CLAUSE 23.—(Appointment of Clerks in the Court of Justiciary.) (Hansard, 18 July 1933)

§ The LORD ADVOCATE
I beg to move, in page 14, line 19, to leave out the words: the Principal Clerk of Justiciary and The House will see that this Clause deals with the appointment of clerks to the Court of Justiciary, including the Principal Clerk and any depute, assistant or other clerk, and states that the right of appointment shall be vested in the Secretary of State. So far as these appointments are concerned, the effect of this Clause will be that the patronage of the Lord Advocate will cease. On consideration it has been thought right, so far as the Principal Clerk of Justiciary, who is really a legal officer, is concerned, that the patronage should remain in the hands of the Lord Advocate, and accordingly we are taking the words "the Principal Clerk of Justiciary"out of this Clause and propose to insert them in Clause 25, which will be the appropriate Clause to define the appointment of the Principal Clerk of Justiciary as coming 1715 within the patronage of the Lord Advocate.

§ The LORD ADVOCATE
I beg to move, in page 14, line 22, at the end, to insert the words: and shall be exercised after consultation with the Lord Justice General. This Amendment is moved in pursuance of an undertaking given in Committee.

§ Mr. BUCHANAN
Will the. Lord Advocate be good enough to tell us why a pledge was given in Committee that this alteration should be made, and why it is to be made?

§ The LORD ADVOCATE
The hon. Member for Gorbals (Mr. Buchanan) will see that this Clause deals with the appointment of clerks in the Court of Justiciary, and an undertaking was given in Committee that the Lord Justice General should be consulted, because it was thought right that the head of the Court of Justiciary should be consulted in a matter affecting the staffing of his court. It seems to me that it was a reasonable undertaking to give. It is to obviously desirable that the Secretary of State should have first hand advice from the court on these matters.

§ Mr. BUCHANAN
As I understand it there is consultation now without the necessity for an alteration of the law. I presume that before the Secretary of State changes the staff in a Department he does what everybody would say was a reasonable thing by consulting the appropriate people running the Department from day to day. I take it that that would be an elementary duty on the part of the Secretary of State, without the necessity for us to lay it down by Act of Parliament that he should do so. My criticism of this change is twofold. In the first place, there may be other people who should be consulted, but what we are doing here is to limit the power of consultation on the part of the Secretary of State to consultation with one particular man. In the second place, I think that by this change we are to some extent lessening the power of the Secretary of State. Where the Secretary of State makes an appointment he is entirely responsible to this House for that appointment, and he can be censured for it or 1716 cross-examined about it. Here we are saying that before he makes an appointment he must consult this other person—I have no objection to him consulting another person—and in future, if any criticism is raised in this House about such an appointment, the question may come in of the other person's advice having run in a counter direction. In other words we are, in effect, giving a person who is not responsible to Parliament a say in this appointment.
My main criticism is that this is an unnecessary change. It says that the Secretary of State, whether it be the present holder of the office or another, does not know whom to consult and that we cannot trust him to consult the right person. I say that in any appointment which he has to make it is the duty of the Secretary of State to consult everybody concerned. I am certain that the Secretary of State, if he were making an appointment in the Department of Agriculture, would consult various people. An Act of Parliament is not necessary to tell him to do so; he does it. If he appoints a sheriff or certain people in connection with a sheriff court he would consult the Sheriff Principal or the Procurator Fiscal. He does it now from day to day, and the Lord Advocate does it, and the Solicitor-General does it, without an Act of Parliament saying that they must consult particular people. What we are doing here is playing up to the vanity of a particular group. The official mentioned here may be an important person but he has no more right to be mentioned in the Act of Parliament than any other person. Take Mr. Jeffrey, who is head of the Board of Health. The Secretary of State must consult him in many matters in the course of the year and rightly consults him. In educational matters he would consult his advisers in that Department. Yet we do not name those people in Acts of Parliament, and why should we put in the name of this official?
Already the Secretary of State has the power to consult these officials, and for us to insert this Amendment is to cast a reflection on him, saying that he will not consult other people or cannot be trusted to do so. We are playing up to this official by giving to him what is given to nobody else, and that is a statutory guarantee that he has to be consulted. The Lord Advocate may reply to me that the power still remains with the 1717 Secretary of State, but I say that once we have passed this Amendment we have even the official named in it, by statute, some right in saying who shall he appointed. I put forward this point very strongly, because I am not going to hand over the right of appointment to any persons other than those who are responsible to Parliament. The change is a bad and an unnecessary change, and only lawyers would ask for it, and it is a gross reflection on the Secretary of State if he must be told by Act of Parliament whom he is to consult—not only the present holder of the office of Secretary of State, but any future holder of the office.

§ Mr. C. WILLIAMS
I should like to congratulate my hon. Friend the Member for Gorbals (Mr. Buchanan) on two points. This is the first time any Socialist Member has opened his mouth on this Bill, as far as I know, either in Committee or on the Report stage.

§ Mr. BUCHANAN
Not quite accurate but very nearly.

§ Mr. WILLIAMS
Well, there was a murmur just now. I congratulate the hon. Gentleman on having put a most important point. Only a short time ago the other part of the Socialist Opposition were asking to have a special trade union representative put on a certain body which was being set up under another Bill, and I would commend to the notice of the Government—I see one or two Whips about on the Treasury Bench, and I hope they will spread this wide through Government Departments—that the best case for not putting trade union representatives as special representatives on any body has been made by the hon. Member for Gorbals. He made a complete case against this kind of specialist, representation, and I congratulate hint on having knocked a very good nail into the coffin of the Socialist party.

§ M. BUCHANAN
Nonsense!

§ Mr. WILLIAMS
It may seem a little extraordinary that the Government should seek to insert this Amendment, but, on the other hand, when I look at the Bill and realise what we are doing, and remembering one or two of the Secretaries of State we have had in the last few years, and thinking of the type of person we may get, I feel it is 1718 important that in a question of making legal appointments there should be the very closest consultation between the Scottish Office and the great lawyers of the day. I say that without in any way controverting the general position laid down by my hon. Friend the Member for Gorbals; but recalling some of the dangerous people we had at the Scottish Office not very long ago I think it is absolutely essential that this Amendment should be inserted. Although as a general rule it is not well to lay down these commands, but, rather, to leave the Minister fairly free to act, I hope that on this occasion the House will accept the proposal of the Government.

§ The LORD ADVOCATE
I think there is some misapprehension on the part of the hon. Member for Gorbals (Mr. Buchanan). At the present time the right of appointment to the offices referred to in this Clause is not vested in the Secretary of State but in His Majesty the King. His Majesty has been pleased to concede his right of patronage in this matter, and a formal intimation to that effect will be made when we come to the Third Reading of the Bill. The hon. Member for Gorbals is quite right in saying that the Secretary of State for Scotland may consult anyone whom he likes without statutory permission or statutory right, but the view that was taken was that the Lord Justice General is responsible for the whole procedure of the Court and is responsible for the setting up and smooth running of the office, and that it is not unreasonable that the Secretary of State should be directed to take the head of the Court into consultation in making his appointment.

§ Mr. BUCHANAN
Could he not be trusted to do that without being directed?

§ The LORD ADVOCATE
He can be trusted absolutely.

§ Mr. BUCHANAN
You do it with every other Department.

§ The LORD ADVOCATE
I am sure that we could trust the Secretary of State for Scotland, either now or at any other time, past or future. This matter arises not only in Clause 23 but in Clause 24, which deals with the appointment of officers to the Court of Session, and I think that it occurs in other parts of the Bill. It would be an anomaly if we had 1719 it in Clause 24 and not in Clause 23. I think that there is very little substance in the objection, and I will ask hon. Members not to press it. The hon. Member for Gorbals should keep clearly in view that the Secretary of State for Scotland is under no obligation whatever to take the advice tendered. He remains master of the situation, subject, of course, to his responsibility to this House for any decision that he may make. He is enjoined by the Statute to take the views of the head of the Court, as the person who is responsible for the running of the Court, as to who are the proper people to be put into the responsible offices, and, in order to meet that situation we propose to insert these words in Clause 23, to bring it into line with Clause 24.

§ Sir MURDOCH McKENZIE WOOD
I think that there is a little more substance in the objection raised by the hon. Member for Gorbals (Mr. Buchanan) than the learned Lord Advocate gives him credit for. We are putting a duty upon the Secretary of State for Scotland, who is responsible to this House for the way in which he carries out the duty put upon him. Under the Amendment moved by the Lord Advocate, it is proposed to make him share that responsibility with a judicial officer, the head of the Court of Session, whom we cannot criticise in this House. Suppose there is an officer appointed to the Court of Session whose appointment turns out to be a bad one, or whose appointment the House of Commons may desire to criticise, whom are we to criticise? The Secretary of State for Scotland? The Secretary of State for Scotland will be able to say that he was not entirely a free agent in the appointment of that officer, because he was directed by Statute to consult the head of the Court of Session, a judge of the Court of Session, who is beyond the reach of criticism of this House. To make the Secretary of State for Scotland jointly responsible for something with a judge who is beyond reach of this House, is bad. It would have been much better if this had been left out entirely, and I hope that the Lord Advocate will reconsider the matter. If he does, I think he will see that there is a real point in the objection which has been made.