Part of the debate – in the House of Commons am 12:00 am ar 4 Rhagfyr 1973.
I think I should get on. I intend to make a number of controversial comments in this debate and to tread on quite a number of toes on that side and occasionally on some on this side. I beg hon. Members not to interrupt me, because many others want to speak.
I was going on to say, for the third time, that the House is bound to consider the part played by the court itself in these events. I dislike criticising either Sir John Donaldson or any of his colleagues on the bench. I have always regarded the Government as our proper target in these matters, and so far as I am concerned they are still the main target in this debate. Indeed, it has been my view over the last 18 months that what is basically wrong is not the character and conduct of the president of the court but the existence of the court itself.
Any High Court judge presiding over that court and trying to interpret this wretched Act will inevitably become involved in judgments which become the subjects of political controversy and in conduct which brings the reputation of the law itself into disrepute. That is the inevitable nature of the job, rather than of the man who is doing it.
However, having said that, there are two criticisms which must go on the record in relation to these events. They are mild criticisms and do not add up, in my view, to a case demanding a motion for his dismissal. But they are criticisms that I feel bound to make.
First, the court took an unusual course in deciding that the sequestration should be under its own control and not that of the other party to the dispute. I am advised that normally the administration of a sequestration order is in the hands of the other party and that this is a very unusual, almost unique, procedure.
In his judgment, Sir John Donaldson gave two reasons for following this unusual procedure. First of all, he said, since an industrial dispute was involved and bearing in mind that the two sides had to work together in the period ahead, he did not want them to be at arms' length from each other over the collection of money. He thought it was better that it should be done by another technique. I am paraphrasing, but, I hope, accurately.
Second, he said, the public interest was more closely involved in industrial relations matters than in normal civil litigation and therefore he felt that he had to take a personal responsibility for the sequestration. Therefore, he gave instructions to the commissioners whom he had appointed to seize £100,000 of the union's funds.
The point that I make in criticism of Sir John Donaldson is that he should have included in those instructions a specific instruction not to touch money that belonged to any earmarked or protected funds. He should have told the commissioners to avoid the political fund and also the staff pension fund, which it would have been equally improper to take for this purpose.
It is not sufficient for him to say, as he said in his speech in Glasgow the other night, that he had no knowledge of any political fund or of where it was invested. Having taken this responsibility, he had a duty to be aware of the danger of this course of action, to safeguard against it and to anticipate it by giving instructions to the commissioners along the lines I have mentioned.
My second criticism is that it was improper of Sir John Donaldson to make a speech in Glasgow on 26th November to explain and defend his action. A simple principle is involved. If a judge feels that he needs to correct what he considers to be false impressions arising from one of his judgments, the place for him to correct those impressions is in open court. The parties to the action can then be invited to make representations to him if they choose to do so.
Sir John could have acted as other judges have acted in the past, and made clear the reasons for some previous action, if he thought that necessary in a manner which would have been subject to the ordinary processes of law. There is no appeal against an after-dinner speech. I suggest that to make an after-dinner speech of that nature was wrong and a bad precedent. We must all hope that other judges will not follow Sir John Donaldson's example.
I have sympathy with the argument that judges should not be criticised publicly, because they have no right of reply. That is one of the reasons which led me to decide not to sign the early day motion to which reference has been made. I believe that argument is weakened, however, by the kind of public speech made by Sir John Donaldson on 26th November.