HC Deb 13 June 1895 vol 34 cc1021-35

On the Order for the consideration of this Bill,

*MR. JAMES LOWTHER (Kent, Thanet) rose to move that the Bill be recommitted to the former Committee, in respect of Part V. and Part VI. He said that he did not make this Motion as representing the views of the citizens of Glasgow, or from any local standpoint. He did so solely on the ground that, in his judgment, the Bill offended against certain recognised principles upon which private legislation was founded. The first part of the Bill to which he took exception was Part V., which consisted of a clause which, with certain qualifications, practically gave power to the Corporation of Glasgow to appoint stipendiary magistrates and to vary their duties. If there was one principle which was held in greater regard than another by Parliament and the country at large, it was the principle of the independence of the judiciary—that was to say, that persons learned in the law, appointed to hold judicial offices, so long as they conformed to the general principles which guided the discharge of judicial duties, should be independent and irremovable, except on the distinct ground of incapacity or misconduct. That was a principle to which Parliament had rigorously adhered, and which commanded universal assent in the country. How was that principle dealt with in this Bill? Under Clause 24 the Corporation of Glasgow originally sought to obtain the entire appointment and control of these judicial officers; but, in consequence of the action of the Committee, that very objectionable feature had been to some extent mitigated. It was now laid down in the clause that the Secretary for Scotland might, on the application of the Corporation, appoint one or more Magistrates as the Corporation might from time to time think necessary. But the clause went on to say that the Corporation might define, add to, or vary the duties of the Magistrates. Thus, the House would see that these Magistrates would be dependent on the whims and caprices of the Corporation, and that in his judgment would be a great evil. There was a further provision, which declared that the Magistrates should not, without the permission of the Corporation, undertake or discharge any other duties. It was a generally recognised principle that a judicial officer should devote the whole of his time to his judicial duties; but this clause gave a dispensing power to the Corporation to refuse this permission to one Magistrate or to grant it to another. He had known a case—the names of the locality and of the individual were not material—in which the firmness and independence of a magistrate had been tested to the utmost by those who might be described as busybodies or patriotic persons, according to the view that was taken of their action. His attention had only to-day been drawn to a case in the colony of Victoria, where a judicial officer, exercising functions corresponding to those of a county court judge, made an appeal to the parties to a suit, in which a prominent politician was largely interested, to allow the case to go to a higher tribunal, because, as he said, it was impossible for a person dependent as he was upon the breath of public opinion to discharge his duty faithfully and fearlessly. What would be the position of a stipendiary magistrate in Glasgow under such a clause as this? In a large number of cases that would come before him the Corporation, his masters, would be parties to the proceedings. Take a class of cases constantly occurring in England—summonses against parents by school attendance committees. It frequently happened that, if the magistrates exercised their discretion in the interests of humanity in the sentences they imposed, they were denounced as acting contrary to the spirit of the statute. A bench of magistrates to which he belonged had been attacked on that score; but he need scarcely add that they did not allow themselves to be influenced by these attacks. If there were such cases in Glasgow, what would be the position of the unfortunate stipendiary magistrate? He did not come forward with any pretence to the possession of local knowledge, and his only object was to bring before Parliament what he considered to be a grave departure from a recognised principle established by Act of Parliament, and to ask the House whether such departure was consistent with the independence of the judiciary, which had always been strongly insisted upon in this country. The corporation said that the provisions of the Sheriff-Substitute Act of 1875 were inadequate to the effective regulation of the office. But why were they? The real reason, he believed, was that the Act contained salutary provisions which were absent, from this Bill. The Act said that a judge of police might be removed from his office by one of Her Majesty's Principal Secretaries of State for incompetence or misbehaviour, but could not be subjected to interference from any other quarter. That was the general statute law applicable to Scotland, and on what ground was the protection afforded by the Act to be withdrawn from the stipendiary magistrates for Glasgow by this Bill? He proposed to send the Bill back to the Committee without any mandatory instruction, because he had full confidence in the wisdom and judgment of the Committee, and believed that, if their attention were drawn to the difference between the Bill and the general statute law they would modify the provisions of the Bill, and reconsider any decision at which they had formerly arrived. Part VI. of the Bill had been to some extent modified by the Committee, and the celebrated cat-and-mouse clause had been rendered less objectionable, as it had been put into a somewhat less ridiculous form than, it occupied in the Burgh Police (Scotland) Act, 1892. That was a Bill of 518 clauses, and it was hurried through Parliament at the end of a Session.

MR. J. H. DALZIEL (Kirkcaldy Burghs)

It was a Conservative Government.


continued, that he did not care what Government hurried it through; all the same, it was a scandalous proceeding. As to this Part VI. he was prepared to deal with it in detail if necessary; but, in the first instance, he would move the Motion standing in his name. The Burgh Police Act, passed under the circumstances he had referred to, contained absurdities equally glaring, whatever Government passed it; while the present Government, if they gave their sanction to the present Bill, could not escape the charge that they had allowed the corporation to embody in a private Bill provisions contrary to those of the general law. Many of these clauses were so absurd that, when the House dealt with them seriatim, he hoped it would see its way to omitting many of them from the Bill. The Motion he made was not intended to preclude the discussion of the other Amendments on the Paper. The right hon. Gentleman concluded by moving his Motion.

*MR. C. H. HOPWOOD (Lancashire, S.E., Middleton)

seconded the Motion.

*MR. WALTER LONG (Liverpool, West Derby)

said, that as he was Chairman of the Committee to which this Bill was referred, it might be convenient if at that moment he said a few words on behalf of the Committee. His right hon. Friend based his attack on the Bill in its present form, and the Committee which passed it, on the allegation that Clause 24, as it had emerged from the Committee, would alter the law which had hitherto governed judicial appointments in this country, and he had suggested that if the Corporation of the city of Glasgow were inclined to maladminister the affairs of that great city, they could practically coerce their stipendiary magistrate. His right hon. Friend had entirely overlooked Sub-section 9 of that clause, which made any such action on the part of the Corporation of Glasgow absolutely impossible, for the simple reason that it provided that the stipendiary magistrate, when appointed, should hold his office during Her Majesty's pleasure. So it would be impossible for the Corporation, even if so minded, to remove him.


interposing, said, he did not suggest that under the Bill the Corporation would be empowered to dismiss the stipendiary, but the Corporation might submit him to much inconvenience.


said, he certainly understood his right hon. Friend to say that the practice of Parliament had been to make these judicial appointments absolutely independent of the control of the local authorities. There was all the difference in the world between giving the Corporation powers to arrange the duties of the magistrate, and giving power to interfere with the discharge of his duties as to make them unpleasant for him. The right hon. Gentleman had paid testimony to the services the Lord Advocate rendered to the Committee which considered the Bill. As a rule the Police and Sanitary Committee, in dealing with Bills concerning England and Wales, were favoured with the presence of a representative of the department affected—the Home Office, the Local Government Board, or whatever it might be—whose advice was extremely useful; who watched the Bill in conjunction with the Committee, and gave them information as to the effect of the clauses and proposals of the Bill as compared with the general law. But where a Bill affecting Scotland or Ireland was before the Committee, the Committee was left to its own resources. In reference, however, to the Bill the House was now discussing, it seemed desirable that the Committee should have expert assistance from the Scotch Office, and the Secretary for Scotland was good enough to accede to his request that the Lord Advocate should attend the sittings of the Committee and give the benefit of his experience and advice. No doubt the Bill effected some change in the general law of Scotland. Upon what evidence, it might be asked, was the change made? This was not a matter on which local evidence could be invited from Glasgow, or upon which evidence from the Glasgow Corporation would have been of the slightest assistance to the Committee. The question involved was whether the administration of the law in the city of Glasgow by the stipendiary magistrate would be likely to be injuriously affected by the adoption of the proposals contained in the Bill, and he submitted with great respect to the House, that it was impossible for the Committee to have gone to a higher or more trustworthy source for evidence on a point of that important and complicated character than to the head of the Scotch Bar. He was quite confident—and he knew nothing of the feeling for or against this Bill in the locality—that, if in the opinion of the Lord Advocate the adoption of the provisions of the Bill would be injurious to the efficient and pure administration of the law, or would tend, in the smallest degree, to diminish the absolute independence of the stipendiary, no man worthy to be Lord Advocate—still less the right hon. Gentleman who now filled that position—would have hesitated to have advised the Committee not to assent to the proposals of the Corporation, and, most unquestionably, the Committee would have resisted those proposals. With regard to the second charge against the Bill, he understood that the right hon. Gentleman did not object so much to the action of the Committee as to the action of the late Conservative Government, in passing a Bill which, he said, was ill digested. His right hon. Friend had found great difficulty in digesting much that took place in the last Parliament, but seemed to find greater difficulty in digesting some of the measures of the present Parliament. At all events, what blame there might be rested on the fact that the Corporation of Glasgow desired to possess, in a limited degree, the powers conferred by Statute upon other localities, and the Committee had an assurance from the head of the Scotch Bar and a member of the Scotch Executive, that this was reasonable and might be fairly assented to. He respectfully asked the House, having regard to the fact that this Bill was carefully considered, and that the Committee had the exceptional benefit of the advice of the Lord Advocate, whether it would be wise to recommit the Bill in order that the Committee upstairs might be called upon, by the action of the House, to reverse the decision at which he could assure the House they arrived after deliberate inquiry, in no sort of way hostile, in the full belief that the powers asked for might be fairly conceded to one of the geatest corporations in the kingdom. Was it not reasonable that the Committee to which the Bill was referred should have some regard for demands of the kind when made by bodies so important and trustworthy as they believed the Corporation of the city of Glasgow to be?


said, he would not say a word against the Committee or the Lord Advocate. No one had more respect for the qualities of the Lord Advocate than himself. But he did not think his action conclusive in this matter. He seconded the Motion that he might have an opportunity, on behalf of those who administered the law, of insisting on the dignity of the administration of the law, and the independence of judicial officers being preserved, as it would not be by this Bill. The Bill gave the appointment of stipendiary magistrates in Scotland to the Secretary for Scotland. In England, the appointment was always in the name of Her Majesty. The Vote might be passed by with the comment that he did not know why this had been done. Clause 1 of the Bill he made no objection to. Clause 2 provided that, subject to the approval of the Secretary for Scotland, the Corporation might define, and, from time to time, add to or vary the duties of the stipendiary magistrate. There was no limit here to the extent to which his duties might be added to. By Section 13, the Corporation might, from time to time, determine the court or courts in which the stipendiary might act, and the number of the sittings of each court or courts. Here the intervention of the Secretary for Scotland, for the stependiary's protection, was not provided—he was made absolutely the servant of the Corporation. He joined in the tribute that had been paid to the Corporation of Glasgow, but he knew that in many corporations there were little jealousies, and schemes; and slights were sometimes put upon a man. If they wanted to get a man out of his office they could make it disagreeable for him, or put some slight upon him. It was true the stipendiary was protected so far as removal from his position was concerned by a later clause. When appointed, he was presumed to be able to discharge his duties efficiently and to be master of himself and his court. He would ask the Lord Advocate whether a member of the Bar who was appointed a stipendiary magistrate, and who was presumably duly qualified for his position, ought to be subject to the ruling of the town clerk of the corporation. He submitted that a stipendiary magistrate when he was appointed ought to be subject to no master, and that his actions should be regulated by his own conscience alone. Clause 5, which proposed to provide that a stipendiary magistrate should not be permitted to discharge any other duties than those which appertained to his own office was in his view a most unnecessary one, because no one would suppose that a stipendiary magistrate could perform any other duties than those imposed upon him by his office. The mere fact that a stipendiary magistrate was appointed to his office implied that he undertook to discharge all the duties that were imposed upon him by statute, and that he would devote his whole time to the performance of those duties. Holding, as he did, an office akin to that of a stipendiary magistracy, he felt the necessity of being protected against the idea that might be entertained in mean minds that a magistrate might take a certain course in order to keep his masters in good temper.


Order, order! I was not aware until this moment that the clause that, has been discussed, with reference to the recommittal of the Bill, was the same Clause 24 with regard to which there is a Motion on the Paper. I therefore think that it would be more convenient if the discussion were continued on the Motion to leave out Clause 24.


asked leave in the circumstances to withdraw his Amendment.

Amendment, by leave, withdrawn.

MR. CALDWELL moved to leave out Clause 24, which, he said, dealt with the question of the stipendiary magistrate, and which repealed a provision in a public statute. The clause introduced a novelty in procedure to this extent, that the Corporation of Glasgow were seeking by it to cancel a public statute. He held that it was the duty of the Committee, which considered the Bill, to call evidence for the purpose of finding reasons why the existing law of Scotland was not sufficient for the purpose of carrying out the duties, and why a change in the law was necessary. On this point no evidence was taken. The Chairman of the Committee sent for the Lord Advocate, who merely stated that so far as the Scottish Office was concerned, they saw no objection to the proposed modifications in the law. There could be no doubt what the existing law of Scotland was, as regarded the magistracy. It was precisely the same as the law of England. Any local authority might petition for the appointment of a stipendiary magistrate, but the moment the Crown appointed a stipendiary, all interference on the part of the local authority was at an end. In no case either in England or in Scotland, had a local authority ever attempted to interfere in any way with a stipendiary after he was appointed. But this Bill purposed to introduce a principle which was not admitted either in the law of Scotland or the law of England—namely, the right of a popularly elected body to interfere with, and to dictate to, the stipendiary magistrate, where he should sit, and the number of hours he should sit. He was certain that they could not inspire confidence in their magistrates, if they allowed those magistrates to be at the mercy of the town council, for the purpose of being removed from one court to another in any way the town council might think fit. In Glasgow there was considerable alarm at the extreme powers contained in this Bill. In Clause 24 it was sought to repeal a public statute, and if this proposal were brought in, in a private Bill, it would deprive the House of legitimate opportunities of considering it. Everyone knew the inexpediency of discussing in a private Bill questions relating to the administration of justice. There was no evidence before the Committee, nor anything else to show why the system of the public law should be changed, and if it ought to be changed it should only be by public statute. They had had the question of stipendiary magistrates brought up in Scotland in 1892. The Burgh Police Act applied to stipendiaries in every burgh of Scotland. The Public Statute in Scotland was—that the Commissioners might resolve to appoint a stipendiary at a fixed salary, possessing the qualifications required, and he could only be removable from his office for incompetency or misbehaviour in the same way as was the case with the sheriff's substitute. When the Bill of 1892 came before the Committee there was one feeling in Scotland—that the magistrate should be independent of the sheriff-substitute. A stipendiary magistrate was entitled to a pension as much as the sheriff-substitute, but where was that pension provided for in this Bill? Nowhere. It was proposed to modify his position, and to give him no pension. Glasgow was an important city, and why should it not be treated with the same attention as the smallest burgh in Scotland? Even policemen were entitled to a pension, and why then should the Glasgow magistrates be refused one? He was surprised that the Lord Advocate should ever have thought of placing the city of Glasgow in a worse position. The public law in England did not allow this interference, and by public statute in Scotland there was no such power of interference. This was the first occasion on which it had been proposed to alter the existing public law in Scotland as regarded stipendiaries. He therefore asked the House to delete this clause, and would leave Glasgow in the same position as the rest of Scotland.

*MR. HARRY SMITH (Falkirk Burghs)

seconded the Amendment. He said that, during his experience, there had never been any friction between the Court and the municipality of the city in which he had resided, but he was not sure that that would have been the case if the judicial office had been in any way under the control of the Corporation. The promoters of this Bill had three objects, and he thought the House would be satisfied that none of those objects were necessary or desirable. They wished, first, to provide for the appointment of stipendiaries in Glasgow; that was a good object, he admitted, but there was no need to come to Parliament for that, because the Act of 1875 already gave that power. The promoters asked, secondly, to define the duties of the stipendiaries to be appointed, and that was entirely unobjectionable, but they did not propose to define the duties in the Act of Parliament, but that Parliament should delegate to the Corporation the power to define the duties of the stipendiaries. That was not a very material drawback to the Bill, because to do so they had to apply for the sanction of the Secretary of State for Scotland. They desired, thirdly, to determine the courts in which the stipendiaries were to sit, which in itself was also an unobjectionable proposal, but they did not ask the House to do it, but to delegate to the Corporation of Glasgow the determination of the courts (and the time and place) where the stipendiaries were to sit. And these things the Corporation seeks power to do without the sanction of the Secretary of State. If the Bill were passed as it stood it would indefinitely increase the burden of work which might be thrown on the stipendiary magistrates, and the Corporation might capriciously send stipendiaries east, west, north, or south, to any of the nine courts. The judge ought to be as independent of the prosecutor as he was of the accused.

*THE LORD ADVOCATE (Mr. J. B. BALFOUR, Clackmannan and Kinross)

said, although this was not a Government Bill, as repeated reference had been made to himself in the course of the discussion, he thought it was right to explain his views. The Bill, as it had come from the Committee, had been attacked on several grounds. His hon. Friend the member for Mid Lanark had spoken of what he called the general law of Scotland in regard to the appointment of stipendiary magistrates. There was no such general law. In the Act of 1875, the main object of which was to regulate the Sheriffs' Courts, power was given to appoint a police magistrate for Glasgow. But that was a unique and solitary provision in the law of Scotland at that time. That was the state of matters down to 1892, when authority was given for the appointment of stipendiary magistrates by police burghs if they chose to exercise it. But that Act did not apply to Glasgow, and, therefore, Glasgow was not affected by it, though the city might have adopted it if it had chosen. The first complaint made by his hon. Friend was as to the method of appointing stipendiary magistrates, and he suggested that all officers of that class should be appointed by the Crown. But he would remind his hon. Friend that in the Act of 1875 the appointment of the stipendiary magistrate for Glasgow was vested in one of Her Majesty's principal Secretaries of State, and by the Statute creating the office the Secretary for Scotland, he took the place of the Secretary of State in that matter. The Police Act provided that the Secretary for Scotland was to appoint the burgh police stipendiary. The next point referred to by his hon. Friend was, that the Bill gave power to the Corporation, with the approval of the Secretary for Scotland, to vary the duties of the magistrate. It was very necessary that some one should have that power. The Corporation, however, would merely suggest what the changes should be, and their suggestion would be subject to the approval of the Secretary for Scotland, who would thus have the final and effective voice in the matter. Inconvenience had been found to arise in Glasgow from the want of such power. Then it was said that the Corporation would have the power to determine the particular Courts in which the stipendiary magistrate should sit. That proposal arose from the fact that there were nine Police Courts, which were usually presided over by unpaid magistrates. A bailie might be absent from one of them, and it was only reasonable that provision should be made for the stipendiary taking the business of the Court under such circumstances. Again, complaint was made that the Bill would place a judicial officer under the Corporation. He should be extremely cautious against doing anything of that kind, and he ventured to say that no hon. Member attached more importance to the independence and the purity of the Bench than he did; but to give power to regulate the attendance of a stipendiary at a particular court on a particular day involved no interference whatever with his absolute independence. He submitted that there was no force whatever in the objections that had been urged against the Bill.

*SIR C. CAMERON (Glasgow, College)

said, they had two Acts permitting the creation of stipendiary magistrates for Scotland, and there was not a single stipendiary in the country at the present time. There had never been but one in Scotland, and he was appointed under the Act of 1875, and experience of the working of that Act showed the Glasgow Corporation that there were certain points which required amendment, and they came to the House to obtain it by this Bill. The great fault found in the Bill by his hon. Friend the Member for Mid Lanark was—that it did not provide for a pension for the stipendiary magistrate. He knew something of the people of Glasgow, but he did not know that they were particularly anxious to give pensions to their officials. The question of granting pensions to officials was one which must be decided on general grounds, and the fact that the Bill did not provide for a pension to the stipendiary magistrate in this instance was no justification of the hon. Member's very severe denunciation of the measure. It must be remembered that citizen magistrates were everywhere performing the duties it was proposed to hand over to stipendiaries, and the reason why they now came to the House was, that they felt that trained lawyers were more competent to determine certain cases than they were, and they asked for the provision in question in the interest of the administration of justice. It was said that this was an innovation in the case of the sole stipendiary that had ever been appointed in Scotland; that it was for the first time intended that his duties should be varied according to the discretion of the Secretary for Scotland. As a matter of fact, exactly the same thing was intended when the late Stipendiary Magistrate was appointed in Glasgow. This was clearly shown by the terms of the Commission under which the then Home Secretary, Sir Richard Cross, appointed him, which declared that the appointment was made subject to such regulations as the Home Secretary might make under any powers which might be conferred upon him by subsequent legislation. But the general legislation which Lord Cross contemplated did not take place, and when it was attempted to obtain the intermediation of the Secretary of State, it was found that he had no power to act. It was for the purpose of remedying that state of things, and to confer on the Secretary for Scotland the powers which Lord Cross hoped to have obtained, that this provision had been introduced. There was not the smallest reason for dealing with this clause otherwise than as with the rest of the Bill. It had passed the strongest Committee in the House and had received the imprimatur of the highest authority. Under these circumstances, he hoped that the House would reject the Amendment.

SIR JAMES CARMICHAEL (Glasgow, St. Rollox)

said, that there was only one point which had not received an absolute answer, namely, the assertion that the duties of Stipendiary Magistrates had not been dealt with in private Acts. In the Manchester Stipendiary Justices Act, 1878, the duties of Stipendiary Magistrates in Manchester were clearly defined, and what had been done in England might surely be allowed in Scotland. It was not, he thought, too much to ask that the same privileges as had been allowed by Parliament in the case of Manchester should be now extended to Scotland.


was proceeding to put the Question, when

MR. LEONARD COURTNEY (Cornwall, Bodmin) rose and said, that although this was, no doubt, primarily a matter of local importance, it was also one of general interest. He did not think it unwise that the provisions in the Bill should be rather closely scrutinised. At the same time, he was not prepared to go the length of saying that this clause should be rejected as a whole, and he hoped that the hon. Member who had moved its rejection would withdraw his Amendment, so that the House might consider whether some Amendment might not be made in particular parts of the clause. There were, he admitted, precedents for dealing with such matters as this in private Acts; but it was clearly most desirable that no discordance should be created between the Stipendiary Magistrates and the Corporate Authority. Although some latitude should be given to the latter, he thought it was rather dangerous that the power to direct a Magistrate to sit here one day and there another day should be given to the Corporation. The Home Secretary would know that it was sometimes necessary that magistrates should be moved about within the area of London. This was done sometimes by agreement between the Magistrates themselves arid sometimes by the Home Secretary. A Magistrate doing duty in a particular part of London might, perhaps, have got into collision with that part, and it might be found desirable that he should be moved to another part. Some such thing might arise in Glasgow in the future, and it was, he thought, desirable that there should be power to move Magistrates about. But he thought that all would recognise that it would be a very delicate office for the London County Council, for instance, to perform, if that body were invested with the powers which were now vested in the Home Secretary, to move Magistrates about within the area of London. If similar powers were to be conferred under the present Bill in reference to Glasgow, those powers, he contended, should be vested in an independent personage, of high legal or administrative authority. He thought, therefore, that the third sub-section should not be allowed to pass in its present form, but that it should be modified by introducing the approval of the Secretary for Scotland, or some high judicial authority to exercise the power. In the same way, he thought that Sub-section 8 also required consideration and modification. He hoped that the Amendment to reject this Clause in toto would not be persisted in, but he thought that, in reference to the modification of Sub-sections 3 and 8, there was ground for serious consideration, as to whether the House should not introduce into those two sub-sections a provision for the sanction of the highest authority. [Cries of "Move!"]


intimated, that the Corporation of Glasgow would be quite willing to assent to that.


proposed to withdraw his Amendment, and that the further discussion of the Bill should be deferred until to-morrow.

Amendment, by leave, withdrawn.

Debate adjourned until to-morrow.