LAW COMMISSIONS BILL

HL Deb 14 April 1965 vol 265 cc399-417

3.15 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair.]

Clause 1:

The Law Commission

1.—(1) For the purpose of promoting the reform of the law there shall be constituted in accordance with this section a body of Commissioners, to be known as the Law Commission, consisting of a Chairman and not more than four other Commissioners appointed by the Lord Chancellor

(2) 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.

(4) 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.

THE EARL. OF SELKIRK

moved, in subsection (1), after "the law" to insert "of England". The noble Earl said: I am moving this Amendment because the working of this clause seems a little curious. This Bill applies, so far as I can see, to the whole of the United Kingdom, with the exception of laws which can be amended by the Parliament of Northern, Ireland. We are told in the Explanatory Memorandum that there will be an English and Scottish Law Commission. I should like to know why the Parliamentary draftsmen are so coy that they do not want to use the words, "the Law of England". It is a very respectable phrase, which is held in extremely high regard in many places outside this country. If the Chairman of the Com mission goes to France to talk to the Minister of Justice, who asks, "What are you here for?", and he says, "I want to compare the Code Napoleon with the law", the Minister of Justice would, of course, say, "The Code Napoleon is the law".

I should have thought that it was just as well to be clear on this matter. But I think there is one detail which is even more important. Many places overseas hold the law of England in very high regard. It is practised, with modifications, in a great many countries. I believe it is the intention that they may perhaps take advantage from the work of the Law Commission, and that they may possibly in some cases follow the advice and guidance which is given. In those circumstances, I think it would be proper that the law referred to should be given its proper name. I have made the case, and I must be quite frank in saying that I do not want the Scottish Commission to be a sub-committee of the Law Commission. I want it to be quite clear that the Law Commission is dealing with the Law of England, and not vaguely trying to absorb, willy-nilly, the law throughout this Island into one. If I could have that assurance, I should be very grateful. I beg to move.

Amendment moved— Page 1, line 5, at end insert ("of England").—(The Earl of Selkirk.)

THE LORD CHANCELLOR (LORD GARDINER)

I Should like at once to give the assurance that the Government do not propose that the Scottish Law Commission should be in any sense a subcommittee of the English Law Commission. On the contrary, we are most anxious—and I personally am most anxious—not to offend any Scottish sus-ceptibilities. I think that all English lawyers are brought up to believe that Scottish law is better than English law, and I have no reason to doubt that that is so. So we always have rather an inferiority complex about Scottish law.

In this situation, I must, like Agag, walk delicately, and if I may approach the subject so courteously I would remind the noble Earl that we have in England a professional organisation for the English Bar, called The General Council of the Bar of England and Wales. I hesitate to remind Scotsmen of the fact that Wales is there, and if one begins talking about the English Bar Council one gets into a great deal of trouble; and it is not only Scottish susceptibilities that one does not wish to offend. For the law of Wales is just as much the law as the law of England. It is the same law, but it is also the law of Wales. We could, of course, have one Law Commission for England and Wales, and one for Scotland; or we could have one for England and another for Scotland and Wales. A Commission for Scotland and Wales would not be very practicable, because the law of Wales is the same as the law of England, and is quite different from the law of Scotland.

One could call it the Law Commission of England and Wales but, again, I am sorry to have to refer to the fact that there is a place called Northern Ireland. We do not always realise for what a lot of the law of Northern Ireland this Parliament of ours is responsible, because under Section 4(1) of the Government of Ireland Act, 1920, the Northern Ireland Government: cannot legislate in matters of:

1. "(1) The Crown or the succession to the Crown, or a regency, or the property of the Crown…
2. (2) The making of peace or war, or matters arising from a state of war; or the regulation of the conduct of any portion of His Majesty's subjects during the existence of hostilities…
3. (3 The navy, the army, the air force, the territorial force…
4. (4) Treaties, or any relations with foreign states, or relations with other parts of His Majesty's dominions…
5. (5) Dignities or titles of honour; or
6. (6) Treason, treason felony, alienage, naturalisation, or aliens as such, or domicile; or
7. (7) Trade with any place out of the part of Ireland within their jurisdiction.
8. (8) Submarine cables; or
9. (9) Wireless telegraphy; or
10. (10) Aerial navigation; or
11. (11) Lighthouses, buoys or beacons
12. (12) Coinage; legal tender; negotiable instruments (including bank notes) except so far as negotiable instruments may be affected by the exercise of the powers of taxation given to the said Parliaments;
13. (13) Trade marks, designs, merchandise marks, copyright, or patent rights; or
14. (14) Any matter…declared to be a reserved matter…"—

which includes the Post Office. Obviously, some Law Commission has to be responsible for that.

Again, we could have one Law Commission for England and Wales, and another for Scotland and Northern Ireland. This, of course, was carefully considered by the Government, advised by the chief Parliamentary draftsman, who was kind enough to draft this Bill himself. But there must be a Commission to deal with Acts for Great Britain, such as the Income Tax Acts and the Merchant Shipping Acts, and it would be unfortunate if two Law Commissions were to be appointed, and it were then found that there were a number of Acts with which neither of them could deal. There has therefore to be, as it were, a main Law Commission; and the draftsman, I suggest, is right in saying in subsection (1) that the Law Commission shall be constituted for the reform of the law. Then when one asks the question, "What do you mean by ' the law"? "the answer is contained in subsection (5)… In this section 'the law' does not include the law of Scotland or any law of Northern Ireland which the Parliament of Northern Ireland has power to amend. I hope that, having heard that explanation, the noble Earl will be satisfied. We certainly did not intend in any way at all to offend the susceptibilities of Scotland. The Scottish Law Commission will certainly be of an equal status to the other Law Commission. It certainly will not be a sub-committee, or anything of that kind; it is an entirely separate, independent statutory body. But we are faced with the difficulty that one must find some way of defining what is the law for which each is to be responsible. In a sense there has to be a main Commission. Of course, where Acts of Great Britain are concerned obviously the two Commissions will work closely together, and indeed that is specifically provided for in the Bill itself. For example, when one comes to consolidation there may be a great deal to be said for their both acting together at the same time. In the past the tendency has been rather for the laws of this country and Wales and any reserved in respect of Northern Irish law to be dealt with first and then for consolidation to follow in Scotland two or three years later. It may be that a lot could be said for dealing with them at the same time.

Your Lordships will know that we have recently had a Solicitors Bill for the purpose of overcoming difficulties which have arisen since the decision in your Lordships' House in the case of Brown v. Commissioners of Inland Revenue. There is now a fresh Bill being introduced into your Lordships' House by the noble Viscount, Lord Colville of Culross, to do exactly the same thing in Scotland. It might have been simpler to do the two things together. I am sure the two Commissioners will work very well together; and I hope that, with that explanation, the noble Earl will think it right to withdraw the Amendment.

LORD AIREDALE

So far as Wales is concerned, it came first in the argument of the noble and learned Lord the Lord Chancellor, and I do not know whether that is an indication that it is the most important. Can the noble and learned Lord tell us why it was that one of his predecessors found it quite satisfactory to call his distinguished book Halsbury's Laws of England rather than Halsbury's Laws of England and Wales?

THE LORD CHANCELLOR

I have a great many distinguished predecessors, but I am afraid I cannot undertake responsibility for them. I do know, for the reasons mentioned, that our friends in Wales tend to be somewhat touchy on these matters.

THE EARL OF SELKIRK

I am grateful to the noble and learned Lord for his explanation. If this is purely a question of definition, I have no point so long as the matter is abundantly clear. However, I hope he will recognise that the Explanatory Memorandum gives a different story, and this means that in certain respects it is wrong. I hope he will not take exception to my raising this point because I think it is one of importance. I think the explanation he has given answers my point, and I therefore ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

3.26 p.m.

VISCOUNT DILHORNE

moved, in subsection (1), to leave out "not more than". The noble and learned Viscount said: I can put the case for this Amendment quite shortly. All through the debates on the Bill we have been talking of five Law Commissioners, and yet as this Bill is drawn it merely provides that five shall be the maximum number —four and the chairman. The Law Commission could therefore consist of one Law Commissioner, or perhaps two Law Commissioners, charged with the duty of the reviewing of the law of England and with the other duties laid down in Clause 3 which we shall be considering perhaps later this afternoon. I think it is wrong that this Bill should be drawn in this way. I cannot see any reason for it. If there is a good reason, I hope the noble and learned Lord will tell us what it is, but I think that five is the minimum number of Law Commissioners needed if they are to discharge their task.

I am confirmed in my belief that this Amendment is right and the Bill is wrong by some very substantial evidence —namely, the Government's own White Paper which was published to tell us what the Government propose. The White Paper is entitled Proposals for English and Scottish Law Commissions, and at the bottom of page 2 of that White Paper one finds this: The Government therefore propose, subject to the approval of Parliament, to set up a Law Commission for England and Wales. This will consist of five lawyers of high standing appointed by the Lord Chancellor…". This will consist, so it says here, of five lawyers of high standing appointed by the Lord Chancellor; and the purpose of this Amendment is to make this Bill agree with the Government's declared intentions in their White Paper. Therefore, it cannot be suggested that if this Amendment is agreed it will in any way operate to frustrate the intentions of the Government. I beg to move.

Amendment moved— Page 1, line 8. leave out ("not more than"). —(Viscount Dilhorne.)

THE LORD CHANCELLOR

This is mainly a question of terminology. There is no difference between us as to the intention. The question is whether one puts into an Act of Parliament the general intention, or whether it is so worded as to leave room for exceptional circumstances which may arise yet cannot always be foreseen. It is the Government's intention that five Law Commissioners should be appointed. We think that five is the right number in any ordinary circumstances. There is no dispute about that at all. It is my expectation that five will in fact be appointed. but more often than not where statutory bodies are constituted it is usual to provide for "not more than" a certain number. There has to be a statutory maximum for financial reasons. The Treasury naturally require to know what the maximum number is going to be, and where a statutory body is being constituted that body can operate lawfully only if it is properly constituted. Therefore if one says it must always have exactly five, allowance has to be made for the fact that when somebody dies or retires some time will elapse before he can be replaced.

I agree this is not an insuperable objection. It can be said that there are to be exactly five but if one of them dies or retires the Commission may continue to operate with four members for a month, or whatever period is laid down. However, the usual thing to do is to say "not more than" so many. Everybody then knows that that is intended in general to be the number. But if this Amendment were accepted and a further Amendment made the position would be that when somebody died or retired the Law Commission would no longer be constituted in accordance with the provisions of the Bill and could do nothing further at all until somebody else had been appointed.

As I have said, in general the intention is that there should be five, and the Government will certainly appoint five. But one can never quite tell, looking ahead to the future. It might be that there was some outstanding solicitor whom the Lord Chancellor had been trying for some years to persuade to be a Law Commissioner. A vacancy arises because somebody dies or retires, and the solicitor is persuaded at last and says, "Very well, I will; but of course there are all my outstanding matters with my clients and I must have six months to clear up my affairs. If you can wait six months, I certainly will". That might be a sensible course for the Lord Chancellor to take. It might be three months. One can never foresee the circumstances. It might be that in ten or fifteen years' time the quantity of work to be done would be such that it could be managed by three.

Certainly I agree that over a period of time five is the right number, but I suggest that room should be left so that exceptional circumstances can he provided for. It is not, I observe, suggested that the Scottish Commission should be tied to a fixed number; that is to be not more than five. I should have thought that was the sensible thing to do. I hope, therefore, that the noble and learned Viscount will be satisfied with the declaration of intent I have made, because there is no difference between us as to the general intention.

VISCOUNT DILHORNE

I must confess that I am not really satisfied by that answer. The answer is indeed on the lines I suspected it might be. The noble Lord says that this Government's intention is to appoint five. As the Bill is drawn there is no need to appoint more than one, and you can have your Law Commission. I think the Bill should state what number there should be. I appreciate the difficulty of the circumstance that you may have a sudden vacancy; I agree a further Amendment would be required to provide for that. But I see no objection to saying that the Commission should consist of four plus a chairman, and the addition of a provision to say that the Law Commission will be entitled to carry on and perform notwithstanding a casual vacancy.

I should not personally want to provide for a period, but I should like a stipulation here. I appreciate that the Government's intent is the view expressed in the White Paper and the view I am putting forward, but the Bill does not say so, and I think it should. If the noble and learned Lord accepted this Amendment, we could find some way perhaps of making a provision which would cover the exceptional circumstances he was contemplating. It would certainly not be my desire, indeed it would be unacceptable, that the Law Commission should cease to function because of the sudden death of one, or two, or three Law Commissioners. I entirely recognise that to cover that eventuality it might be necessary to put down a further Amendment.

That is quite a different point from the point whether the Bill should state what should be the number of Commissioners, bearing in mind that this may remain an Act during the lifetime of many other Governments, when people may not be able to remember the assurance given by the noble and learned Lord during the course of the passage of this Bill. I therefore think it is necessary and right that the statement of the Government's intention should be embodied in the Bill when it becomes an Act. I make no objection, indeed I welcome, a provision to provide for the kind of circumstances which the noble Lord envisaged in resisting the Amendment. He made some reference to Clause 2, which deals with the Scottish Law Commission. We can deal with that when we come to Clause 2. I am dealing here only with the Law Commission for England and Wales, and I ask the noble Lord to give further consideration to this matter.

VISCOUNT SIMONDS

As the Amendment is in my name as well as that of my noble and learned friend, perhaps I may add this. I think it is a thoroughly bad principle to give powers, upon the grounds of flexibility or any other grounds, that are so wide that if they are abused they are very dangerous. It is open to the noble and learned Lord the Lord Chancellor to reduce the Law Commission from the number of five stipulated in the White Paper to three. We should object to that most strongly. Therefore I think it ought to be made mandatory on the Lord Chancellor to appoint five Law Commissioners. Of course, the event may happen which he has indicated, that one may die or be ill or cease to serve for any other reason. But there is no difficulty whatever in putting in a provision, if the noble and learned Lord so wishes, that the reduced number may act—I think the time should be limited, for three months or something like that—until the number has been filled up again. Therefore I certainly suggest to my noble and learned friend that he should adhere to this Amendment and, if necessary, divide the House upon it. I think we are agreed that the number should be five, and therefore we should ensure that the number shall be five.

LORD SILKIN

I think there is no doubt at all that we all believe that five is the right number at the present time. But we have no assurance as to what will eventually turn out to be the proper number. It would be wrong to tie the hands of the Lord Chancellor to such an extent that he must have five, even where later events establish that they are not necessary. I do not believe that that will happen, but it could be that five would be a completely unnecessary number. The Lord Chancellor ought to be free to decide for himself, as experience dictates, what is the proper number to have, so long as it is not more than five. This is an Amendment designed, and there are a good many others on the List which are all designed, to fetter the hands of whoever is in control at the time. I see three former learned Lord Chancellors in the Chamber at this moment, and I am quite sure that not one of them would have accepted an Amendment of this kind.

VISCOUNT SIMONDS

I am quite sure I would, if I may say so.

LORD SILKIN

I think the noble and learned Viscount has forgotten what he was like in the days when he was in that position. I myself have moved similar Amendments and I know exactly what he said in those days. He said, "These are my intentions, and you can rely on me to act with good sense and responsibility, but it is wrong to fetter the Government."

VISCOUNT SIMONDS

I think the noble Lord's memory is failing him.

LORD SILKIN

I do not think so. I have been on both sides. I have been on the side where I have moved Amendments of this kind; I have been on the side where the Opposition have moved similar Amendments, and the answer has always been the same: these are matters which must be dictated by experience and judgment, and we must rely on the holder of the office, the Lord Chancellor or whatever other position it is, to act with responsibility as experience dictates. I think the Committee will realise that five is accepted at the present time as the right number, but it may not always be so; and it might then be that noble Lords opposite would be the first to say that five were unnecessary and the job could be done with fewer. I do not think this contingency will arise for a good many years, but there may come a time when it will, and I think there should be flexibility.

3.40 p.m.

THE EARL OF SWINTON

The noble Lord, Lord Silkin, has made a most interesting speech, but your Lordships will have observed that it was an entirely different speech from the one the noble and learned Lord the Lord Chancellor made in defending the form of his clause. The Lord Chancellor said, quite clearly, as the White Paper said, that he had every intention of appointing and keeping five Law Commissioners. That is a perfectly clear statement. The noble Lord, Lord Silkin, has said he ought not to be committed in that way; he may easily find five is the wrong number.

THE LORD CHANCELLOR

I said very plainly that after many years it might well be found that they had got so far on with their work that three would be enough. My noble friend Lord Silkin is saying that experience will show; he is saying what I said.

THE EARL OF SWINTON

Of course, if the Lord Chancellor does not want to be committed to a particular number that is quite a different thing, and that may or may not be right on merits. But what I wanted to point out was that there is a good deal of precedent for what my noble and learned friend Lord Simonds has said for putting it in the Bill, whatever is the intention. I would remind the noble Lord, Lord Silkin, that when Lord Jowitt was Lord Chancellor he constantly said, whether dealing with our legislation or legislation of his own, "If that is the intention, why not put it in the Bill?" I am not asking the Lord Chancellor to commit himself to saying, "I am always going to have five", if he thinks he ought not to have five. That is a matter of merits. But I suggest that the intention, whatever it is, ought to be put into the Bill.

LORD TANGLEY

I speak on this Amendment as a wholehearted supporter of this Bill. I believe that these Law Commissioners ought to succeed, and I earnestly hope that they will. If they are to succeed, I believe they must satisfy three conditions. I believe that they have to win and gain and hold the confidence of the Lord Chancellor; they have to win and gain and hold the confidence of Parliament, and they have to win and gain and hold the confidence of the public. I look on all these Amendments in that light. Not only does the question of numbers arise on these Amendments, but the question of the composition of the Law Commission arises. We have it quite clearly laid down that the Law Commission is to be appointed from among judges, solicitors, barristers and academic lawyers. I greatly hope that we shall see a blend of these different kinds of people on this Commission. That cannot be done with two commissioners, nor with three commissioners. It can just be done with four commissioners. To be quite sure, you must have five.

I believe that the Law Commission would command far greater confidence with Ministers, with Parliament and with the public if the real intention that there should be five Commissioners was laid down in this Bill. If not, at some time we are going to have a judge, or a barrister, or a solicitor, or some academic lawyer left out. If we are going to get the blend we must have five. I do not believe we can get the confidence which this Commission needs unless we have that blend, and that therefore we must have five. I earnestly believe that the Government, in the interests of this Bill, would be well advised to accept this Amendment. What I am saying colours my mind on this Amendment as on many other Amendments, in spite of the blandishments which the Lord Chancellor held out to solicitors. I do not think that the Government really ought to oppose this Amendment.

THE LORD CHANCELLOR

I am quite prepared to look at this again, but I do not feel able to give any undertaking. There is no real difference of opinion between us except that I trust future Lord Chancellors much more than the noble and learned Viscount, Lord Simonds, does. They will be men of discretion and good sense, and I have no doubt that for a period of years five will be the right number. But, as I pointed out, if you have an Amendment of this kind it means that, on a death or retirement, the whole thing stops until there is a reappointment. Of course, that could be covered by a further Amendment, but this Amendment as it stands would make the Bill hopeless.

The noble and learned Viscount, Lord Dilhorne, says "Well, let us have a further Amendment providing for an exception until a casual vacancy has been filled". But then he declines to say how long that period is going to be. Does this not show the difficulty, which we all appreciate, that one does not know exactly what circumstances may arise from time to time and therefore does not know whether to provide for two weeks or two months? Would it not be right to leave these matters to the good sense of the Lord Chancellor of the day, just as we are doing in the case of the Scottish Commission, which nobody has suggested should comprise other than "not more than five" Commissioners. But we intend five: there is no real difference in intention. The sole question is whether we are to try to have some detailed Amendments to provide exactly how long, after a death or retirement, the Lord Chancellor of the day may take to fill the vacancy.

Here is a new body. We shall know more about it when we have had some years of experience of it. The day may come—it may be ten or fifteen years hence—when, having got through most of their work, it will be found that three will be enough. I am quite sure that it will not be for years. On these grounds, I am certainly prepared to reconsider it in the light of what the noble and learned Viscount says, but, I am afraid, without being able to give any undertaking about it.

VISCOUNT DILHORNE

That is a small step forward, but I had hoped that the noble and learned Lord would take a larger step. He has again resisted the idea that the number of Law Commissioners should be specified in this Bill. I think it should be specified. I do not think that prescribing the number is in any way a reflection upon what future Lord Chancellors may or may not wish to do. It is an expression of Government opinion at this time as to what is the correct number. It may be that in thirty years' time—one cannot tell—the number may be reduced. It will always be possible to bring in a small amending Bill if that is required. But it is no good arguing against this particular Amendment, which would bring the Bill into line with the White Paper, to say that if this Amendment is carried into the Bill it will be necessary to make some provision for exceptional circumstances. That, I am sure, can be done, and will be done, if this Amendment is carried into the Bill.

The noble Lord has said that he will look at it again, but without giving the slightest undertaking that he would put down some provision to ensure that the number of the Commissioners is stated in the Bill to be five. Indeed, he has done a great deal to advance arguments against taking that course. I do not feel satisfied with that. I think the right course is to make the Bill accord with the White Paper, and then, at a later stage, as we can—or, indeed, in this Committee stage—put in a provision (I am not trying to draft it while I am on my feet, but Parliamentary Counsel have great skill in these matters) to ensure that the Law Commission do not cease to function because of what I may call a casual vacancy. If the noble Lord cannot go further than he has done, and undertake to put something in this Bill to show the number, I feel that I have no alternative but to press this Amendment.

THE LORD CHANCELLOR

I suggest to the Committee that this is really being rather unreasonable. I say that I am quite prepared to consider the Amendment. I come here to meet an Amendment. When I get here it is accepted that the Amendment proposed is hopeless—

VISCOUNT DILHORNE

No, it is not.

THE LORD CHANCELLOR

Then I am told that it is correct that you cannot constitute a statutory body which cannot operate at any time when it is not properly constituted; that you must have the exact number, and you must provide accordingly. The only Amendment proposed is to the phrase "not more than". In effect, it means four others exactly. It is agreed that that will not do. It is agreed that if you wanted that you would have to provide that during a vacancy by death or retirement there must be some period, long or short. It is agreed that there must be such an Amendment and, when I ask for time to consider it, I am then told "No, the Committee ought to divide", it being agreed that no Amendment has been put before the Committee which could make sense of the Bill. I think it is unreasonable.

3.50 p.m.

VISCOUNT DILHORNE

I am sorry the noble and learned Lord feels that. This Amendment was put down, I think, on the very same day as the Second Reading debate. The noble and learned Lord has had all the time from then until now to consider it. I have no doubt that he has considered it. This Amendment is not hopeless. It achieves its object of prescribing the number of Commissioners. It is quite true the noble and learned Lord's only ground for resisting it is that he thinks that a consequential Amendment is required. Well, that consequential Amendment can no doubt be made. I do not think it is unreasonable to ask the noble Lord for an assurance that he will put into the Bill a provision showing that five is to be the number of Commissioners. If he is not prepared to give that assurance I am afraid I must press the matter.

LORD SILKIN

I must say that I remember moving many Amendments of this kind and the noble and learned Viscount was prepared to give an undertaking to consider it; but I do not remember a single occasion when he was prepared to go further than that. He would never give an undertaking that the Amendment which we had moved from this side would be accepted in principle and that he would put down consequential Amendments. We certainly never got that from noble Lords opposite. We were perfectly satisfied—

VISCOUNT DILHORNE

If the noble Lord will forgive my saying so, I think his memory is defective. On occasions I am sure I have given the clearest indication that, whilst perhaps I could not accept the Amendment in the form tabled, I would certainly try to meet it at a later stage. I am sure that that is within the noble Lord's memory.

LORD SILKIN

I know that I am getting very old, but I do not think that my memory is defective. I cannot remembed a single occasion when noble Lords opposite have said, "We will accept this Amendment in principle "which is what the noble and learned Viscount is really suggesting. When noble Lords opposite have been prepared to reconsider a matter we have been prepared to withdraw the Amendment, but they were always careful to say that they would give no undertaking as to what they were going to do.

LORD CARRINGTON

I have never before intervened on so technical a matter, but I am rather at a loss as to what the noble and learned Lord Chancellor is going to consider. Is he going to consider ways and means of doing what my noble and learned friend wants, or whether or not he wants to do what my noble friend wants? He has had ample time, as I understand it, to consider the merits of the case which he rejects. But if he is saying that he is going back to see how best he can implement what my noble and learned friend wants, then that is rather different.

THE LORD CHANCELLOR

The Amendment I have come here to oppose —and, after all, the Opposition have had plenty of time to think out the terms of their Amendment—is agreed to be a hopeless one.

SEVERAL NOBLE LORDS: No.

THE LORD CHANCELLOR

Yes: it has been agreed that there must be some provision for the Commission lawfully to continue and to remain lawfully constituted after a vacancy. The noble and learned Viscount has said, "Let us put in an Amendment to say that the Commission can continue to operate during a casual vacancy." I have had no opportunity to consider whether that is the right way to tackle the thing, or whether we ought to provide for a specific period. Surely if somebody is going to put down an Amendment it is his business to put it down in a workable form. And to come here and say, "I agree that there must be an addition but I cannot tell you at the moment what I think the addition ought to be because I have not thought it out myself", and to suggest some general phrase about a casual vacancy, is not, I suggest, treating others fairly. I desire an opportunity to consider whether or not I think this would be practical.

VISCOUNT DILHORNE

May i say this to the noble and learned Lord? He has repeated several times that this Amendment is agreed to be hopeless. That is not agreed at all. All the Amendment seeks to provide is that the Commission shall consist of a chairman and four members. If that is a hopeless provision in the Bill, then Section 2(2) of the Coal Industry Nationalisation Act must also be a hopeless provision. That reads: The Board shall consist of a chairman and eight other members. There can be no doubt that there is provision in the Coal Industry Nationalisation Act as to what should happen in the event of a casual vacancy. But this Amendment is dealing with who shall constitute the Commission. There can be nothing hopeless about moving an Amendment to say that it shall consist of a chairman and four other members when there is a precedent in Socialist legislation in relation to the Coal Board saying that the board shall consist of a chairman and eight other members.

THE LORD CHANCELLOR

The noble and learned Viscount has himself said that the Coal Act contains specific provisions about retirement, so I understood.

VISCOUNT DILHORNE

I did not say that. I said that doubtless it does. I have not turned my hand to it at the moment, and if it does it will be a precedent for this Bill. But we can discuss only one Amendment at a time. The noble and learned Lord really must not say that this Amendment is hopeless or that it is agreed to be hopeless when there is this very good precedent for it.

THE LORD CHANCELLOR

With great respect, it is not a precedent if in a Bill there is a specific provision as to what is to happen on death or retirement. It is precisely because this point has not been taken in the Amendment that I have not had any opportunity to see what the precedents are.

LORD OGMORE

I think that the Opposition are being a little unrealistic in this matter, and indeed unfair to the Government. I have been in Government in this House, and I have also been in Opposition for many years, and time after time I have heard this sort of case put to the Government. If the spokesman said, "I should like a little time to consider it", invariably the Opposition has allowed him that opportunity. It would be quite improper on an occasion like this to confront the noble and learned Lord the Lord Chancellor with a matter of this sort and put a pistol to his head. He has said that he wants time to consider it, and I think that the Committee should give him time. There will be another stage in the Bill. I do not think that we should harass him in this way. He has a difficult task to perform and I think we should try to help him. I have no doubt that after consideration the Lord Chancellor will come back and if he can meet the wishes of the Opposition will do so. I hope that the Committee will not divide, but if it does divide I trust that the majority will support the Government.

LORD CARRINGTON

If I may intervene once more, may I ask the noble and learned Lord the Lord Chancellor the same question I asked before, because inadvertently I think that he did not answer it. Is he going away to consider means whereby he can put into effect what so many noble and learned Lords have suggested should be in the Bill? I am no lawyer, and perhaps the Lord Chancellor is right in saying that this Amendment will not do. Is he going away to seek an Amendment to do what my noble and learned friend wishes to see put in the Bill, or is he going away to decide whether or not he agrees with my noble friend in principle?

THE LORD CHANCELLOR

I am going away, it being agreed that this Amendment will not do without a further one. I am going away to consider the precedents. When I have considered the precedents I shall then be able to decide whether or not I think they can be applied to this case, without making it virtually impossible for a Lord Chancellor to take advantage of whatever the circumstances may be.

VISCOUNT DILHORNE

May I say—

LORD CITRINE

Is this a duet? I was going to ask whether this Bill is properly entitled "Law Commissions Bill". It seems, on the face of it, that it should be called "Prevention of Unemployment among Lawyers Bill". Everybody who has spoken on this, with the exception of the noble Lord, Lord Carrington, is a lawyer. We have heard it said that it is hoped that provision will be made for the solicitors' branch as well as the barristers' branch in the Law Commission which is to be set up. I have heard of these demarcation questions from time to time, and no doubt the matter can be resolved. The point at issue here is a matter of phraseology in the Bill, phraseology which is common form. I have met it time and again in nationalisation legislation, where the size of a board was described as "not more than…", leaving it to the Minister subsequently to determine the appropriate number. It is evident that noble Lords opposite have no confidence whatever either in the sense of fairness of the Lord Chancellor or of the equity of this subject as viewed by those on this side of the House.

VISCOUNT DILHORNE

The noble and learned Lord did go a little further to meet us in answer to my noble friend Lord Carrington. If I understood him correctly, he will endeavour to see whether he can meet the point of this Amendment—that is to say, to put in a provision saying that there shall be a chairman and four other Commissioners. There is precedent for that in the Coal Industry Nationalisation Act, and he wants time to consider whether he can make the consequential provision for a casual vacancy which we have been debating. If that is the position, I should be the last to deny the Lord Chancellor the opportunity of considering that further provision. I think that is going a little further than he went originally. If that is the position, I think I can save time by asking now for leave of the Committee to withdraw this Amendment.

Amendment, by leave, withdrawn.

House resumed.