicial report, with very unfortunate consequences for the distinguished judge and, I should have thought, for any other member of the Bench who was invited to undertake duties of that kind. On the work of the Law Reform Committee, to which both the right hon. and learned Gentleman and I have paid tribute, and in which a number of judges have done invaluable work in recent years, it has been one of the criticisms of the limited amount of work which that Committee has been able to undertake that judges in the full vigour of their active judicial engagements were unable to devote more than a fraction of their time to its work.

It is for that reason that we think it desirable that, for a spell of years, a member of the higher judiciary should undertake the presidency of this Commission. We think it right that during that time he should retain his status and immunities as a High Court judge, because it is our intention, after a spell of years on this Commission, he should then return, no doubt even better equipped, to the Bench. That situation cannot be brought about unless we have sub-paragraph (4) in the Clause. If another precedent were required for the seconding of a senior member of the judiciary to a purely executive function—which this is not—we would recall, and here I am relying on my memory, that Lord Reading, when Lord Chief Justice, was appointed His Majesty's Ambassador in Washington. [Interruption.] The right hon. and learned Gentleman corrects me?

Sir J. Hobson

He had been Lord Chief Justice and was appointed Ambassador, but he did not hold the two offices at the same time.

Sir E. Fletcher

I agree. But what happened after he was appointed Ambassador in Washington? He came back to the Bench.

Sir J. Hobson

No.

Sir E. Fletcher

I think so. I think that the right hon. and learned Gentleman will find that he was seconded from the Bench for a time as Lord Chief Justice, undertook the appointment as Ambassador in Washington and then returned to the Bench. At any rate, he returned to judicial work.

Sir J. Hobson

Was not the position that, having been Lord Chief Justice, he was entitled to sit in the House of Lords in his judicial capacity, and only for that reason sat in the House of Lords, but did not retain his judicial office as Lord Chief Justice and did not sit again as Lord Chief Justice?

Sir E. Fletcher

Be that as it may, it shows that there is no inconsistency in a member of the higher judiciary leaving the Bench and undertaking a purely executive and political post for a time and then returning to fulfil judicial functions. That is a precedent which goes further than we are suggesting here.

The members of this Commission will not be undertaking executive functions. They will be undertaking advisory functions, advisory to the Lord Chancellor. I do not think that the right hon. and learned Gentleman can seriously suggest that there is any violation of any constitutional principle in our proposition that a member of the High Court Bench should be appointed for a term of years to be a member of this Commission.

Amendment No. 3 is inconsistent with Amendment No. 2. It suggests that if a High Court judge is to be seconded for the work of the Law Commission it should be for a limited period. It is implicit in our proposal that a High Court judge who is appointed to the Commission should retain his functions as a judge and that he should eventually contemplate returning to the Bench. Otherwise those provisions would be unnecessary. At the same time, it seems to us unnecessarily restrictive to place a period of years on his appointment. It might well be that at the end of four years the judge in question was engaged on some work nearing completion which it would be very desirable that he should stay to finish. It seems to us, therefore, very much better that we should not in this matter interfere with the discretion of the Lord Chancellor for the time being as to the period of time during which anybody in this position should be seconded from the Bench to the Commission. We believe that this method of cross-fertilisation between the Bench and the Commission would be of mutual advantage. I hope that I have said sufficient to persuade the right hon. and learned Gentleman not to press the Amendment.

Mr. St. John-Stevas

I support the very important constitutional argument put forward by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson). It is highly undesirable for this blurring of the distinction between the judiciary and the Executive to be imported into our Constitution. The line is blurred, it is true, at other places, blurred in particular on the Woolsack, I suppose, where we get an anomalous position; but the existence of one anomaly is not a reason for introducing further anomalies.

The precedents produced by the Minister without Portfolio, apart from what did or did not happen to Lord Reading, are singularly inappropriate, since the appointments in those cases—he referred to the appointment of Lord Devlin, for example—were of a very strictly temporary character, whereas the appointments to the Commission, while not being of a permanent character, would be more than of a strictly temporary character to serve for a period of months and would fall into the category of semi-permanent. There a real danger that if controversial matter entered into the deliberation of the Law Commissions, the independence of the judiciary or the judge involved might well be compromised.

The second objection is this extraordinary provision that the person, the high judicial officer, appointed to the Commission should retain all the privileges of his position without the duties. That seems most extraordinary because, after all, the privileges exist for one purpose only, to enable the holder of the judicial office to discharge his duties more adequately. That seems to me to be another objection to this Clause, and I do not see any inconsistency in the argument put forward by my right hon. and learned Friend in wanting those who have held judicial office recently to serve on the Commission. His objection centres on these words that they may be "appointed as a Commissioner without relinquishing that office".

I hope that these arguments, which reinforce those of my right hon. and learned Friend, will prevail upon the Minister without Portfolio to give this matter second thoughts.

Sir Knox Cunningham

I want to speak on Amendment No. 2 which seeks to delete subsection (4), which says: A person who holds high judicial office may be appointed as a Commissioner without relinquishing that office, but shall not be required to perform his duties as the holder of that office while he remains a member of the Commission. That is a thoroughly bad Clause and one which should be deleted. I think the Minister without Portfolio has missed the point. What it says there is that a holder of high judicial office, a Lord Justice of Appeal or a Judge of the High Court, shall be in suspended animation, be put in deep freeze for a certain period. He will, during the period of suspended animation, and I come to Clause 3(1)(e). be required: to provide assistance to government departments and, at the request of the Minister, to other authorities or bodies concerned with proposals for the reform or amendment of any branch of the law;". At the request of the Minister he may be asked to provide assistance to other bodies concerned.

We have not heard what these other bodies will be, or what type of assistance he will be required to give, but it seems to me that this is very much a breach in the constitutional position whereby a person who is appointed to high judicial office—and this has been so over a great number of years—is entirely independent. He is on the Consolidated Fund, he cannot be removed except by Motion of both Houses. Now he is still to hold that office but is to be given other duties to perform at the request of a Minister of the Crown. There could be no more mixing of his duties than that he should be receiving orders from the Executive while still holding his position of independence. I would have thought this to be a most disastrous innovation, and I would certainly think that the Minister without Portfolio should think again.

Even if he will not think again tonight, I think the Government should think again and take out this subsection when the Bill goes to another place. I strongly support my right hon. and learned Friend on Amendment No. 2.

11.30 p.m.

Sir E. Fletcher

In reply to the hon. and learned Member for Antrim, South (Sir Knox Cunningham), I rather agree that it would be an inconsistency for a High Court judge to act as such while he was a member of the Commission. This raises the point mentioned by his right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson), who asked whether it was ever contemplated that a High Court judge should serve in a part-time capacity. It would certainly not be the intention of the present Government, and I would have thought that there would be a constitutional inconsistency in a High Court judge serving as a part-time member of the Commission; and being at the same time a member of the Commission and also functioning as a judge.

I ask the hon. Member for Chelmsford (Mr. St. John-Stevas), following his observations, to realise that the Government think it highly desirable that, if possible, a High Court judge should be persuaded to accept the chairmanship of this Commission. We consider that it would be difficult to persuade anybody in the position of a High Court judge to accept such an appointment other than for a limited time. It is, therefore, a matter of practical necessity as well as commonsense that a person seconded for a short period to the Commission should retain his status of a High Court judge so that after having served on the Commission he could revert to the constitutional position of irremovability and so on and the position he had relinquished for the time being.

Sir J. Hobson

With the leave of the House, I merely wish to point out to the Minister, with respect, that he has given the game away. He first of all says that it is constitutionally wrong for a judge to sit part-time as a Law Commissioner. I should have thought, a fortiori, that it would be wrong for him to sit full-time and then return to his office. The Minister says that it is necessary for him to retain his office so that he may return to it. Surely the Government only need to make some provision—not in this Statute but in the one concerning the pensions of judges—whereby if a judge gives up his judicial office to become a member, permanent or part-time, of the Law Commission, on returning to his previous office his previous service would be aggregated with his subsequent service for his pension. It would, therefore, be possible to deal with this matter by way of pension because a judge's salary would have been provided for. The Government would not then have to go to all the trouble of the Bill.

I am bound to say that I think it constitutionally wrong that, whether part-time or full-time, a person in a judicial position should work for the Law Commission yet not be performing his judicial functions and yet should have the status, rights, privileges, pension and all the rest of his office as a High Court judge.

It is secondment to which my hon. Friends and I object. It should not be secondment. He should, when no longer functioning as a High Court judge, cease to be one—and provision must then be made to deal with the position, when it arises, of his return to office.

Amendment negatived.