§ 3.49 p.m.
§ Report stage resumed.
§ LORD HUGHESMy Lords, I need not take up much of your Lordships' time in moving this Amendment. This places the Scottish appointments under the same limit of five years, subject to reappointment, as your Lordships have already agreed to for the Commission under Clause 1. I beg to move.
§
Amendment moved—
Page 2, line 12, leave out from ("shall") to end of line 15 and insert ("be appointed for such term (not exceeding five years) and subject to such conditions as may be determined by the Secretary of State and the Lord Advocate at the time of his appointment; but a Commissioner may at any time resign his office, and a person who ceases to be a Commissioner shall be eligible for reappointment").—(Lord Hughes.)
THE EARL OF SELKIRKMy Lords, we discussed this matter on the Committee stage, and I should like to thank the noble Lord for the Amendment he has put down.
§ On Question, Amendment agreed to.
§ 3.50 p.m.
§ LORD HUGHESmoved, in subsection (4), to leave out "high". The noble Lord said: My Lords, with permission, I should like to speak to Amendments Nos. 9, 10 and 11 at one time, because they all bear on the same matter. These Amendments arise from the discussion which took place at the last stage. While the advice which I have been given is that the Bill, as amended, would not in any way restrict the opportunity for other members of the Judiciary—that is, other than holders of high judicial office—to be appointed under suitable terms, it is felt that if there is any doubt at all—and particularly since doubts have been expressed by members of the legal profession—it is better to make the position absolutely clear.
These Amendments place the Scottish Law Commission in exactly the same position as the other Commission. They remove any doubt which might be felt as to whether a sheriff could be appointed to the Commission without relinquishing his appointment as sheriff. The general effect of the clause, if it be amended, will be that if a member of any section of the 848 Judiciary is appointed to the Scottish Law Commission, he will continue to hold his judicial office. But whether he will be required to carry out his judicial duties will depend on the terms of his appointment as a Commissioner. The principle that will apply is that if his work on the Commission is on a whole-time basis, he will not be required to carry out his judicial duties. This will be the case with the Chairman, if, as it is suggested, he is a Court of Session Judge. If, on the other hand, the appointment to the Commission is on a part-time basis, as is contemplated will be the case for the ordinary members, there will be no occasion for complete exemption from judicial duties. Thus, under the clause, as amended, a part-time sheriff appointed to the Commission would continue to hold office and perform all his duties as sheriff.
Amendment No. 11 deals with the position of sheriffs-substitute as I indicated at the last stage the Government contemplated. At the present time, the Act of 1907 makes the appointment of sheriff-substitute a full-time one and prohibits a sheriff-substitute from being appointed to any office except such office as shall by Statute be attached to the office of sheriff-substitute. In the way the Bill has developed, it is accepted by the Government that it would be undesirable and unnecessary that, in relation to the Law Commission, a sheriff-substitute should remain under such prohibition, and the Amendment removes this prohibition in so far as possible membership of the Commission is concerned. It does not in any way alter the position of a sheriff-substitute in relation to other appointments.
I hope that these Amendments will satisfy the wishes expressed at the last stage that there should be the maximum amount of flexibility in the possible appointments to be made, and that your Lordships will agree that in these three Amendments we make certain that every possible section of professional skill which is available to the Secretary of State and the Lord Advocate in making the appointments will now be open to them. I beg to move.
§
Amendment moved—
Page 2, line 16, leave out ("high").—(Lord Hughes.)
THE EARL OF SELKIRKMy Lords, I am very glad that this Amendment clears up the position of the sheriff beyond peradventure. I think it wise to include the sheriff-substitute, though I do not think that it will be often necessary to appoint one, though the practical experience which sheriffs-substitute get may from time to time be extremely valuable in the sort of work the Commission has to do. I should like to thank the noble Lord for all these Amendments.
§ On Question, Amendment agreed to.
§ LORD HUGHESMy Lords, I beg to move this Amendment.
§
Amendment moved—
Page 2, line 18, after ("not") insert ("(unless otherwise provided by the terms of his appointment)").—(Lord Hughes.)
§ On Question, Amendment agreed to.
§ LORD HUGHESMy Lords, I beg to move this Amendment.
§ Amendment moved—
§
Page 2, line 19, at end insert—
("(5) Subsection (4) above shall have effect, in relation to a salaried sheriff-substitute, not-withstanding anything in section 21 of the Sheriff Courts (Scotland) Act 1907 (which among other things prohibit such a sheriff-substitute from being appointed to any office except such office as shall be by statute attached to the office of sheriff-substitute)").— (Lord Hughes.)
§ On Question, Amendment agreed to.
§ Clause 3 [Functions of the Commissions]:
§ THE LORD CHANCELLORMy Lords, this Amendment deals with the point raised by the noble and learned Viscount, Lord Simonds, on the Committee stage about the relationship between the Law Commission and the Statute Law Committee. The effect of the Amendment is to secure that the Lord Chancellor will remain in effective control of the consolidation programme and will be able to ensure that the Commission and the Statute Law Committee do not compete with one another in this field. The noble and learned Viscount had suggested that the subsection should be preceded by these words, and I have been happy to adopt that suggestion. I beg to move accordingly.
§
Amendment moved—
Page 2, line 41, after ("prepare") insert ("from time to time at the request of the Minister").—(The Lord Chancellor.)
§ VISCOUNT DILHORNEMy Lords, on behalf of my noble and learned friend, and on my own behalf, may I thank the noble and learned Lord the Lord Chancellor for accepting the suggestion made by my noble and learned friend Lord Simonds?
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR moved, in subsection (1)(e), to leave out ", at the request of the Minister, to". The noble and learned Lord said: My Lords, may I, in discussing this Amendment, speak also to Amendment No. 14? These Amendments give effect to the suggestion of the noble and learned Viscount, Lord Dilhorne, that the bodies to which the Commission may be required to give advice and information under paragraph (e) of Clause 3(1) should be restricted to authorities or bodies appointed by the Crown or by the Government.
§ The formula employed by the Amendment, "at the instance of the Government", will cover a body like a Royal Commission, which is appointed by the Sovereign on the recommendation of the Prime Minister, as well as other Committees which are directly appointed by Ministers. As I said on Committee stage, the reason why the clause was worded in that way was to give the Lord Chancellor discretion to enable the Commission to help bodies whose existence one is not able now to foresee, but I should be the first to agree that we do not want the Law Commission to go round assisting all sorts of miscellaneous bodies, otherwise they will never get their own work done, and the provision was intended mainly to help bodies like Royal Commissions. In these circumstances, I am happy to put down this Amendment, and beg to move accordingly.
§
Amendment moved—
Page 3, line 2, leave out from ("and") to end of line.—(The Lord Chancellor.)
§ VISCOUNT DILHORNEMy Lords, once again I must thank the noble and learned Lord for these Amendments. I think that they are entirely satisfactory and improve the Bill, not only by making it clear what are the other authorities or bodies to which the noble and learned Lord's mind was directed, but also by relieving the Minister of possible pressure 851 by outside bodies which, as my noble friend Lord Swinton pointed out, might arise as a result of the inclusion of the words "at the request of the Minister". We have not taken long on Report stage, but we have accomplished a great deal, and perhaps I may conclude by saying, "Thank you", to the noble and learned Lord the Lord Chancellor.
§ LORD CHORLEYMy Lords, I should like to say a word on this Amendment. It seems to me that the noble and learned Lord has found a way of going rather further than the noble and learned Viscount, Lord Dilhorne, wanted him to go—very nearly, if not altogether, as far as I was asking him to go. As I read it, it would still be possible for a body like the Institute of International and Comparative Law, provided that the Government indicated that they were to be given advice and information by the Commission, to apply for this and get it. In the words which he used in moving this Amendment the Lord Chancellor rather seemed to limit the advice and information to Royal Commissions or other institutions directly set up by the Government. I hope that he did not mean to limit it in that way, because it seems to me that it would to a considerable extent destroy the value of this provision.
I have already developed this argument previously. The absolutely essential matter seems to me that the Commission should be able to put out to learned bodies like the Institute and the law departments of universities a great deal of the spade-work in connection with the reforms of various aspects of the law upon which they are engaged, and obviously they will not be able to do that unless they are in a position to give some help themselves. The real question is whether the help is to be limited to Royal Commissions and Government-appointed bodies, or whether the Amendment will enable the Commission, provided that the Government give their backing to it, to get work done in the way I have suggested. I should be grateful if my noble and learned friend will deal with this point when he replies.
§ THE LORD CHANCELLORMy Lords, my noble friend Lord Chorley 852 will observe that this subsection does not deal with assistance which the Law Commission may obtain in their work from other bodies, but with assistance which the Law Commission may give to other bodies. The clause as originally drafted provided that they might give advice and information to Government Departments,
and at the request of the Minister, to other authorities or bodies concerned with the proposals for the reform or amendment of any branch of the law.That wording was very wide, and might well have meant that if the Boys' Brigade or, as was given as an illustration in another place, the Band of Hope were engaged in some work on law reform they might call upon the Law Commission to help them with it. That was not intended. It was intended to include only Government Departments and bodies like Royal Commissions. A Royal Commission set up to advise on questions of policy might well want some legal help, and it might be quite proper that the Law Commission should assist them. That was the original intention, and therefore when, in effect, the noble and learned Viscount said: "If that is intended to be the limit, why do we not say so?" I could see no objection; accordingly, I have provided so in this Amendment.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, this is the second Amendment on which I have already spoken, and I beg formally to move it.
§
Amendment moved—
Page 3, line 3, after ("concerned") insert ("at the instance of the Government").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.