HL Deb 14 April 1965 vol 265 cc425-77

4.20 p.m.

House again in Committee.

VISCOUNT SIMONDS: moved, at the beginning of subsection (2), to insert: The Chairman shall be the holder of high judicial office and".

The noble and learned Viscount said: The noble and learned Viscount, Lord Dilhorne, has asked me to move this Amendment which stands in our joint names. It is, I hope, a wholly peaceable Amendment. It seeks to ensure that one of the members of the Law Commission shall be a person holding "high judicial office" and that, being a member, he shall be Chairman of the Commission. I think that of the latter point there can probably be little doubt. When I first read the Bill I thought that as a matter of course a person holding high judicial office would be a member of the Commission. It seemed to be implicit in the several references—for instance, in Clause 1(4), in Clause 2(4) and so onto a person holding high judicial office. It seems to me clear that he would be a member. But upon further reading, I think my assumption was incorrect and that under the Bill as it stands it is left open to the Lord Chancellor to appoint a person holding high judicial office or not, as he likes.

Let me assure the noble and learned Lord the Lord Chancellor that although I greeted this Bill on its Second Reading with restrained enthusiasm, yet I would have him regard me as a partner in this undertaking now. I hope that he will not regard me as a hostile witness. I therefore want this Bill to be a success. I want the Law Commission to work smoothly and effectively. I am quite sure, as my noble and learned friend Lord Tangley said a short time ago, that it is essential to its smooth working that it should have the confidence of Parliament and of the public, and, above all, of the legal profession. Of one thing I am very sure: that the best way to secure that confidence is to ensure that one of Her Majesty's Judges should be a member of the Commission and should be the Chairman.

Perhaps it is not for me to say so, but I sincerely believe that there is no body of persons who have the confidence of Parliament and of the public in the same degree as have Her Majesty's Judges. As I say, it is perhaps not for me to say so, but, in the words of the old saying: "Conscious as we are of each others infirmities, we are yet proud we should stand so high in the public esteem". I do not know whether it is through a mistake of drafting that the Bill does not ensure that a person holding high judicial office should be automatically a member of the Commission—perhaps the noble and learned Lord the Lord Chancellor will tell us that. I see no reason why that should not be done. I beg him on this occasion to be conciliatory: not to take further thought, but to agree with the Amendment I am moving. It seems to me to be an Amendment which ought to commend itself to anybody, and I think that I shall be bound to press it. I beg to move.

Amendment moved— Page 1, line 10, at beginning insert ("The Chairman shall be the holder of high judicial office and").—(Viscount Simonds.)


Naturally, I have thought a great deal about the Law Commission for many years, and for many years I have been trying to get it. Naturally, I am enthusiastic for it, and naturally I am most anxious that it should be a success; and if the noble and learned Viscount has become less lukewarm, then I am naturally delighted to welcome him as a companion in the venture. Naturally, I want the Commission to be a success, and in my opinion the Chairman ought to be a High Court judge. I have always thought that; and it is the intent too, as I understand it, in the case of the Scottish Law Commission. I have every expectation of being able to appoint not only a High Court judge but the High Court judge who, of all the High Court judges, in my opinion the Commission would be most fortunate to have. But the point here, as with the last Amendment, is simply the fact that one cannot always foresee events which might arise.

For example, there may be a very outstanding judge who decides to resign young; and he resigns. The day after he resigned, if he was interested in this sort of work, and a vacancy occurred the day after, the Lord Chancellor might well say to himself: "I could have nobody better than the former Mr. Justice Devlin (or, as the case may be, some other outstanding lawyer) as the next Chairman to take the place of the man who has just died, or retired. "But, of course, the day after he retires the judge is no longer a High Court judge, and so he becomes ineligible.

Then again, from time to time a county court judge is made a High Court Judge. Both noble and learned Viscounts know that this has happened in many cases, with great success. A Lord Chancellor may have decided that in the next judicial vacancy for a High Court Judge he is going to appoint a particular learned county court judge. Just at that point, a vacancy in the chairmanship of the Law Commission may arise, and the Lord Chancellor may say: "This outstanding lawyer, although a county court judge, whom I was about to make a High Court Judge would, I think, make an admirable Chairman of the Law Commission. "But he cannot appoint this man. He must wait until there is a High Court vacancy, make him a High Court Judge for a day; and he then becomes eligible. Of course, he would not be able to wait if the preceding Amendment were carried, for that would not allow the Lord Chancellor to wait; and he would have to make an appointment to fill the vacancy. But, assuming that he could wait, he must wait until there was a vacancy on the High Court Bench, make the county court judge a High Court Judge for a day, and then he would be eligible. Does this not show the unwisdom of Parliament's trying to tie down the Lord Chancellor of the day—who, after all, has great experience of appointments? He makes more appointments than anyone else.

All lawyers find cases in which they have to construe an Act of Parliament, where they are supposed to say what Parliament intended. The truth is that Parliament did not intend anything, because it did not think enough of the circumstances which might arise and did not foresee them. You get it in contracts, too, where the judge is supposed to ask what the parties to the contract intended in the events that have arisen. The true answer is that the parties obviously did not intend anything, because they never thought of it.

The noble and learned Viscount, Lord Simonds, may remember a case in which the Epsom Grandstand Association sued a bookmaker in the county court for 25s. stand fees. The bookmaker defended himself. He bought a copy of the Act; he took it with him into the witness box and he said to the judge: "You read this. You will see that I am not liable to pay anything. "And the county court judge said: "Yes, the man is right. He is not liable." The Epsom Grandstand Association went to the Court of Appeal who unanimously said that he was not liable to pay anything and that this was the only possible construction. Then the Association, with difficulty, got leave to appeal to your Lordships' House, on condition that they would in any event pay the costs. The case did not quite finish in one day. That night one of their Lordships, the noble and learned Lord, Lord Asquith of Bishopstone, was taken ill. The next day, without asking anyone, the remaining Members of your Lordships' House went on and split two-two. Sometimes in those circumstances (and there are well-known cases; fot example, Paquin, Ltd. v. Beauclerk), the appeal is dismissed. But on this occasion, instead of dismissing the appeal, the Lords hearing the appeal decided to have the whole matter re-argued before five, who then decided the other way. I happen to know that Lord Asquith of Bishopstone was in favour of the bookmaker, so English law would have been different if he had not been taken ill.

The point is this. When Parliament approved and legalised the totalisator, they said that the bookmaker must be fairly treated and they did not want bookmakers to be overcharged, or to make it impossible for them to carry on their business as a result of being overcharged, so they provided that bookmakers must not be charged for their stand fees more than they had been charged in the corresponding meeting of the year before the Act was passed. At that time, there were always two meetings a year at Epsom; then a third meeting was put on. The bookmakers said that, as there was no fee charged for the corresponding week of the year before the Act was passed, when there was no meeting, they obviously could not be charged at all, but the Epsom Grandstand Association said that, on the contrary, it obviously meant that they could charge the bookmakers anything they liked: there was no maximum. It was no good asking what Parliament intended, because it never occurred to Parliament that there might be three race meetings instead of two.

There is always a statutory maximum to the number of High Court Judges, but from time to time occasions arise, with the increase in crime, when the Lord Chancellor has to come to Parliament to obtain an increase, and there are times when the number is up to the maximum. Suppose, with increasing work, the Lord Chancellor is being continually told by the learned Lord Chief Justice that Commissioners must be sent out for the day, because there are not enough Judges to do the work, and before he obtains authorisation for an increase from Parliament the Chairman of the Law Commission dies or retires, the Lord Chancellor may then feel in those particular circumstances that the ordinary work of the court ought to come first and that it would not be right to take away a Judge, who really cannot be spared from the trying of cases, and he would have to wait so far as the Law Commission is concerned until his Bill goes through and the number of Judges is enlarged.

Again, there is no difference between us in intention. It is only that I have greater trust and confidence in Lord Chancellors acting sensibly than noble and learned Lords have. They do not propose this for Scotland. All this is aimed at the English, the main, law provision. I suggest that the Lord Chan. cellor can be trusted to deal with the normal circumstances. I have declared what is the Government's intention and what my intention would be. So far as I am concerned, I shall certainly appoint a High Court Judge as chairman. I suppose that the noble and learned Viscount, Lord Dilhorne, is more likely to succeed me than anybody else and he has said what he thinks. I should think that the Committee could easily leave it in our hands.

4.33 p.m.


May I say a word from the point of view of the general public, which is one of the classes of people everyone is agreed should like this Law Commission and its functions? May I ask the noble and learned Lord to consider this? At the beginning he said that a Lord Chancellor might wish to appoint a county court judge or somebody of that kind. Frankly, I do not believe that the public would be satisfied with anyone who had not held high judicial office. They know the names of such people and all about them, and I do not think the public would like anyone else—for instance, an expert legal professor. May I ask the noble and learned Lord to consider, although I know that he does not like to consider possible Amendments not on the Order Paper, whether it would not be possible to provide that another member of the Commission could act as chairman for a certain period, if the chairman appointed died or was unable to sit, until somebody else who had held high judicial office was appointed?


I must say that I thought that the noble and learned Lord the Lord Chancellor, whom I now regard as my partner, even my leader, in this undertaking, made some thoroughly bad points. We are not concerned with remote and very unlikely contingencies. I maintain that the broad principle, to which the noble Lord who has just spoken subscribes, is that a High Court Judge or other person holding a high judicial office—he may be a member of the Court of Appeal or even a Lord of Appeal, a Member of your Lordships' House—ensures public confidence in such a Commission. To talk about Epsom Grandstand, and I know not what, has very little to do with the application of that broad principle. I would ask the noble and learned Lord not to be difficult about this. but to concede, what I feel sure would be the wish of everybody, that a High Court judge should be a member of this Commission.


We must consider remote contingencies. The noble and learned Viscount wishes to put an absolute obligation on this Commission to have as its Chairman a person of high judicial office. My noble and learned friend has put forward circumstances in which that may be difficult, if not impossible. I would suggest one or two others. We all have the greatest respect and reverence for people of high judicial office, for their learning and their character, but they are not necessarily always the best chairmen. It may be very difficult to find a suitable Chairman who is willing to act, and in that case one might have to accept somebody else. It might even happen—another remote contingency, but possible—that the Lord Chancellor of the time (we are not legislating for my noble friend in particular and this Bill will remain in force for a long time) has in mind somebody who is even better as Chairman than anyone possessing high judicial office who is available. Why should the Lord Chancellor of the day be fettered in appointing the best person he can? My noble and learned friend has expressed his intention of appointing a person with high judicial office as Chairman.

I do not think that he should be absolutely bound to find such a person, regardless of whether he happens to be the best chairman or whether there is such a person available, or of other conditions at the time. I do not believe for one moment that any of my noble and learned friend's predecessors would have been willing to allow himself to be fettered in this way. He would express his intention and desire to do the best he could to carry out this intention, but he would certainly not be willing to have it laid down in an Act of Parliament that he must carry out this particular method of appointing a chairman, whether or not it happens to be in the best interests of the nation. I hope that noble Lords will not press this.


I have already expressed my sympathy with the Bill and said that I wish to see it succeed. I do not wish to talk about any of the matters discussed on the Amendment, but one thing occurred to me, which I hope the noble and learned Lord the Lord Chancellor will consider. The Commission cannot function unless it has a Chairman, and there is no provision that I have noticed about what is to occur in the event of the Chairman's death. I hope that the noble and learned Lord will consider whether some provision could not be inserted to enable the Commission to function during a temporary vacancy in the chair. The same point really arose on the previous Amendment. I ask only that this point should be considered.


I hope that the Government will not continue to resist this Amendment. Speaking for myself, I am not in the least trying to fetter the Lord Chancellor or to make his work inconvenient in any way. What I am trying to do is to make sure that this Law Commission will function successfully. As I ventured to say on a previous Amendment, it must obtain the public confidence in that way. I do not believe it can obtain the public confidence unless the Chairman is either a High Court Judge or one who has held that office. I can think of many university professors, barristers and, in case the Lord Chancellor should take the words out of my mouth, even solicitors who would be excellent chairmen of this Commission, and probably better personally qualified than some High Court Judges. But that is not how they are looked upon by the public. The mere fact of having held the office of a High Court Judge, or of holding it, is the real guarantee of responsibility in this Commission.

A county court judge, with respect, will not do. I entirely support what the noble Lord, Lord Derwent, said. I have the greatest respect for many county court judges, and they have been great successes, in some instances, on promotion. But in the public mind they deal with Rent Act cases, contracts, small debts and things of that kind, and they do not carry the same weight as a High Court Judge or one having experience as a High Court Judge carries. I believe (and this is the last Amendment on this clause where I will support the Opposition) that in this case the Government will be working more successfully for their Bill by accepting the Amendment than they will be if they continue to oppose it.


May I say at once that I was not present at the Second Reading of the Bill. As the noble and learned Lord the Lord Chancellor knows, I am very much in favour of the Bill and, like, I think, all your Lordships, desire it to work. I am not here to advocate the position of a High Court Judge as the most suitable for the post of Chairman, but if, as your Lordships appear to think, it is necessary that the Chairman should be of high judicial office, then let it be so stated. Of course, I accept the intention as expressed by the Lord Chancellor. But this is a Bill looking to the future, and having heard the noble Lord, Lord Silkin, I can quite understand that in the future somebody may say that some professor is the best person to be the Chairman. And if that is the intention, so be it. But if it is not the intention, surely something ought to be done by way of amendment.

I do not know whether the Lord Chancellor would see fit to meet those who have moved the Amendment—and it might not suit them (I can see that he might be in a difficulty if he is confined to a present holder of high judicial office) but would it be possible to meet the position by saying that the Chairman shall be a person who either is or has been the holder of high judicial office?


The point raised by the noble and learned Lord, Lord Cohen, is one which I will certainly consider. As to the rest, the proposal made both by the noble Lord, Lord Tangley, and by the noble and learned Lord, Lord Parker of Waddington, is not actually the Amendment which is proposed, because it would include somebody who has held high judicial office, which the Amendment does not include. I should like to think about it.

The difference between us is very slight. We all think that the Chairman of the Law Commission ought to be the holder of high judicial office. I can conceive possible circumstances in which there would be difficulties. No one who has spoken on the Amendment has said, for example, what he would want to happen if a vacancy arises at a time when the statutory total of Judges is already complete, the existing Judges are overworked and the Lord Chancellor is engaged in trying to get a Bill through to increase the number of Judges. Just at that point, is he to be bound by statute to take away a High Court Judge from his duties or have the Law Commission come to an end? If you provide all these things by statute, the body will not be lawfully constituted unless it is constituted in the way provided by Parliament. Nobody has answered this quite genuine point.

We are all agreed that in any ordinary circumstances the Chairman of the Law Commission ought to be a High Court Judge; and nobody thinks that stronger than I do. I am merely thinking it right, in relation to my successors, to have in mind that there may be exceptional circumstances, like those to which I have referred, in which the Lord Chancellor would have the most difficult task of either bringing the work of the Law Commission to an end or taking away a High Court Judge who was desperately needed to try the cases. It is precisely because Parliament so rarely seems to think of the sort of things which we afterwards find arise in real practice—and one wonders why Parliament never thought that they might happen—that I should still prefer to keep the position plain. But perhaps I might consider this matter further; and it may be that those who have spoken on the Amendment would also be good enough to consider the sort of point which I have envisaged as possibly happening, and see whether, in spite of that, they feel that there should nevertheless be an absolutely rigid provision in the Bill that the Chairman must at all times hold, or have held, high judicial office.


I am glad the noble and learned Lord the Lord Chancellor has said that he will consider this matter further. If I may say so, he really has the whole House with him in trying to make this the best Bill we can make it. As a rather old hand here, hope I may say that he will appreciate this. There will be times when we shall be debating points where the differences between us will stretch rather wider than (hey do on the matter we are now discussing. We are nearly at one over this. May I say that it is not that we do not trust the Lord Chancellor. I would not give a guarantee that I would trust every Lord Chancellor, because I do not know what sort of Lord Chancellors we are going to have in the future. Delving back into the past, I think of one or two whom I should not have trusted in the way that I should trust the present holder of the office or my noble and learned friends Lords Simonds and Lord Dilhorne. But what we are really anxious about here is what may happen in the future. One or two speeches that have been made have suggested that a High Court Judge might not be the best man, and the best man might be some very good professor. But, as my noble friend Lord Derwent said about county court judges, a fortiori I do not believe that an erudite professor is going to carry that weight in the public mind, even if you get a person like Sir Frederick Pollock, whom we all knew in my young days. To those of us who tried to make our living by the law a great many years ago, Sir Frederick Pollock was a household word. If you had gone to the Epsom Grandstand you would have found that nearly every "bookie" knew who the High Court Judges were, but I do not suppose you would have found one who knew who Sir Frederick Pollock was.

There may be a balance of inconvenience, but, frankly, if I had to choose between the inconvenience of having a person who is a High Court Judge or, as it certainly ought to be, who has held high judicial office—and that gives a much wider range for this purpose—I should choose that possible inconvenience against the uncertainty of having somebody who would not carry weight with the public. I believe that if he does not put this in, the Lord Chancellor will be getting his Bill off to a very bad start. We want to get this Bill off to the best possible start, so that it may prove to be a success.

4.50 p.m.


As my name is on this Amendment, perhaps I might say a word in support of it. I should like to echo the words of my noble friend who has just sat down about our approach to this Bill. It had its Second Reading, and we did not divide against it. None of the Amendments down in my name is designed to do anything but improve the measure. I think it is the general feeling that the Chairman of this Commission should be the holder of, or should have held, high judicial office. There is no argument about that at all. I think it is equally clear from what the Lord Chancellor said that, whether or not this Amendment is accepted, there must be some provision here for temporary tenure of the office of Chairman.

The noble and learned Lord has pul the question about what would happen when the establishment of judges was full to capacity and there was a vacancy as Chairman of the Law Commission. I should not be in the least opposed to the idea that there should be provision in the Bill for enabling him to appoint a temporary Chairman, for a period of limited duration, and not applying the criteria here, if that was desired, or for saying that for the time being the Commission could go on so long as the numbers did not fall below three. I think something of that sort will be required. If the noble Lord will say that he accepts the view—and it really is not seeking to impinge upon the proper degree of discretion which the Lord Chancellor has—that this wording ought to go into the Bill, then I am sure we can make further progress.


I do not think I can say more than I have said already. I should like to consider the point and to discuss it with some noble Lords who have themselves said that there may be some difficulty where the maximum number of judges has been reached. The noble and learned Viscount has not dealt with this point at all. If you are up to your maximum number of judges, and the Chairman of the Law Commission dies or retires, what is a Lord Chancellor to do, faced with this very difficult situation: that if this Amendment is put into the Bill, either the whole Commission has to come to an end, or he has to take somebody off his ordinary work until he can get a further Bill through. I should like to discuss this with the noble Lord.


May I ask the Lord Chancellor a question, because I have not the numbers in my mind? Are there not something like 80 High Court Judges now? Is it not rather unlikely that, with that number, he will not be able to obtain one when the occasion requires, considering the importance which we all attach to this Law Commission? I cannot help thinking that that is such a remote contingency, that he was raising it to make difficulties rather than to help.


I can assure the noble and learned Viscount that it is not a remote contingency at all. We are at the moment within one of the maximum and, as the noble and learned Lord, the Lord Chief Justice, knows, to the regret of both of us I am continually being asked to send out commissioners to do work simply because there are not enough High Court Judges available.


It is one-eightieth.


The present total is within one of the maximum. I am hoping that Parliament will agree to increase the numbers shortly.


I hope that I have assisted the Lord Chancellor in his task by suggesting that the Amendment might be extended to include those who have held high judicial office. I have often thought there was something to be said in favour of the retiring age, in the hope that we could build up a really strong panel of retiring judges who could do so many of the things which, apparently, they are required in the public interest to do, rather than take somebody who is fully occupied in trying cases. I hoped that by extending the ambit from which the Chairman was drawn it would meet to some extent the Lord Chancellor's difficulties.


That is not the Amendment proposed, but it is what the noble Lord, Lord Tangley, also proposed, and that is why I should like to consider it.


Is it not usual for judges from time to time, at the conclusion of a case, to reserve judgment, in order that they may consider all the facts that are put forward? What can be the possible objection to giving the Lord Chancellor an opportunity to do just that, rather than press him at this moment? With a somewhat depleted House, if the Amendment goes to a Division it is highly improbable that the result will properly reflect the views of the Committee.


Would the Lord Chancellor be good enough to answer a question, for clarification? He has said twice that if the Chairman who is a High Court Judge vacated the chairmanship of this Commission, and there were no other High Court Judges available at the moment, the whole work of the Commission would come to an end. Is that so? It would seem to me that in a comparatively short space of time he would get a Bill through Parliament to appoint more Judges. Even assuming that that took six months, or something of that sort, does he mean to say that if this happened, and he could not produce another judge for six months, the whole work of the Commission would come to an end?


I am afraid that that is the legal consequence That is why you usually say, "not more than" so many people; or, if you have a fixed number, make provision for what is to happen if somebody dies or retires, Otherwise, the body is not properly constituted. A statutory body is a body which exists only so long as it fulfils the conditions which Parliament has laid down for its constitution. So if you do have a fixed number, it is necessary, as the noble and learned Viscount, Lord Dilhorne, has said, to add something to provide what is to happen on a casual vacancy. If you are going to say that this Commission is properly constituted only if a High Court Judge is Chairman, then in law it remains properly constituted only so long as that is so. I am not saying that it would not be impossible to add provisions, as has been suggested, for some temporary vacancy or, in the event of the judges arriving at their maximum number, that that should be a special circumstance entitling the Lord Chancellor not to appoint a new Chairman for such-and-such a period. But the effect of the Amendments if passed—


The Lord Chancellor would agree that the point can be taken care of, though not by this particular Amendment.


I wish to be sweetly reasonable. I am not quite sure what the Lord Chancellor's mind is about this, but it seems to me quite easy to introduce something on the Report stage. If he will tell me that he intends to accept this Amendment, subject to a suitable further Amendment on the Report stage, I shall be very glad to withdraw my Amendment.


I resent this pressure. I think it is very unfair pressure. If a person in charge of a Bill says: "I am prepared to consider what has been said in Committee", ought that not to be sufficient? Ought he to be required to say: "I accept in principle what has been said"—even if he does not—"otherwise, we shall force a Division"? If that is the attitude of noble Lords opposite, then we understand. But I hope that that is not going to be their attitude.


I do not know whether or not the Lord Chancellor accepts this principle. Perhaps it is my own fault, but he has left me in doubt as to what his intentions are in this matter. Perhaps I may ask him the plain question: Does he intend to accept this Amendment, but upon Report stage, if he can find a further suitable Amendment, to bring in such further Amendment as he thinks will make the Bill work?


May I, as one who has had a certain amount of Parliamentary experience, say that this is quite unprecedented? I agree entirely with the noble Lord, Lord Silkin. The Lord Chancellor has made his position perfectly clear to the Committee. He has asked for time to reconsider the matter and that, in my submission, should be enough. He has given his authority to that, and it is sufficient. I have certainly never known an occasion in another place when, a Minister of the Crown having asked for time to reconsider a question, and having promised to do it, in consultation with those particularly concerned, he has been pressed to accent an Amendment, with the idea that he might ultimately bring in another Amendment on Report. I think the noble Lords will not mind if I suggest that we really ought to accept the assurance of the Lord Chancellor, and this Amendment should be withdrawn.


The noble Lord, Lord Silkin, asked what the Opposition view was with regard to this. As he and I know, with our experience in another place, which was perhaps longer than our experience here, there are different ways of saying that one will consider a particular suggestion. If you say that you will consider it without giving any undertaking, that holds out little hope of any change and then you pass on to the next business. If you say you will consider it and that you are in sympathy with the idea although it may not be practicable and there may be difficulty, then everyone knows that if possible the person in charge of the Bill will try to meet the point.

From what the Lord Chancellor said —I am not seeking to score any points or to criticise—I personally got the impression that the noble and learned Lord would be in sympathy with this proposal if he could find a way of solving the problems to which he drew the attention of the Committee. If that is so, and if I have interpreted correctly what the noble and learned Lord said, I think in fact it answers my noble and learned friend's question, that the Lord Chancellor is in sympathy with the proposal, he sees difficulties in regard to what may happen when a vacancy occurs owing to the limits, and he would like time to consider the matter.


That is a very different thing from saying—


If the noble Lord will forgive me for interrupting, I think I may be able to save time, as it is getting late. In view of what my noble and learned friend Lord Dilhorne has said I think I will ask leave to withdraw the Amendment now, hoping that the Lord Chancellor will be of a conciliatory frame of mind. I must tell him that if he is not we shall have our battalions again on Report because we attach great importance to this. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.3 p.m.


moved to add to subsection (2): of whom not less than three shall have been actively engaged in the administration or practice of the law in the course of the year preceding their appointment. The noble and learned Viscount said: I regard this as an important Amendment, and perhaps more important than any of the Amendments we have so far been discussing. In the course of the Second Reading debate I expressed the view that it was essential that lawyers with recent practical experience should be well represented on the Commission, and I said that if the Chairman was to be the holder of high judicial office, as I hope will be the case, at least two of the four of the other Commissioners should be lawyers with recent practical experience. If the Chairman is going to be a High Court Judge, as I now understand is to be the case, I would say that at least one member should be a member of the Bar with practical experience in the courts, and at least one member should be someone with practical experience as a solicitor. With the Judge, that means there will be three members who have actually been engaged in the administration or practice of the law.

This Amendment is intended to secure that, because I think it would be an improvement to the Bill if that were provided. The noble and learned Lord the Lord Chancellor, in his reply on Second Reading, said this: I would suggest for his"— that is to say, my— consideration that it is extremely desirable that the Lord Chancellor (I am not thinking of myself, but Lord Chancellors in future) should be as free as possible to appoint the men whom he thinks are the best men at the time."—IOFFIcFAJ, REPORT, Vol. 264 (No. 60). col. 1222, April 1, 1965.] Whether the successor to the noble and learned Lord on the Woolsack is free to appoint anyone to the Law Commission, assuming it goes on, may depend on the terms of employment the noble Lord makes with those he appoints as Law Commissioners, and this will be the subject of discussion on a later Amendment. However, I do not myself think that the Lord Chancellor will be getting the best men for the job unless he gets three men with the qualifications proposed by this Amendment. I do not think this Commission will command much respect unless it has on it a Judge and at least two other members with recent experience in the administration or practice of the law.

I would ask the noble and learned Lord whether he envisages a Law Commission without three such men upon it? I hope that is not the case, because if it is I do not think he will be getting the best men. When appointing a body of this sort, or creating it by Statute, it is by no means unusual to state all the qualifications which the members of the body should possess, and if this Amendment is accepted I believe that the noble and learned Lord and his successors will be as free as they need to be to find the best men. A somewhat similar Amendment was moved in another place, and resisted for reasons which I must confess I did not find convincing. It may be that the Minister without Portfolio was not free at that time to accept Amendments to this Bill.

In this connection I want to refer to something which has already appeared in the Press. Since the Second Reading my attention has been drawn to an article in the Guardian, which no doubt the noble and learned Lord the Lord Chancellor has seen, headed "Five Likely Law Commissioners". I have made such inquiries as I can, and it would seem to me as a result of those inquiries that the persons named in that article as the likely Law Commissioners are in fact going to be the Law Commissioners, and that they may have a bearing on this Amendment. If I am wrong about this I will gladly give way to the noble and learned Lord here and now and be corrected, but if I am not wrong I will proceed upon the assumption that this article is well-founded. The article was by the legal correspondent of the Guardian and it names Mr. Justice Searman as the likely Chairman. I hope that is the case because I am sure that he will be a very good Chairman indeed. It then goes on to mention Mr. Neil Lawson, O.C. He has, I understand, retired from the Bar, and did so on March 31. I wonder whether Mr. Lawson was in the Lord Chancellor's mind when, in his reply on the Second Reading, he said this, in column 1222: Of course, as soon as you start to tie somebody's hands in that way, then if you have a leading member of the Bar retiring, young"— and of course Mr. Lawson is a leading member of the Bar— the day before he retires he can be a Law Commissioner, and the day after he retires he cannot. I would point out this is no answer to this Amendment, but this Amendment is so drawn as to enable the appointment of someone who has recently retired. If Mr. Justice Scarman and Mr. Neil Lawson are to be two of the Commissioners, they will be two with recent experience in the administration and practice of the law.

The others named in this article are Mr. Marsh, the present Director of the British Institute of International and Comparative Law. I do not think he would for one moment claim recent experience in the practice or administration of the law. The fourth name is that of Professor Gower, who taught commercial law at the London School of Economics and has been directing the law school at Lagos and advising on legal education throughout Nigeria. The fifth name is that of Mr. Andrew Martin, the co-author with the noble and learned Lord of Law Reform Now. The Guardian says that Mr. Martin is of Hungarian origin and received his legal education on the Continent, and has combined teaching law at Southampton with practice at the Bar. As I understand it, he carries on a practice in Private International Law and such practices do not, I think, lead to very frequent appearances in our courts. I am not sure whether Mr. Martin is to be regarded as actively engaged in the practice of our law. If he can be, then there will be three who satisfy the terms of this Amendment. If he cannot, or if the Lord Chancellor thinks it doubtful whether he can, then that is perhaps a reason for the resistance of this Amendment.

If this article is correct, what I think is serious is that the Law Commissioners will not include a single solicitor with recent practical experience. I must say that I do think the omission of such a solicitor would be a very great mistake. On Second Reading I expressed the view that it was essential that the Commissioners should be of the highest distinction in the law, and the Lord Chancellor said that he should he free to appoint the best man at the time. I must say that I feel some doubt whether a member of the junior Bar, a part-time teacher of law and a part-time practitioner of Private International Law, and co-author with the noble and learned Lord, can properly be regarded as coming within that category.

The Guardian, usually a very reliable paper, goes on to say this: All had some association with or have been actual supporters of the Labour Party. On Second Reading I asked for an assurance from the noble and learned Lord that in selecting the Commissioners he would take great care to see that they were free from bias on one side or the other. I had not then seen this article. But that assurance was not given by the noble and learned Lord the Lord Chancellor, and if these are the men who have been selected, with that background —although I make no personal reflection upon them; I do not wish to do so—it would not be possible for the noble and learned Lord to give that assurance. I went on to point out that, should the Commissioners be a Left-wing body or have a Left-wing bias and use their powers for the promulgation of Left-wing ideas, the process of enactment was likely to be slow, and it would really be expecting too much if it was thought that agreement could be reached on an accelerated procedure of legislation for Bills that emanate from the Law Commission, if it is going to be, as appears from this article to be the case, apart from the judge, an entirely Left-wing body.

The noble and learned Lord resisted the suggestion embodied in this Amendment on the ground that he should be free to appoint the best man or to appoint those he regarded as the best men, whether or not they had any recent experience in the administration or practice of the law of England. I think he is absolutely wrong to assume that the best men for this work are those, and only those, who support his Party. His predecessors have for many years sought to secure a fair balance on benches of magistrates. I have no doubt the noble Lord seeks to do that, and I have no doubt his successors will seek to do so, too. But it does seem to me to be really very extraordinary indeed that the noble and learned Lord should have disregarded the need for a fair balance on the Law Commission, from which so much is expected. This Amendment will at least secure that there is an adequate number on the Commission with practical experience of law. I recognise, in the light of what I have said, that it may not perhaps go far enough, but I am reluctant to table an Amendment imposing on the Lord Chancellor the duty to secure a fair political balance on the Commission. It should not be necessary to do so, and I shall be content even now with the assurance for which I asked on Second Reading. I beg to move.

Amendment moved— Page 1, line 13, at end insert the said words.—(Viscount Dilhorne.)

5.16 p.m.


I cannot, I am afraid, accept this Amendment, but I can certainly give the assurance asked for. No appointment, of course, has been made, though there have naturally been preliminary inquiries to see who might be available. May I deal first with this political question? We all know that, before the war, from time to time a High Court Judge was appointed, not because his standing or practice at the profession warranted it but because he had sat and voted for a long time in another place the right way. When a Labour Government was elected after the war Lord Jowitt made it perfectly plain that, so far as a Labour Government was concerned, this practice was not going to continue. He made it clear that a Labour Government did not believe in "jobs for the boys", so far as legal appointments were concerned, and that he would pay no attention whatever to Party politics in making appointments. And we all know that he did not. Ever since then, the precedent having been broken, I believe that Lord Jowitt's example has been followed by successive Lord Chancellors. Every Lord Chancellor has some pressure put on him by his own Party (I know that this is true of my predecessors) to recommend "A" for Silk, or to make "B" a recorder, because he is a good member of the Party.


May I interrupt the noble and learned Lord? I think he suggested that this wholesome practice was initiated by Lord Jowitt. Surely that was not so. Surely Lord Simon (I speak, of course, subject to correction) never made a political appointment. I do not think Lord Jowitt did. Nor, I am sure, did Lord Maugham. Nor, I think did Lord Caldecote; and I do not remember that Lord Hailsham did. There were considerable fears expressed that Lord Jowitt might not follow the wholesome example of his predecessors. Much as I admire what he did, I do not think he could claim to have initiated that practice.


Before the war a number of people were appointed (everybody in the Temple knows who they were) to the Bench because they had voted for a long time in another place, though their standing and practice at the Bar did not justify the appointment. But so far as I am concerned, Lord Jowitt having announced this principle, I do not propose in any appointment I may make of any character to pay the slightest attention to any question of Party politics at all, If I think that, on his practice, a man deserves to be recommended for Silk I shall so recommend, even if he is a member of the Labour Party; because it would not be fair that a man entitled to it should be kept back for fear that somebody might say, "It is done only because he is a friend of the Lord Chancellor "or" because he is a member of the Party." In the same way I shall not prefer anybody because he is a member of the Labour Party, or pay any attention at all to that fact. I am quite certain that is right, and so far as all legal appointments are concerned a Lord Chancellor should act on merit: he should choose whoever he thinks is the fittest man for the job, wholly irrespective of his political view.

I read the newspaper article which has been referred to. As a matter of interest, I may say that, as an ex-chairman of the Society of Labour Lawyers, I have a membership list in my possession. I looked at that list, and found that only one of the five names mentioned is upon it. It may be that those who are such enthusiasts for law reform that they are prepared to give up a large income and take a smaller one may be found more in the Party of reform than in the Party of reaction —it would not be surprising if that were so. I do not know whether this is necessarily so, because I remember that on the Bar Council some of the most enthusiastic law reformers were the young Conservatives. But I can certainly give this undertaking: whether in appointing to the Law Commission or making an appointment of any other kind, I will resolutely pay no attention whatever to the Party political attachments of those concerned.

The reason I cannot accept this Amendment is again because I am thinking of the position of future Lord Chancellors. I want the Law Commission to be a success. I believe in it. Perhaps I might ask noble Lords on the Liberal benches: Who do you think is most likely to produce the optimum conditions for a Law Commission—those who believe in it and have always wanted it, or those who, like the noble and learned Viscount, Lord Dilhorne, have always been against it and hope it will fail? I am the person, I suppose, who will be blamed first if it does not succeed.


The noble Lord must not say that I have always been against it and hope it will fail. I certainly hope it will not fail; I hope it will succeed. But I have said already —and I ask him to accept this—that these Amendments are designed to help it succeed. He may not agree with that. I said on Second Reading that I thought that the same object would be achieved by other methods. But he ought not say that I have always been against it. We did not vote against the Second Reading of the Bill, and these Amendments are put down with a constructive spirit.


They are all Amendments designed to make it as difficult as possible for the Lord Chancellor to find the best men.



I will substitute the word "calculated" for the word "designed". These men must have certain particular qualifications; they must be appointed for not more than three years; they must be whole time, and so forth. All the Amendments we are coming to are of that character. We do not know, until we try, how difficult it is going to be to get people.

Again, I do not disagree with the spirit of the Amendment. Knowing something of the work of the Law Reform Committee of the Law Society, rather more of the work of the Law Reform Committee of the Bar Council, and having been Chairman of the Executive Committee of Justice and knowing about their law reform committees, I think there is no doubt that the committees of Justice do the best work precisely because, not being limited to one branch of the profession, they usually comprise barristers and solicitors and academic lawyers. I agree that we want the mixture. But one has to consider for the future who may be available and what may happen in the years ahead.

The point is that in other appointments which he makes the Lord Chancellor is not tied down in this way. After all, nothing is more important than judicial appointments. Parliament does not say to the Lord Chancellor, "You must appoint a High Court Judge who must be an expert in patent law, two of them ought to be experts in Revenue law, one half of them ought to have had circuit experience and they should not be less than a certain age or more than a certain age". The sole qualification of a High Court Judge is that he should be a barrister who has been called ten years and that is all: there is no other qualification of any kind. You do not say, as this Amendment does, that he must have been practising as a barrister within a year of his being appointed a High Court Judge. We leave the whole thing entirely to the Lord Chancellor's discretion. It may be most desirable—it is, of course, desirable and is always the fact—that we have a certain number of judges with different kinds of experience. Of course the Lord Chancellor takes that fact into account at the time he makes an appointment. But we have found, in practice, that this matter is better left to the discretion of the Lord Chancellor.

When he makes recommendations for Silk (and this is important to the individuals themselves), the sole qualification is that the candidate should be a barrister. There is nothing to stop the Lord Chancellor from appointing as a Silk somebody who was called yesterday. I can well imagine its being said: "We really cannot allow the Lord Chancellor to appoint as a Silk a barrister who was called only yesterday." But in practice it has always been found that if appointments are left to the good sense of the Lord Chancellor of the time he will do the right thing. It may not always be realised that he is not concerned simply with legal appointments. He often makes appointments of lawyers as chairmen of agricultural land tribunals, the appeal tribunal under the Air Navigation Order, the betting levy appeal tribunal, the Children Act appeal tribunal, compensation appeal tribunals, the independent schools tribunals, the Lands Tribunal, nominated selectors under the Mines and Quarries Act, the national assistance appeal tribunals, the mental health appeal tribunals, various national insurance tribunals, nurses training institutions tribunals, National Service tribunals, pensions appeals tribunals, rent tribunals and many others. The Lord Chancellor has great experience of appointments and, while in most of these cases the chairman has to be legally qualified, Parliament has always trusted the Lord Chancellor with wide powers, feeling that he is to be trusted to exercise them responsibly.

In the present case you are trying to lay down conditions which do not exist for High Court Judges, for county court judges, for recorders or chairmen of tribunals—in fact for anybody except a Law Commissioner. It is only in the case of the Law Commission that the Lord Chancellor is to be tied down and confined in this way, that not less than three shall be actively engaged in the administration or practice of the law in the course of the year preceding their appointment. I personally have every intention of appointing not less than three with that qualification. But that is not the point. One has to consider the future, and who may or may not be available.

It may be that the leading member of the Bar does not want to leave the Bar, but the Lord Chancellor of the day puts a great deal of pressure on him, no doubt in the public interest, and says to him: "You really must come in as the chairman of this important new Government committee. You are the only one whom both sides in industry will trust." Not because he wants to, but because he thinks it his public duty, the man gives up his practice to do that work. It may be that after a year and a day there is a change of Government and the Committee ceases to function. If at that moment there is a vacancy on the Law Commission, might not a man like that, if he has been one of the leading barristers of the day, be an excellent Law Commissioner?

But under this Amendment the Lord Chancellor would be tied down. If it is a year and a day, and the man in question has not been in active practice for a year and a day, he is ineligible to be appointed a Law Commissioner. One would have the absurd position that this man, if he went to the expense of taking chambers, getting a clerk and conducting one case, would be qualified to be a Law Commissioner; but that, otherwise, Parliament, in its wisdom, has put it out of the power of the Lord Chancellor to appoint such a man. A solicitor of thirty years' experience who then does something else for a year does not forget what he has learned in thirty years. This is the unwisdom of trying to tie down the Lord Chancellor with restrictive conditions of this kind. And it is only in the case of the Law Commission that it is to happen.

I This is a point to which the Government have given most careful attention to, and I am unable to accept the Amendment. It has been considered carefully, too, in another place. The Opposition there, perfectly properly, put down a number of Amendments; and a similar one (except that it did not refer to the year) was put down on the Committee stage. The Opposition, quite properly, kept the Government there for four days while these important Amendments (which are most of the Amendments that your Lordships have yet to consider) were argued. Some of those who were supporting the proposal said they thought that to require three Commissioners with those qualifications was putting it too high, but they considered that the Government should accept that at least two should have them. Having carefully considered that suggestion, and after everything that could be said on both sides had been said, the Government, which the public have elected, rightly or wrongly, refused to accept this.

Not deterred, and again quite properly, the Conservative Opposition (because I do not think the Liberal Members took part in this, although they have always supported the idea of a Law Commission) put down much the same Amendments all over again on the Report stage, though in this case they reduced the number from three to two. They argued on those Amendments until 3 o'clock in the morning-2.58 to be precise. I know, because I was there. Again, there was a full argument, and everything that could be said on the subject on both sides was said. Again, the Government, rightly or wrongly, thought that this ought to be left to the discretion of the Lord Chancellor of the day and that he ought not to be restricted in this way.

The noble and learned Viscount, Lord Simonds, referred to the troops to be brought up on the Report stage, and who no doubt are here to-day. We are under no illusion at all about that. There are 1,006 Lords in the House of Lords. If they all thought it their public duty to come here and vote, less than half could do so. Those best qualified to know vary as to whether, if your Lordships were all standing, as jammed as you can be, the figure would be 410. or 430, or 450; but it is certainly less than half who can possibly vote, and there would be no means of knowing the way those who were kept outside would have voted. We are under no illusion at all that, as your Lordships' House has a built-in Conservative majority of about 900 over all other Parties, we can carry anything against that. All we can do is to stress the fact that if the House passes this Amendment it will not be exercising its function of a revising character.

Short as is the time I have been in your Lordships' House, I have been here long enough to know that a Second Chamber fulfils a very useful purpose as a revising Chamber in observing things which have been missed in another place —a very useful function that is. When legislation goes to another place they say, "We are sorry, we did not notice that. It is obviously right." But this is not a matter of this kind; this is a matter in which there is a conflict of opinion between those whom, rightly or wrongly, the people have elected and those whom they have not. Everything that has been said in your Lordships' House to-day about this was said in another place, and of course the noble and learned Viscount knows quite well that I am not at liberty to accept this Amendment because the whole thing has been fully argued in another place, and on a conflict of this kind either they decide or your Lordships' House decides.

5.32 p.m.


May I, at the risk of making matters worse, try to pour a little oil on troubled waters? I, for one, shall vote against this Amendment, for this reason. If the noble and learned Lord the Lord Chancellor is sympathetically considering, as I have no doubt he is, an Amendment which will secure that the Chairman is a person who either is now, or has been, in high judicial office it is inconceivable that the other members of the Commission will be appointed without consultation with him. I think that the House can trust the Lord Chancellor —and, after all, the noble and learned Lord has had this Bill at heart for years; he wants to see it work and knows as well as we do that it will work only if it has the complete confidence of the public and, above all, of the Bar and of lawyers generally—together with the Chairman, if that Chairman is a gentleman of high judicial office, to ensure that the constitution of the Commission is such as to command respect.


I, too, hope that this Amendment will not be pressed. I am partly reassured and partly alarmed by what the noble and learned Lord Chancellor has said about the constitution of the Commission. I should have thought it absolutely axiomatic, as I ventured to say on Second Reading, that there should be a practising barrister and a practising solicitor on this Commission. I do not think that it can work without it. I was not going to give any names because I do not necessarily believe what I read in the newspapers, but as these names have been mentioned I am bound to say that some are friends of mine and most of them, with only one exception, are acquaintances. If those persons were appointed, the verdict of the profession would be that one would have a High Court Judge, a practising barrister, and three Leftish dons.


I am sorry to interrupt the noble Lord, but as he has mentioned an individual, a Leftish don, I ought to say this. I know how very little of the time of his practice is given to that work; I know the size of his practice; I know what his very large income at the Bar is, and regard it as very unfortunate that an individual should be attacked when he is not here to defend himself.


I am sorry that the noble and learned Lord the Lord Chancellor persists in thinking that anybody who is trying to help him on this matter is attacking him.


Not attacking me, but attacking an individual in his reference to "a Leftish don", when I know the size of his practice at the Bar.


I am not expressing my own views about yersons some of whom are personal friends of mine. What I am bound to do, in view of the publicity given to these names, is to say that none of them could be regarded as practising solicitors, and all would in fact be regarded as Left-wing dons. Whether that epithet is justified or not, that is the impression which would be given, because they are not practising solicitors or practising barristers in any accepted sense of the term. None the less, in spite of that, the Lord Chancellor must be trusted to produce a Commission which will command public respect and support.

I do not believe that this Amendment will help him at all in that direction. The fact that a man can satisfy the Lord Chancellor that he has done a little legal work during the immediately preceding twelve months does not make him a practising barrister or practising solicitor. It might indeed be embarrassing to have to ask a barrister whether he has had a brief in the previous twelve months. It might also be embarrassing to ask a solicitor whether he has done anything for a client in the previous twelve months. It cannot be the right criterion to ask that sort of question.

Moreover, if a Lord Chancellor were minded to make some improper appointment, with this Amendment in the Bill, he could very easily drive a coach and horses right through it. It would be the easiest thing in the world to arrange that a barrister should qualify technically as a practising barrister during the preceding twelve months, and that a solicitor should qualify as a practising solicitor during the preceding twelve months.


Has the noble Lord read the Amendment? It does say "actively engaged". You could not call a man "actively engaged" if you are doubtful whether he has had one brief in the past twelve months.


I am sorry that the noble Lord, Lord Silkin, is trying to destroy the argument with which I was hoping to support his noble and learned friend.


I am hoping to destroy a bad argument. I do not think it needs any bad argument to destroy the Amendment. I would rather destroy it by a good argument than by a bad one.


The Amendment says: actively engaged in the administration or practice of the law but it does not say what "actively" means.


That is another matter.


The noble Lord, Lord Silkin, is a very active person and there are other people who are perhaps less active, but one cannot say that any of us are totally devoid of some activity. This is not a distinction which will work. I submit that it cannot work. In fact, it is on a par with trying to define a gentleman by saying that a gentleman is a person who has been observed in at least one gentlemanly activity during the immediately preceding twelve months.

5.39 p.m.


I have listened to all that has been said. The noble and learned Lord the Lord Chancellor started by saying that he was not at liberty to accept this Amendment. He told us that it had been carefully considered by the Government in the course of the passage of the Bill through another place. But he then made some observations about the functions of your Lordships' House. There is nothing improper in raising a matter in this House; we can raise anything we like. There is nothing improper in raising a matter in this House in deliberations on a Bill, even though it may have been raised in another place. It is not beyond the bounds of possibility that a Government, of whatever colour it may be, may have second thoughts; nor is it beyond the bounds of possibility that some new arguments may be advanced. Having had this article drawn to my attention, and having heard that there is a great deal of talk about it, I thought it would be right to refer to it in the course of this debate. I should like to stress this.

I was very glad indeed to hear the noble and learned Lord the Lord Chancellor say—as, indeed, I thought he would—what were the principles and policies that he was proposing to follow, with the appointment of Judges and Silks and other people to all kinds of judicial offices. I thought he was wrong in attributing the start of that process to the late Lord Jowitt. I think it is here that the noble and learned Lord has rather misconceived the point. This Amendment is not designed as a reflection upon him, or upon any future Lord Chancellor, or as limiting their proper discretion. But we are here setting up an entirely new body. There has not been a body of this kind in this country before. It seems to me that for Parliament to say, "We should like this body to have at least three people on it with particular qualifications" is not really asking very much, and not asking for something that is very wrong.

It is a common feature of our legislation, and of Socialist legislation, to lay down and prescribe in a Bill the qualifications that persons are required to have before they are appointed to a particular board. What we have in mind here (I do not mind people criticising the wording of an Amendment; we have no Parliamentary draftsmen to help us) has met with general approval in the Second Reading debate, and, indeed, from the noble and learned Lord the Lord Chancellor. What we propose is that there should be a majority on this Commission with actual practical experience. I myself would say that the most desirable set-up would be one judge, one member of the Bar for a certainty, and one solicitor. That leaves a choice with regard to the other two. It could be two academics, or one academic or one partly academic. But for this body to be set up with that kind of membership would, I think, be right.

I am not quite clear—it may be my fault—about some of the things that the noble and learned Lord said. I am not sure that the Commissioners he proposes to appoint really fulfil those qualifications. So far as political views are concerned, I said on Second Reading, and I say again now, that I do not think it ought to be any handicap to any member of either branch of the legal profession to take part in politics. But if we are going to create a board like this, surely great care should be taken to see that there is not a natural political bias on the board, in one direction or another. The noble Lord, Lord Tangley, referred to three "Left-Wing dons". I do not have the pleasure of knowing them, but I know two of the others named. I should have thought, although they may not all be members of the Society of which the noble and learned Lord was such a figure in the past, that it was very undesirable not to secure, if possible, a balance of political outlook. I should have thought that in constituting a board of this kind that ought to be one of the objectives. I know that one cannot achieve that by tabling an Amendment, and I should be very reluctant to do so; and I am glad to have obtained from the noble Lord the assurance which he gave at the commencement of his speech.

I should like to take a leaf out of the Lord Chancellor's book and consider this matter—and perhaps he would, too —between now and the next stage, in the light of the other matters that are being considered. He is shaking his head, but here again I ask him merely to bear this in mind. I think there is nothing between us—at least, I hope there is not—as to the kind of people we want to see on the Commission. He wants a judge; he wants people with practical experience. So do we. But what is desirable is that we should seek to find some way of expressing that in this Bill, because—again I take the point made by my noble friend Lord Grimston of Westbury—I believe it will command much more public support if it is clear that the Commission must be so constituted. Having said that, I must ask leave to withdraw this Amendment. It is a slightly different one from the next Amendment. But I say that, while reserving the right, should I consider it desirable in the light of further reflection, to place it or a similar Amendment on the Order Paper at a later stage.

Amendment, by leave, withdrawn.

5.47 p.m.

VISCOUNT SIMONDSmoved to add to subsection (3): No person shall be appointed to the office of Commissioner for more than three years and every person appointed to the Commission shall be required to serve whole time.

The noble and learned Viscount said: My noble and learned friend Lord Dilhorne has asked me to move this Amendment, and I can be very brief about it. It is an Amendment to subsection (3) of Clause 1, and it is intended to provide that a Commissioner shall be appointed for not more than three years. That is one part of the Amendment, and a quite separate part is that the Commissioners shall have whole-time appointments. I think that separate considerations apply to those two parts of the Amendment.

It struck me, when I read this Bill, that there is a very curious feature of it, in that no term is suggested. It is difficult to be precise upon these matters without looking through a great number of Statutes, but I should have thought that the usual course was to fix a term for the employment of any member of a body which is to be constituted. Of course, there is always power to reappoint for a further term, but it seems to me desirable from every point of view, both from the point of view of the public interest and from the point of view of the appointee, that he should be appointed for a term, and not for too long a term. I do not want to say anything at all hostile to the noble and learned Lord the Lord Chancellor—there is no question of trusting him or distrusting him, as he seemed to indicate at one time—but this subsection gives power to the Lord Chancellor to appoint a member of this Commission for a term of five, ten or fifteen years.

The Commissioners, and particularly the Chairman of the Commission, are in most intimate contact with the Minister. Over and over again one sees that the Chairman is to report to the Minister, and so on. The exact relationship of the Minister to the Commissioners is not clear. They are a spurious breed. They are not exactly civil servants, I suppose, but what they are is not clear in the constitution. I feel very strongly that it is wholly wrong that one Lord Chancellor should have the power to impose upon his successor a Chairman of a Commission who will be brought into intimate contact with him all the time and who may be singularly uncongenial to him. It is not really proper or right, and, so far as I know, there is no sort of precedent for it. I should have thought that it was an elementary rule of administration that there should be a term provided. Whether it is three years or whether it is four years is not very important, but I think three years would be a very suitable term. I cannot say more about it than that. I do not know what view the noble and learned Lord the Lord Chancellor will take of the Amendment. He has not been very helpful so far, but perhaps he will he now.

The other question is as to the Commissioners being whole-time. As to that, I feel a great difficulty, because if they are not to be whole-time it is very difficult to draw the line and say what part of their time they are to give up. May I venture to say something out of my own personal experience?—and it is one advantage, if it be an advantage, of being very old that you have a very long experience. It so happened that when I was a Judge in the Chancery Division in 1940 Mr. Ernest Bevin asked me to be Chairman of the first National Arbitration Tribunal which was then set up to settle disputes. I asked him whether it was whole-time or part-time, and he said he did not think it would take up my whole time, so it was a part-time appointment. I can only tell your Lordships that there was endless difficulty in blending those two appointments—being a Judge of the High Court and being Chairman of the new Arbitration Tribunal. Either one had to postpone, most unwillingly, some case which one was engaged on and was trying in the High Court, to the great inconvenience of counsel and witnesses or whoever it might be, or—and it was a very difficult thing to do—one had to put off some sitting of the Arbitration Tribunal in order that one might deal with the affairs of the High Court. I give that as my personal experience, but it is an experience that can be multiplied.

Of course, it may be I do not know —that, being appointed whole-time to the appointment, the persons so appointed may find some time idle on their hands. I should hardly have thought so when I look at the catalogue of functions which they are intended to exercise. It will not matter if they are, for the time being, idle. At least, they will always be available for what I assume to be their primary duty: to act as Commissioners under this Bill. I therefore ask the Committee to say (a) that there should be a term of appointment; and (b) that the term should be of whole-time employment. Those are, I think, reasonable amendments to suggest.

May I add this? What I have said about a Judge applies equally to counsel. I do not know whether it would apply to professors—I am not sufficiently familiar with their course of life—but certainly it would apply to a barrister. How is he to carry on with part-time employment? Is he to go on circuit; and, if so, is he to absent himself from every sitting of the Commission while he is on circuit? Or is he to deny himself the opportunity of going on circuit? Take the case of a solicitor, whose duties may carry him abroad sometimes, or who may have to attend in court—and solicitors do attend in court. All these occupations it will be extremely difficult for him to adjust. He should be a full-time employee; and I hope your Lordships will accept the Amendment. I beg to move.

Amendment moved— Page 1, line 17, at end insert the said words.—(Viscount Simonds.)

5.54 p.m.


I can deal with this Amendment, I hope, shortly. I am sorry I cannot accept it, not because I am not anxious to meet any point which may be put, but because this is intended as another limitation on the Lord Chancellor, as though the people who were suitable for the appointment were always available in large numbers. In general, I agree entirely with what has been said. I think three years would probably be too short—less than three years, at any rate, would be too short. I agree with what the noble and learned Viscount, Lord Dilhorne, said on Second Reading. He said he did not think that the appointment should be for longer than five years. He said: I believe that it would not be right to appoint a Commissioner for so long a term as ten years—and I hope that we shall have an assurance that that will not be done. I do not myself think that an appointment should be for longer than five years."—[OFFICIAL REPORT, Vol. 264 (No. 60), col. 1169. April 1, 1965.] I think he is quite right in saying it ought not to be as long as ten years.

I have no intention myself of appointing a Commissioner for longer than five years. But this Amendment would limit the appointment to three years; and this Amendment has been put down knowing quite well that, in another place, where an Amendment was put down limiting it to four years, the Government were unable to accept it. So that guarantees that if your Lordships make it three years, they will not accept it. If they are all to be appointed for three years it would mean that everybody would have to be appointed for exactly the same period. Surely a reasonable amount of fluidity in the position is necessary. Is it a good thing that they should all have to leave together, and nobody of experience be left there?

Surely, one will in practice meet with different conditions. One will meet with the barrister with a leading practice—the sort of size of practice of Mr. Martin, which I can remember, because I know the size of his practice—who may say, "I am quite prepared to come for three years, but I am not prepared to leave the Bar for more than three years". Then, again, there may be a leading solicitor who says, "I have already decided to retire fairly young. I am going to retire in five years' time. I have made all my plans, I have got a house, and so on. I am prepared to give up my last five years to the work of the Law Commission, but I could not do three and then come back for two; that would be hopeless." I have no doubt there will be men who are prepared to come provided they can come for at least three years or provided, perhaps, that they can come for at least five years.

I have no intention of appointing anybody for more than five years; but if this limiting condition were put in, that nobody could ever be appointed for over three years, it would, first of all, limit a large number of people who might say, "I am quite prepared to come for five years, but not for three"; and, secondly, as nobody would come for less than three, they would all have to go out of office at the same time unless reappointed. Some of them, particularly at the start—because it will take time for them to get staff, and to get things going—will not be employed very much. Is it not natural that a man might want to see the completion of his work? After all, there will be a great many things in the pipe-line, so to say, at one time. I made it clear on Second Reading that the law of England is not going to be reformed in a day. In a particular case, it might be desirable that a man should stay to see his handiwork finished.

It is said that this may be awkward for a subsequent Lord Chancellor; but Lord Chancellors have to deal, and deal closely, with people in whose appointment they have had no say at all, and that does not create any difficulty. The Lord Chancellor has to work in close association with the Lord Chief Justice, the Master of the Rolls and the President of the Probate, Divorce and Admiralty Division. He has had no say in their appointment, but that does not create any difficulties.

As to whole-time appointment, here again I think the position is the same. The noble and learned Viscount, Lord Dilhorne, in saying on Second Reading why a Law Commission was quite unnecessary and explaining that the work could quite well have been done by the existing Law Reform Committees, said: The only legislation that I can see to have been necessary was to make provision for the payment of salaries to those employed whole-time. I am not against the employment of some whole-time; but I believe that those who serve part-time can indeed play a very valuable part on these Committees."—[OFFICIAL REPORT, Vol. 264 (No. 60) col. 1170, April 1, 1965.] This, again, was discussed at length in another place, and it is no doubt a fair matter of opinion. My own opinion is that, speaking in general, they ought to be whole-time appointments; and when I say "whole-time", I mean whole-time or substantially whole-time. But once you put in limiting conditions, you have to be careful about defining them. There may be a High Court Judge who says, "I am quite prepared to be Chairman of the Law Commission, but I do not think it would be a good idea to keep completely out of touch. I am the chairman of quarter sessions, and should like to go on doing that. It means only two or three days in a quarter." One ought not to prevent that. The Lord Chancellor ought not to find it impossible to have such a Judge. It might be a very sensible thing for him to do. There may be a solicitor who says: "I am quite prepared to give up my practice and to become a Commissioner; I am prepared to give up other directorships; but I have a family directorship which is important for my family, and I could not possibly give that up. It would mean only one afternoon a quarter."

I think the Commissioners ought to be whole-time, or practically whole-time. But once it is laid down by Act of Parliament that they should be whole-time that means really whole-time; and I think the noble and learned Viscount takes the view that it would be a mistake in such cases for somebody to keep to his quarter sessions. But the learned former Attorney General in another place put this forward as a very good thing to happen. He said: I only asked 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. Of course, if it is whole time they must. That appears to me to be the effect of subsection (4). I should have thought that was quite wrong and that it was very desirable that we should have the opportunity"—


May I ask whether this is a statement by a Minister? Is it in accordance with our custom to quote a speech made by a private Member of another place? With great respect, I do not think it is. I have no objection to hearing what the former Attorney General said, but I do not think that one should read extracts from speeches made in another place in the current session.


If that is so, then I must not continue. I can only say that, rightly or wrongly, in another place the view was expressed that it would be a very good thing if the Commissioners who were, in particular, members of the Bar or solicitors who were chairmen of quarter sessions could go on being so.

Again there is no real difference between us except as to whether the Lord Chancellor is to be tied down in these matters. The conditions on which people will want to be Law Commissioners will vary very much. This is a new body. There may be some who will want to come for a short time and some who will want to come for a long time. There will be some more interested in the remuneration than in the pension and some more interested in the pension and not in the remuneration. But to tie the Lord Chancellor down for, say, a maximum period of three years, I believe to be wrong; for there will be a great many people who will say that it is not worth while their giving up everything in order to be a Law Commissioner for as little a time as three years. I believe the right period is five years, but, at any rate, it ought to be kept fluid, and if there are to be all these conditions imposed upon the Lord Chancellor we shall never get any Commissioners at all.

6.4 p.m.


I should not dream of encroaching on the hallowed legal acre of the law of the lawyers and the law of the laymen, but this Amendment seems to raise not at all a legal point but a very important question of administration. Perhaps I might be allowed to say one word about administration, having been occupied with it for the best part of thirty or forty years. I believe it would be entirely without precedent to create an office, whether of a Commissioner or of a member of a board, or whatever it may be, without putting in a definite term. I am not wedded to three, four or five years; though I am sure that it ought not to be longer than five years. But in the whole of my experience I know of no case where thit, kind of appointment has been made—whether to a national board, or in appointing Government directors on to some company—and where there has not been a term. Of course it is possible to reappoint a man, if he is a good man. I should have said that in this particular instance it was essential and particularly desirable to keep to the matter of principles.

We all want this scheme to be a success. Some of the lawyers—I would not venture to express an opinion—praised it a little with faint damns. Whether they are becoming, as the Bill goes on, more or less enthusiastic, I am not quite sure. But I believe that even the Lord Chancellor, enthusiast as he is (and one should be, for one's own Bill and one's own children), must be a little uncertain as to whether this Commission is going to succeed. Above all he must be, as must all of us, a little uncertain, as with most cases of selection, that the. people who are selected will do the job well and will work well together.

As the Bill stands, if those people are appointed, there is no provision for a maximum term for which they may be appointed. If this is a success, a man may be appointed, not by the Lord Chancellor but by legislation, for all time. You might have somebody appointed for a term of ten years who turned out to be quite unsuitable, who was not good at the job or who was an impossible fellow to work with—and we have all had experience of colleagues who qualify for one or the other of those categories; indeed, sometimes we have had colleagues who could get a Double First in both. What are you going to do if you get a man like that? You must get rid of him. You cannot just send him to the House of Lords. He would say that that was no compensation. You must pay that man an enormous compensation, a "golden handshake"—and it might be cheap at the price to get rid of him. But it would be very undesirable to put yourself in the position of possibly having to do that.

I think, therefore, that it is essential that some term, some limit of time, should be put in for which a man can be appointed. These people are not civil servants; the Bill is not creating a Government Department. I hope that the Commissioners are going to be extremely independent. I do not know quite what their relationship will be to the Minister but that may develop on some other occasion. But certainly they are not established civil servants. It is not as if the Lord Chancellor were creating a new Department of Justice. Therefore I hope that the Lord Chancellor will consider this matter further. Do not let him be bound. Do not let him say: "I am not allowed to do this or that". After all, he is a very senior member of the Government, and this is his Bill. Always, when I was a senior Minister and I had a Bill and took charge of it, I claimed a good deal of right (and I was accorded a good deal of right by my colleagues) to deal with the Bill in Parliament in the way that I thought wisest on second thoughts, or in the way Parliament made me see was the wiser way. I hope that the Lord Chancellor will be a little more accommodating and will also, if I may say so, stand up for himself a little more, which he certainly knows how to do.

The only other point is the question of whether the appointments should be whole-time. Here I find myself in agreement with the Lord Chancellor. Again, this is based on practical experience as I have had a good deal to do with this sort of thing on a number of occasions. Broad and large, the Commissioners should be appointed whole-time. I like the noble and learned Lord's expression that "whole-time" was not good English or good logic and that we should say "practically whole-time". I can remember at least two occasions when, either by Statute or by an edict of the Prime Minister—I think it must have been by Statute, because I should have persuaded, or even disregarded, the Prime Minister—I wished to appoint a man who would work whole-time. In both cases I could get for the job an absolutely first-class man who would have given 90 per cent. of his time, but in each case he said he had some business interest, which would not conflict in the least with the appointment, but to retain which he had to remain on the board of a company. I was precluded from appointing those men, whom we all agreed—there were no politics in this—were ideal men, because I was estopped from giving them leave to serve on a board and to give only 90 or 95 per cent. of their time to my appointment. So I should he disinclined to press that matter but I most strongly press the other.


I have been listening very carefully to the debates on these Amendments. I would make a general point on all of them, although I must confine it to the Amendment we are discussing. It seems to me that the whole intention of these Amendments is to remove discretion from the man who really has to do the job. The Party opposite has a very creditable record through the years of being in favour of what it has called delegation of responsibility or decentralisation, though there are many other terms used for this. And there have been times, twenty or twenty-five years ago, when the Party to which belong has not been so wise in this respect.

Here we have a series of Amendments which are entirely contrary to the old principle I have heard referred to so often by the Conservative Party. I have the impression that they have their tongues in their cheeks or that they are doing this for political reasons, and not because they think this is the best way in which to do the job. Here we are setting up a Law Commission. The terms of the Bill provide the Lord Chancellor with the discretion to meet every objection which has been raised this afternoon. Yet attempts have been made, in one Amendment after another, to limit that discretion in a way that would be regarded as a fatal incursion into proper order and administration in any well-run business.

If these Amendments were accepted, this limitation of discretion would undoubtedly result in a situation where at times the Lord Chancellor could not meet his difficulties. I am left with the feeling that there is inconsistency on the Opposition Benches. I remember that a week or two ago, on the Airports Authority Bill, in the name of decentralisation noble Lords opposite went so far as to suggest that it should be put in the Bill that the Authority should appoint their own auditors. I think that was a very bad instance to choose, because auditors ought not to be appointed by those whose accounts they audit. But they went so far as that in order to delegate responsibility. Suddenly, in this Bill, they want a bureaucratic kind of organisation. They want to withdraw all authority from the Lord Chancellor and to limit his discretion by including in the Bill all sorts of provisions which need never be put in when we have a sound Lord Chancellor. In short, I think that the difference in the views which have been expressed on what I understand to be the general philosophy of the Conservative Party are quite staggering.

6.16 p.m.


I rather deplore the speech of the noble Lord, Lord Brown, to which we have just listened, because I have always found it dangerous to talk about all the Amendments, instead of the one before us. I propose to confine myself entirely to the one before us. I speak for the first time on this Bill and I may say of it that I certainly wish the Lord Chancellor well. I desire that this Bill shall be a success.

In general, I concede entirely the need for wide discretion. The speech with which I found myself in closest agreement was that made by my noble friend Lord Swinton. I think that a matter that was wholly ignored by the noble Lord, Lord Brown, was the position of the Lord Chancellor himself, if he happens to make a mistake and appoints somebody who does not turn out very well. It may be a great convenience to him that there should be a limitation in the Statute. Like other noble Lords who have spoken, I am not wedded to a particular period. I should have thought that there was not much wrong with three years, but I do not press that. The noble and learned Lord the Lord Chancellor made it clear that what he had in mind was a fairly definite limit. I agree with my noble friend Lord Swinton that there should be some figure mentioned in the Statute. I think that that would be for the convenience of the Lord Chancellor himself and of his successors, and I do not think that it would unduly limit his discretion.


May I ask the noble Lord, before he sits down, whether if a mistake has been made it is not easier to get rid of somebody if there is no fixed term than if there is? If there is a fixed term, one has to wait, until the expiration of that term, whether three, four or five years. If there is no fixed term one can ask a person to resign at very short notice.


I do not think that the noble Lord is right. What I have in mind is not somebody who proves grossly incompetent or somebody we are almost bound to wish to get rid of. I am thinking of the case where the Lord Chancellor has made a reasonable appointment on grounds which seemed good to him at the time he made it, but the man he appoints does not fulfil all the promise which led to his appointment. It may be much easier to let a short term expire than to try to take exceptional steps. I really do not think that there is much in the point which the noble Lord, Lord Silkin, has made.


Before the noble Lord sits down, may I suggest, with great deference, that he is insisting that there should be a fixed term of appointment, but that is not, I believe, the point that is involved. The point involved is that this should be embodied in the Statute. I was surprised to hear the noble Earl, Lord Swinton, say that he had never come across a case where the term of office was not fixed. I have never come across a case where it was not fixed, but certainly I have come across cases where it was not fixed by Statute.


I hope that the noble and learned Lord the Lord Chancellor will be willing to agree to put some maximum in this Bill. I think that three years is too short a time for a maximum. I believe that the maximum should be a longer period, perhaps of five years. although I am not certain in my mind about that time. As I see it, the greatest danger with this Commission is that it will become an academic body: it may become, one might say, a kind of legal debating society. The best way to provide against that is to make sure that every member of the Commission knows that before long he will have to go back to the Bench, the Bar, his office or a university, and live with what he has done. I think he should go back fairly frequently. Your Lordships will remember the old Greek gentleman who married a goddess. She was rather much tor him, and he had to come back every year just to touch the earth once. I do not suggest that the Law Commissioners should come back to touch the earth every year, but I think that a period of about three years would be very good for them, and for the Commission. I think the maximum ought to be five years, and the normal period of appointment three years.

So far as part-time appointments are concerned, I hope that there will be no objection on the part of the Opposition to making it permissible to have a part-time appointment, because if you do not have that provision it means that nobody can do anything else. You cannot have a solicitor who will come back and say, "I should be delighted to do it, but there are two or three clients who are worrying me and want me to look after them". There are infinite cases. The noble Earl, Lord Swinton, will remember certain temporary civil servants during the war who felt that they were doing a part-time job, and sometimes felt they were doing a double and triple part-time job, but continued to have an occasional, nodding interest in their own office. Yet I suppose we were only qualified to be called "part time". However, I plead that we should have a proper maximum in the Bill of, say, five years, and a reasonable understanding that the normal term of appointment will be three years. That I think would be right.

6.24 p.m.


I should like to say a word or two on the points raised. The noble Lord, Lord Tangley, has referred to the question of whether appointments should be "whole time" or "part time", as did my noble friend Lord Swinton. I think that if these five Commissioners are going to do the tasks they will be required to do under Clause 3 they will need to be employed whole time. I do not think there will be room for part-timers, in the sense in which one normally uses those words. The Lord Chancellor wants to put a very narrow interpretation upon the words "whole time". I do not think that is necessary. I seem to remember that we have had this discussion on other occasions previously about part-time and whole-time employment, and I remember the word "substantially" being introduced before the words "whole time" or "part time". I am sure that no one wants to stop anyone who is a Commissioner from doing anything else in addition to his work with the Commission, but the idea is that the Commissioners should make their main work, for the years that they are Commissioners, the work of the Law Commission. There I hope I carry the noble Lord, Lord 'Tangley, with me.

This Amendment covers two points. I was glad to have the Lord Chancellor's assurance that he did not intend to engage anyone for more than five years. That, I think, was the period that I put forward on Second Reading. If that is not his intention, I am at a loss to see what valid grounds he has for objecting to the idea of expressing that intention in the Bill. I think it is extremely important that there should be a limit. Whether that limit is three, four or, indeed, five years is of little significance, because of the power given by the Bill to re-employ. Indeed, I think the fact that Commissioners can be reappointed is an argument in favour of the shorter period rather than the longer period.

I am not at all satisfied by the Lord Chancellor's reply to this Amendment. We heard him very fully, and I do not invite him to add to what he has said. I would suggest, however, that if my noble and learned friend Lord Simonds felt inclined to move the first part of this Amendment, down to the word "years", we ought to carry that into the Bill, and at a later stage, if need be, an Amendment can be moved altering the "three" to "four" or "five", as the case may be. But the hour is getting on, and we have covered a good deal of ground. I would make that suggestion to my noble friend. I feel that no good grounds have been advanced for not making this change in the Bill.


Perhaps I may say one further word. In the first place, I would assure the noble Lord, Lord Brown, whom I had the pleasure of hearing for the first time, that I neither have my tongue in my cheek nor am moved by any political motives.


If I may interrupt, I was addressing my remarks to the Opposition Benches.


I hope the noble Lord will realise, when he has been here a little longer, that in this House constructive sincerity is found on all Benches, quite irrespective of Party.


Anyway, I have served the law for nearly sixty years, and for twenty years in your Lordships' House, and I hope I have the reputation of not having my tongue in my cheek. As to the Amendment, I should like to ask the Lord Chairman whether I am in order in moving the first part of the Amendment dealing with the term, and seeking leave to withdraw the second part of it which deals with "whole time".


There are clearly two ways, at least, of dealing with this point. I would suggest, first, that it might be done by a noble Lord moving an Amendment to the Amendment. That Amendment to the Amendment would be to leave out all the words after the word "years", in the second line of the main Amendment. I would then put that first, and it would be either agreed or negatived; and then I would put the Amendment as it was originally moved, with or without the second part.


I am obliged. I will ask my noble friend Lord Swinton to move an Amendment to the Amendment to that effect.


I beg leave to move, as an Amendment to the Amendment, to leave out all the words after the word "years" in the second line.


Is it the case that one can move an Amendment to an Amendment on the Marshalled List without submitting a Manuscript Amendment to that effect? It would merely mean handing in a piece of paper, but I think that is the way to conduct the Business of the Committee.


I should have thought that it was in order to put it in the way I have suggested, but if the noble Earl would like to write it down, I should be happy to read it out.


I will write down the Amendment .


The Manuscript Amendment is:

Resolved in the affirmative, and Amendment, as amended, agreed to accordingly.

6.38 p.m.

VISCOUNT DILHORNE moved, in subsection (4), to leave out "high". The noble and learned Viscount said: This is an Amendment of an exploratory character, and I hope that it will not take long. From what the noble Lord said earlier, I take it that this Committee stage will be adjourned somewhere about 7 o'clock and it may be convenient to dispose of this Amendment before that time. There

"Amendment moved to Amendment No. 5—in line 2, after the word 'years', leave out all the words to the end of the Amendment."


I beg to move.

Amendment to Amendment moved—

In line 2 of Amendment, after ("years") leave out all the words to the end of the Amendment.

6.30 p.m.

On Question, Whether the Amendment (No. 5), as amended, be agreed to?

Their Lordships divided: Contents, 38; Not-Contents, 34.

Devonshire, D. Kinnoull, E.
Ailwyn, L. Dilhorne, V. Mancroft, L.
Brooke of Ystradfellte, Bs. Drumalbyn, L. Massereene and Ferrard, V.
Carrington, L. Dundee, E. Riverdale, L.
Chesham, L. Erroll of Hale, L. St. Aldwyn, E. [Teller.]
Cohen, L. Falkland, V. St. Helens, L.
Colville of Culross, V. Ferrers, E. Selkirk, E.
Conesford, L. Ferrier, L. Sherfield, L.
Cowley, E. Grenfell, L. Simonds, V.
Cullen of Ashbourne, L. Grimston of Westbury, L. Suffield, L.
Daventry, V. Horsbrugh, Bs. Swinton, E.
Denham. L. [Teller.] Howard of Glossop, L. Tangley, L.
Derwent, L. Killearn, L. Wolverton, L.
Addison, V. Henderson, L. Peddie, L.
Beswick, L. Hobson, L. Phillips, Bs.
Bowden, L. Hughes, L. Rhodes, L.
Bowles, L. [Teller.] Leatherland, L. Robertson of Oakridge, L.
Brockway, L. Llewelyn-Davies, L. Shepherd, L. [Teller.]
Brown, L. Longford, E. (L. Privy Seal.) Silkin, L.
Burden, L. Merthyr, L. Snow, L.
Champion, L. Mitchison, L. Sorensen, L.
Francis Williams, L. Morris of Borth-y-Gest, L. Summerskill, Bs.
Gaitskell, Bs. Morris of Kenwood. L. Swanborough, Bs.
Gardiner, L. (L. Chancellor.) Parker of Waddington, L. Taylor, L.
Granville-West, L.

On Question, Amendment to Amendment agreed to.

will be a number of points to raise on the Question, "That Clause 1 stand part", and it would be convenient to take that on the next occasion.

This Amendment is to find out the reason for treating the holders of judicial offices differently in the Bill. If your Lordships look at the Bill, you will see that there is express provision in subsection (4) that the holder of high judicial office may he 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 Bill makes provision for the appointment of holders of other judicial offices, and there is no corresponding provision to subsection (4) relating to them. So I ask the question: Why should not all the judges be treated in the same way?

THE Lord Chancellor expressed the view that the holder of high judicial office, after he had served as a Commissioner, would go back to the Bench a better judge. I am not wishing to debate that point with him to-night—it may well be right. But if it is right, why should the holder of high judicial office differ in that respect from, say, the holder of a county court judgship? Might he not go back to the county court bench and be a better judge? As the Bill now stands, if I understand it correctly, if the holder of any other judicial office is to accept an appointment as a Commissioner he will be required to resign his office.

The noble and learned Lord the Lord Chancellor said, again on Second Reading, that he would not get a judge—and I think he meant a High Court Judge—if he had to resign from the Bench in order to undertake this work. I have some doubt whether he will get the holder of any other judicial office to serve if he has to resign. Frankly, I am at a loss to understand why it is necessary to single out for special treatment, as subsection (4) does, the holder of high judicial office. I put down this Amendment so that the same provision will apply to the holders of any judicial office who are appointed to the Commission. I have put my point very shortly, but I think it requires an explanation. I beg to move.

Amendment moved— Page 1, line 18, leave out ("high").— (Viscount Dilhorne.)


I gather that this is an exploratory Amendment. We all have in our minds, I suppose, the sort of quality of people we want as Law Commissioners. Frankly, we want the best legal brains we can get. This is a big planning job, and I have not contemplated that anybody of the kind referred to would really be suitable. I suggested that one could conceive a case in which a Lord Chancellor who had already realised that a particular county court judge was of High Court Judge status, and who was about to make him a High Court Judge, might think it unnecessary to go through that formality just for a day. But the intention is that the Law Commissioners should be men of a higher standing than those men who would be likely to be found among the ranks of the county court judges or stipendiary magistrates.

It is contemplated that their remuneration, while perhaps not as high as that of a High Court Judge will be higher than that of a county court judge. Therefore I think it very unlikely that we should find among stipendiary magistrates or county court judges the brains really needed if we are to have the sort of Law Commission we ought to have. One could not expect a High Court Judge, if he did become a Commissioner, to go back to some other job at a much lower remuneration. That is why the Bill provides that such a man shall remain a High Court Judge, but that, so far as anybody else is concerned, his remuneration shall be agreed with the Treasury.


My experience —and of course I had a great deal of experience when I had to consider the appointment of High Court Judges—was that one found men of the highest ability who were willing to take the job of county court judge to save themselves the strain and stress of a busy counsel's life; and I am sure that, by what he has said, the noble and learned Lord is depriving himself of a very valuable possible member of his Commission. It can do no harm, at any rate, for a Lord Chancellor to have a chance to appoint a county court judge as a member of the Commission; and such a person having been given the chance, he should also have the opportunity of returning to his job, if he thinks fit.

I do not like the noble and learned Lord's denigration of county court judges as a body. If he accepts—as I think he ought to—that there are among them very able men who are qualified to sit as Commissioners, he ought to accept this Amendment, which would mean that such a man, having been appointed to be a Commissioner, may return to his office if he thinks fit. So I would ask the noble and learned Lord to consider this point further.


I certainly did not intend to denigrate county court judges. All I said was that the status and capabilities of those whose services I hoped to have as Law Commissioners would be higher, I hoped, as would their remuneration. I think it is important to see the sort of status Law Commissioners are intended to have, but this Amendment would be an unsuitable way to do it; because if such a man remains, he gets his remuneration as a county court judge. But why should he have a lower remuneration once be becomes a Commissioner?


The noble and learned Lord asks a question, and he asks it, no doubt, in a rhetorical form. I would answer by saying that the county court judge should surely have the choice. It is for him to decide.


I have listened with interest to what the noble and learned Lord has said, and I think his argument falls between two stools. He said that, so far as he is concerned, he does not think it would be right to appoint anyone as a Commissioner who is the holder of anything less than a high judicial office. If so, this Bill is drawn too wide, because it permits the appointment of those who hold inferior judicial offices. What is required is the insertion of the word "high" in line 12. I myself share the view of my noble and learned friend. I think that one might well have a High Court Judge as Chairman, with a barrister, a solicitor and an academic lawyer; and one might well find it useful, for the very reason given by my noble and learned friend, to have someone who is well known and accepted as being a brilliant lawyer who has taken a county court judgeship. Why, then, should it be impossible for him to return to the county court bench when he has served his spell as a Commissioner?

The provision for the holder of a high judicial office is that he serves as a Commissioner and then goes back to the Bench. I may have misread the Bill, but it seems to me that, so far as the county court judge is concerned, he cannot become a Commissioner unless he ceases to be a county court judge. Of course it could be said that when he ceases to be a Commissioner he might be reappointed a county court judge. No doubt the Lord Chancellor of the day would promise that, if there was a vacancy occurring; but I do not think there is any logical ground for this separate treatment.

If the Commissioners are going to be paid a higher salary than county court judges, I would suggest to the noble and learned Lord, if he wants to appoint a county court judge, or a judge in the criminal courts who has established a great reputation as a lawyer, that he should make provision for them to be able to draw the salary of a Commissioner but without the necessity of resigning from their judicial appointments. I think there is a real point here which I would ask the noble and learned Lord to consider between now and the later stage, because I think it is indefensible to draw this distinction between the way holders of high judicial office and those who hold other judicial offices are to be treated. If the noble and learned Lord will say that he will consider this matter, I shall be pleased to withdraw the Amendment, but I do not think that, so far, he has said that.


I hope I am always ready to consider anything, but this is getting into great difficulties. What is contemplated, as I understand it, is that a county court judge would remain a county court judge while having —which: his county court judge's remuneration, or a higher remuneration than that of any other county court judge in the country?


I can easily answer that. I think he should get his salary made up to the salary for the work that he is doing, but he should not be required to resign from the county court bench; and when he ceased to be a Commissioner he should be able to go back and continue his judicial work.


I am certainly prepared to consider that.


I am grateful to the noble and learned Lord for that assurance. Although I have dealt with this quite shortly I am ready to discuss it further with the noble and learned Lord, should he so desire. I think there is a real point here where the Bill can be improved, and in those circumstances I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 1 shall stand part of the Bill?


There area number of points I was wanting to raise on this Question. I do not know whether it will be possible to deal with them all by 7 o'clock.I suggested to the noble and learned Lord that when we had dealt with this last Amendment, which I thought would take longer than it did, it might be a convenient moment to break off.


I wonder whether the noble Lord would not like to get rid of Clause 1 to-day. We have a great many Amendments to deal with.


I doubt very much whether we shall. I have a number of points that I want explained. I will certainly start if the noble Lord likes, but I am quite certain that we shall not finish by 7 o'clock.


If the noble Lord prefers not to start to-night we can adjourn the Committee.


I prefer not to start to-night. I think it would take less time if I did not start to-night.

House resumed.