HC Deb 27 July 1938 vol 338 cc3109-12
Mr. Robert Gibson

I beg to move, That leave be given to bring in a Bill to amend the procedure anent the appointment of justices of the peace in Scotland. The present procedure is that appointments of Justices of the Peace both in England and Scotland bear to be on the advice of the Lord Chancellor. So far as Scotland is concerned, the present procedure is not in accordance with Scottish sentiment, and in practice it meets, and has met in recent times, with considerable difficulty. The theory on which jurisdiction is exercised by the Lord Chancellor in the appointment of justices of the peace is, as I understand it, that the Lord Chancellor is head of the Justiciary. That is certainly true so far as England is concerned, but it is not true, as I think I shall be able to demonstrate very shortly to the House, so far as Scotland is concerned. For example, in England the appointment of High Court Judges bears to be on the advice of the Lord Chancellor. The corresponding appointments in Scotland are the appointments of the Judges of the Court of Session, and in practice these bear to be made on the advice of the Secretary of State for Scotland and are certainly never made on the advice of the Lord High Chancellor of England. In the case of the appointment of County Court Judges in England these, again, are, I understand, made on the advice of the Lord Chancellor. Corresponding appointments in Scotland, the

appointments of the Judges in the Sheriff Courts, bear to be on the advice of the Secretary of State for Scotland. Carrying the matter a little further, the appointment of King's Counsel in England bears to be on the advice of the Lord Chancellor, and hon. and learned Members representing English constituencies are very familiar with that procedure. In Scotland, however, the appointment of Scottish King's Counsel is on the advice of the Secretary of State for Scotland, and not at all on the advice of the Lord Chancellor. In point of fact the first acquaintance that the Lord Chancellor has with a new King's Counsel appointed in Scotland is when that particular King's Counsel appears in his professional capacity in the House of Lords or before the Judicial Committee of the Privy Council.

Again, I find that in England every writ of summons in the High Court is issued in the name of the Lord Chancellor. That is not the case with regard to summonses in the Court of Session. The Lord Chancellor has no functions and no jurisdiction whatever with regard to summonses either in the Court of Session or in the Sheriff Court of Scotland. Accordingly, so far as Scotland is concerned, the Lord Chancellor is not the head of the justiciary. Take the functions of justices of the peace in so far as these are judicial functions. In Scotland, practically speaking, they are confined to criminal matters. I think it is within the knowledge of all right hon. and hon. Members that the criminal law in Scotland differs very materially from the criminal law in England. Let me give one or two salient facts. The criminal jury in Scotland consists of 15 members and not of 12. In Scotland we have three verdicts, "guilty," "not guilty" and "not proven." There is no "not proven" verdict in England. The fact that the Scottish criminal jury consists of 15 allows a jury in Scotland to return a verdict by a majority, and that verdict by a majority rules. It is possible—this may alarm some hon. Members from South of the Border—for a death sentence to be pronounced in virtue of a majority verdict of a jury, by eight to seven. While still a junior counsel in Scotland I defended in the High Court a man who was found guilty by eight to seven, and he received a sentence of three years penal servitude.

In Scotland we are devotees of the democratic principle. There are so few "yes, yes men" in Scotland that our criminal procedure would break down unless majority rule held sway. That may sound very strange South of the Border. There is another fact that has relevance to the matter I am seeking to discuss, and it is this: While there is an appeal in civil cases from Scotland to the House of Lords, there is no such appeal in criminal cases. The final court of appeal of Scotland, in criminal matters, is the High Court of Justiciary, and there is no appeal from that court to the House of Lords. Accordingly, the Lord Chancellor has no means of learning, through the arguments of counsel, matters concerning the criminal law of Scotland.

I think I have said sufficient to show the difference between our Scottish judicial system and the English judicial system, and to show that the Lord Chancellor is not, in fact, the head of the judicial system in Scotland as he undoubtedly is of the judicial system in England. This Motion has been well received in all quarters. On this side of the House my hon. Friends are entirely in favour of it, and any hon. Members I have spoken to in other parts of the House agree that this is a change that ought to take place. The Press in Scotland has welcomed this Motion and is anxious that leave be granted to bring in the Bill.

Question, That leave be given to bring in a Bill to amend the procedure anent the appointment of justices of the peace in Scotland, put, and agreed to.

Bill ordered to be brought in by Mr. Robert Gibson, Mr. Davidson, Mr. Maclean, Mr. Johnston, Mr. Westwood, Mr. Duncan Graham, Mr. James Brown, Mr. Welsh, Mr. Kennedy, Mr. Barr, Mrs. Hardie, and Mr. Kirkwood.