HC Deb 01 November 1946 vol 428 cc925-51

Considered in Committee.

[Major MILNER in the Chair]

CLAUSE I.—(Appointment, qualification and conditions of service of clerks of assize.)

11.8 a.m.

Mr. Rees-Williams (Croydon, South)

I beg to move, in page 1, line 8, after "barrister," to insert "or solicitor."

The object of this Amendment is to prevent the Lord Chief Justice from being obliged to appoint barristers, and only barristers, as clerks of assize. If the Bill is passed with the Clause as it stands, the effect will be to limit the choice of the Lord Chief Justice to one branch of the legal profession. This Clause changes the law. At present, those who have the choice of clerks of assize may appoint barristers, solicitors or other persons if they so desire, and this change, I suggest, is an undesirable limitation to one branch of the legal profession; in fact, as I pointed out on Second Reading, it is the closed shop at its worst. It has been supported, of course, by hon. and learned Members on both sides of the House on that ground, and it will be very interesting in the next Session when, as we understand, the closed shop is to be discussed, to hear the arguments of the right hon. and learned Member for the West Derby Division of Liverpool (Sir D. Maxwell Fyfe), of the hon. Member for Wirral (Mr. Selwyn Lloyd), and of other supporters of the closed shop principle in their own profession when it comes to dealing with the closed shop for the workers. We shall expect some extraordinary somersaults to be performed on that occasion or we shall expect them to come into the Lobby with us.

There are two ways of dealing with this matter in fairness. The first way is by throwing this office entirely open as, in fact, it is now, and there are arguments for that. The second way is by throwing open the office of clerk of assize to the whole of the legal profession. The arguments are nicely balanced. In the main, I prefer the second one. I think the Lord Chief Justice would probably consider it desirable to appoint someone with legal qualifications. But I would not object, myself, if the Solicitor-General so desired, to the first argument, that is, to leave the position as it is now.

There is no defensible argument, in my view, for the proposition under this Clause. It is an indefensible position, which has been maintained by the Solicitor-General and the right hon. and learned Gentleman the Member for West Derby. My object is to give the Lord Chief Justice power to choose the man he desires for this post, whether he be a barrister or a solicitor. If we have a thoroughly trustworthy man as Lord Chief Justice, and a distinguished lawyer in that position—as we have now—why fetter his power to choose the man he really desires? It is defended by the Solicitor-General, apart from the closed shop principle, on these grounds. On the Second Reading, my hon. and learned Friend said: I would remind the House that it has been possible for years for solicitors to be clerks of assize under the terms of the Supreme Court of Judicature Act, 1925. and I think I can say without fear of challenge that no solicitor has been. I presume they never wanted to be; they have not been in fact." —[OFFICIAL REPORT, 25th October, 1946; Vol. 428, C. 184.] For that presumption the Solicitor-General has no foundation whatever, because solicitors have never had the opportunity of being clerks of assize. If the posts had been advertised he would probably have been surprised at the number of solicitors who would have applied. Owing, however, to the method of selection of clerks of assize in the past, solicitors have not had the opportunity of applying. Clerks of assize have been appointed by the next judge going on circuit. The position has never been advertised, and the profession as a whole has been neglected and given no opportunity of applying. The suggestion in this Clause seeks to turn what has been for many years an administrative racket into a legislative one, to keep to one branch of the legal profession an office which is more suitable to the other. I suggested, on the Second Reading, reasons why I think solicitors are more fitted for this office. They are more fitted because they are trained in administration, they go into the solicitors' profession because they like administration or office work, or, at any rate, feel themselves more fitted for it than as pleaders at the Bar. Further, one is more likely to get a better man if a solicitor is available than if only a barrister is available, because a good barrister will not choose this dead-end profession. It is not the type of career which in the normal way he would set out to achieve when he was called to the Bar.

This is a retrograde step, because we hope for fusion and more collaboration between the two branches of the profession, rather than for severance. There are other Members who wish to speak on this Amendment, so I will say little more, except this: I have found, since I have been a Member of this House, that if one puts up a good case to the Government, and they are assured that it is just, they will generally accept that case. On several occasions when I have moved Amendments the Government have accepted them, after hearing the opinions of those on the Floor of the House, or in Committee. I therefore ask the Solicitor-General to accept this Amendment or, at least, to retain the present position. I ask him that in all sincerity, because I feel that the principle incorporated in this Bill is entirely unjust, and furthermore, may cause considerable administrative inconvenience in the future.

11.15 a.m.

Mr. Leslie Hale (Oldham)

I rise to support this Amendment, and to put the view of my trade union in this matter. I make no apology to the Committee for speaking on behalf of my trade union when their particular rights are affected—

Mr. Turner-Samuels (Gloucester)

My hon. Friend says that he is speaking on behalf of his trade union. I am sure that he does not intend that, because it is rather misleading. I know of no representations which have been made by the Law Society to further the object that my hon. Friend apparently has in view in supporting this Amendment.

Mr. Hale

It it Friday morning, and if the Committee are to discuss all the things that my hon. and learned Friend does not know, we shall be here for a long time. The Law Society have made representations to the Solicitor-General on two occasions, and have circularised every solicitor Member of this House. They have put the strongest emphasis on this matter. I feel much more strongly about it, because of the ill-informed intervention made by the hon. Member for Huntingdon (Mr. Renton) last Friday. The hon. Member said that if solicitors were put in, they would need a long experience and a high standard of experience, to justify their holding this important position. What are the facts? The standard of legal education demanded by the Law Society for solicitors is infinitely higher, longer, and more arduous than that which is asked from barristers by the Bar Council. There is a reason for that. For revenue purposes, the Bar Council appoint barristers who have no intention of practising, although I know that there are many members of the Bar who have acquired a very high standard of legal knowledge. The hon. Member's intervention was unjustifiable and improper.

The Solicitor-General was asked to say what the duties of the clerks of assize were, and, with all due respect to him, he did not seem to know a very great deal about their duties. Perhaps the reason is that they do not perform any duties at all. My hon. and learned Friend said that one of the principal qualifications was that the clerk of assize must be a member of the circuit mess. Later in the Debate, there was some discussion as to whether my right hon. and learned Friend the President of the Board of Trade would reach the necessary standard of conviviality to be available for appointment as a clerk of assize. The duties which a clerk of assize performs are essentially those which are performed by a solicitor. According to the definition in Halsbury's "Laws of England," they "perform all circuit functions of master or assessors." They are so appointed, and they perform this office substantially to the people's satisfaction. The second duty of the clerk of assize is that of taxing master He taxes the bills of the prosecution, and certain poor people's defences. That, again, is essentially a job performed by a solicitor. It was said by the Solicitor-General that the clerk of assize must keep in touch with the Bar. It is the solicitors who arrange the summoning of witnesses to assize, and who conduct all the preliminary negotiations. In other respects, the real functions that he performs are those which have, for generations, been successfully performed by members of my profession.

If the Solicitor-General really lays down the circuit mess test, he ought to introduce an Amendment to say that the clerk of assize must be a barrister of less than five years' standing, must not be a teetotaller and of a sufficiently convivial nature to perform the functions of his task. But I suggest that these limitations are very undesirable. If this matter had been discussed in the last Parliament one could have understood someone saying that this was a very important position. We might prefer that no one should be appointed to hold office under the Crown who has not been engaged as counsel for five years, and, had it been put, that argument might have been accepted. But the result of that would have been that the learned Solicitor-General would not be here to put the case today because he would not comply with the limitation, and I say, with very great sincerity, that that would have been a very great disadvantage. I am sure that both sides of this House regard him as an outstanding member of his profession, who brings a very considerable learning and a mass of information on every subject under the sun, except clerks of assize.

The Solicitor-General intervened on Friday last on this aspect of the matter, but, again, he brought forward no argument at all for this exclusion. The main point is that this is really a retrograde step, and, as the hon. Member for South Croydon (Mr. Rees-Williams) said, we are anxious to see the whole subject of these appointments brought under consideration, and if the weight of the House is given to a limitation which excludes solicitors from holding these appointments, it is no argument for the Solicitor-General to say that they shall not be masters or registrars of the court. The functions of a registrar in the county court today are varied and important, and are nearly always performed by solicitors. The Solicitor-General put one other argument, saying that, in his investigations, he did not remember a solicitor holding this job. It is an appointment which falls to be made by a senior judge when he happens to be on circuit. I do not say this in any spirit of criticism, but it is one of the little offices of profit in which a distinguished judge could put someone, necessarily someone holding the proper qualifications, but having the additional qualification of being someone he knew or liked. No one could object to that. A little judicious nepotism has crept into these matters without any serious effect, and I do not make too much fuss about it. Now, we are saying that, in the case of a paid, full-time appointment, it is clearly quite wrong to put in this limitation. It is a piece of pure class legislation. We have taken steps, to some extent, to democratise our branch of the law, though I do not think we have gone nearly far enough, and I hope no one will accuse me of expressing satisfaction. The two distinguished gentlemen who are now carrying on my own practice in the country, both came to me as lads from school. The only justification which the Solicitor-General puts forward for the course now proposed in the Clause is a class classification, and it is an argument which should not be put from our Benches at all. I ask the learned Solicitor-General to reconsider the matter and accept this very modest Amendment.

Mr. Boyd-Carpenter (Kingston-upon-Thames)

When the hon. Member for South Croydon (Mr. Rees-Williams) spoke on the Second Reading of this Bill last week, he very properly, to my mind, described the proposal of the Bill as it stands as being an example of the closed shop. The hon. Member denounced the closed shop in language so forcible that I am perfectly certain that hon. Members on this side can look forward to his support when this issue is raised next Session, and perhaps on more important matters than this.

Mr. Rees-Williams

What I denounced was the humbug of right hon. and hon. Members opposite advocating a closed shop in their own profession and denying it to the workers.

Mr. Boyd-Carpenter

I am much obliged to the hon. Gentleman, who denounced the closed shop with so much skill and with so much technical knowledge of the subject, and it is perfectly obvious that he regards the closed shop as a tyranny. But it is a little strange that the Amendment we are now discussing is an Amendment which seeks to include solicitors and it appears on the Order Paper in the name of three hon. Members of that profession. It would appear that as far as the hon. Member for South Croydon is concerned, his denunciation is not of the closed shop as such, but of the shop that is closed a little bit too much. I remain quite unrepentant on this point I think the Amendment of the hon. Member for South Croydon is quite a good one and I shall certainly vote for it. None the less, it does not go far enough, and the Bill does introduce a most undesirable closing of the scope of these appointments. It is fair and right to say that the Amendment does amount to an improvement, in so far as it permits the junior branch of the legal profession to be considered for these appointments.

Mr. Hale

I am quite sure that the hon. Member did not intend to refer to the "junior" branch. There is no authority for that. They are independent branches and neither has ever asserted its seniority, nor would either have been justified in doing so.

Mr. Boyd-Carpenter

I am sure that no one would cast the stigma of juniority upon the hon. Member, but I regard the conventional description of solicitors as the junior branch of the legal profession as being so hallowed by custom, that I propose to use it. I hope this House will discuss this question, not from the narrow point of view of the interests of one profession or another but from the more important standpoint of the interests of the public, and, in particular, from the standpoint of how best these very important appointments are to be filled. I was a little surprised, for that reason, that both the mover and supporter of this Amendment spent a considerable time in pointing out how excellent their profession was, and spent no time at all in pointing out how the public interest would be served by the acceptance of their Amendment.

Mr. Sydney Silverman (Nelson and Colne)

Surely, the change is being introduced by the Bill. I think that, in the Bill as presented, there was no such limitation as the one we are now seeking to remove, and any onus of proving that the public interest is to be served lies upon those who want to make the change, and not upon those who do not.

Mr. Boyd-Carpenter

I entirely agree with the admirable exposition of Conservative doctrine by the hon. Member for Nelson and Colne (Mr. Silverman). As always, the hon. Member expresses the point of view he is maintaining for the moment with great force, and I entirely accept it. None the less, the fact remains that the change is effected by this Bill, which was given a Second reading last week, and I therefore think it is desirable, that, on this Amendment, the merits of the question should be looked at, not from the point of view of narrow professionalism, but from the point of view of the public interest.

I entirely agree with what was said by the hon. Member for South Croydon about clerks of assize. There is a certain rough similarity between their functions and the functions of clerks to justices, but with this difference—that, whereas clerks to justices have to advise the justices on the law, advice offered by the clerks of assize in their court on law might not be received by the recipients with any undue enthusiasm. That, as far as it goes, is an argument for a solicitor being able to discharge these functions. The Bill, very properly, transfers these appointments to the Lord Chief Justice, and I do not think it could be seriously suggested by the Solicitor-General or anybody else that the Lord Chief Justice of England is not competent to select a man for the job. When we are putting these appointments into such highly responsible and skilled hands, what is the need for these limitations and safeguards? Indeed, when one reflects on the source from which Lords Chief Justice of England are so often selected, one wonders a little at the learned Solicitor-General himself going out of his way to impose limitations upon the holder of that office. It may be that the day will come when he will regret the imposition of such limitations.

11.30 a.m. Possibly, to non-legal Members of the House, the point is not of very great importance. None the less, it seems to me—and there I agree with the hon. Member for South Croydon—that although small, it raises a question of principle of some considerable importance. There is far too much tendency today to limit appointments to people within various unions, various "closed shops"—within, if I may use the phrase, various "rackets" —and it is time that Parliament made it perfectly clear that the process must stop. I am quite certain that the hon. Member for South Croydon, who spoke so well on this point on the Second Reading, is entirely sincere in putting forward this Amendment, and, from what I know of him, I am certain that, having put forward this Amendment so well, if the Government will not accept it, he will not shrink from putting the matter to the test of a decision by this Committee. I am certain the hon. Member is not the sort of person who would withdraw an Amendment in these circumstances, and I hope he will receive support not only from members of his union but from members of my union, and from those hon. Members, who are the majority, who dislike both unions with equal impartiality.

Mr. Turner-Samuels (Gloucester)

I am sure we were all entertained and very much instructed by the robust intervention of my hon. Friend the Member for Oldham (Mr. Hale). I quite understand his point of view because, naturally, he is speaking on behalf of his profession, and it has been said both by him and by the mover of this Amendment that we ought not to look upon this as a class matter, that we ought not to discriminate. That is a view which I very heartily share, but it seems to me that the attempt which is being made in the Amendment is to do that very thing, because, as the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) said, not a word do we hear in respect of any other section of eligible persons for these offices except that of the solicitors' profession. The worst service that we can pay to anybody, either to the legal profession or to the public, is to try to narrow down this matter to a competition between sections of the legal profession. That is the worst thing we can possibly do. It seems to me that the test we have to apply is, again as the hon. Member for Kingston said, what is best in the interests of the public service? That is the only criterion by which this matter ought to be decided. I do not desire to minimise the status of the solicitors' profession, or to suggest in any way that that profession is not a very competent and efficient one. Indeed, I would be putting myself, as a member of the Bar, professionally in a very precarious position if I were to make any such suggestion. But I do want to try to avoid letting my partisanship override my judgment in this matter.

Let us make one or two tests by which I think the Committee can be guided as to what ought to be done. In saying that, I ask the Committee to discard from their minds any question of prejudice in this matter, and to treat it merely as one of sense and judgment, without regard to any section of the profession at all. Let us make one cardinal test which seems to me to be a supreme one. In dealing with this matter we have experience upon which to draw. After all, there is some history in connection with clerks of assize, in the functions of clerks of assize, in the administration of justice and in the machinery connected with the assize courts. Therefore, we have that body of experience upon which to draw. What is the result of that? I think it is perfectly correct to say, notwithstanding what the hon. Member for Oldham said, that in no instance has there ever been an appointment of a solicitor to this office. I quite agree that that in itself is not necessarily—

Mr. Hale

Is the hon. and learned Gentleman arguing that, because at one stage no commissions in the Army were given from the ranks, that is a reason to continue that state of affairs now and to make it statutory?

Mr. Turner-Samuels

If my hon. Friend will be a little patient and not so enthusiastic, he may follow what I said. My point is that that argument may be an exclusive one, but not a conclusive one. After all, there is a very strong body which represents the interests of solicitors and, in spite of what my hon. Friend says, I have never seen it put forward with any degree of force at all that solicitors ought to be appointed to this office.

Mr. Janner (Leicester, West)

I assume that my hon. Friend is prepared to accept the fact that the Law Society has put forward this proposal and is supporting it?

Mr. Turner-Samuels

I am coming to that point. My hon. Friends must be a little patient. The Law Society has not made any effort with any force—[Interruption.] My hon. Friends should contain themselves for a few moments and try to listen to the other side of the argument, because that is the only way in which one can come to a conclusion on anything. The Law Society has made a very slight effort in this matter. I think two letters have been written by them about it, and I think it is right to say that no serious argument has been put forward by the Law Society in support of appointing solicitors to this position. Why is it? I submit that the fact that there has never been such an appointment is an argument; it is not a conclusive one, but it is an argument to explore. In my opinion, the reason is that the duties of a clerk of assize are very special indeed, and it is not a position which is suitable to any appointee other than a member of the Bar with the experience that a barrister has in these particular matters.

First of all, the assize court is the highest criminal court, apart from the Court of Criminal Appeal. This is a matter which has to be very carefully considered, because one has to consider what is the function of a clerk of assize. Those of us who have been associated with these matters and have seen what proceeds in that connection, know that the clerk of assize holds a very important position. I doubt whether there is a single sentence imposed by a judge which has not been previously discussed with the clerk of assize.

Mr. Hale

So what?

Mr. Turner-Samuels

Hon. Members who do not like to listen can always go outside. That is a very important matter, because it sets the standard of the sort of qualifications and capacity one must have in order to be a clerk of assize. I do not think it can be gainsaid that a solicitor does not accumulate that experience or the necessary qualifications for that very important work, and that is a consideration which should be borne in mind by this Committee. Again, the clerk of assize is to be in the position of a King's Bench master. Now, there is no master of the King's Bench who is a solicitor; indeed, a solicitor is not qualified to become a master of the King's Bench.

Mr. S. Silverman

What about the taxing master?

Mr. Turner-Samuels

A solicitor is not qualified to become a master of the King's Bench.

Mr. Hale

The Committee are entitled to know the facts. Throughout the country the whole of the functions of a master of the King's Bench are administered by the registrar, and he is invariably a solicitor; taxing masters in the King's Bench are solicitors; masters in Chancery are solicitors. However, this curious, archaic reservation referred to by my hon. and learned Friend does exist. and should not exist.

Mr. Turner-Samuels

Of course, we know that registrars of the county court who are district registrars of the High Court are solicitors. I know that, but I was not referring to that. I was referring to King's Bench-masters. By this Bill it is sought to raise clerks of assize to the equivalent position of King's Bench masters. There is no doubt about that. Therefore, because they have to perform functions that are very similar, it is not a position which is open to a solicitor. Another matter which makes the appointment of a solicitor to this position absolutely illogical under this Bill is the position of associates. My hon. Friend has not said a word about associates. Under this Bill the associates who are to be appointed will be members of the Bar. I may be wrong, and perhaps again he will correct me, but I do not know of any associate of the High Court who is not a member of the Bar. We shall get this illogical position. If we allow clerks of assize to be appointed from the solicitors' profession we will exclude them from being appointed as associates. I ask the House to take that into consideration. The matter is very technical; I quite see that. Non-legal Members of the House will probably find it very difficult. It is so very easy to raise prejudice about this matter by saying that someone will be excluded from this appointment. That immediately raises a prejudice. In fact, in my submission there is a very good reason for doing that. To my mind the point about associates is a very strong argument for making the appointment of clerks of assize equate with that of the appointment of associates. I do not wish to go into any of the other matters. There are quite a number of other matters, but I am quite certain they will be dealt with by a number of my hon. Friends who apparently want to speak. I conclude by saying that in this particular case it is not a question of the closed shop. In this particular case, in order to serve the public interests these officers should be drawn from the profession of the Bar.

Mr. Berry (Woolwich, West)

The hon. and learned Gentleman has referred to the public interest. Surely, it is a matter of law which is being discussed, not justice?

11.45 a.m.

Mr. Sydney Silverman (Nelson and Colne)

It is customary in the Committee, when a Member speaks on a matter in which he might conceivably have an interest, to disclose it. I would like to say at once that I am a member of that branch of the profession of the practice of the law which, if the Bill goes through unamended, will be excluded from these offices. In view of the remarks made by my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels) I would also like to say that there is a solicitors' group, of which I have the honour to be chairman. I cannot say that we have ever met to discuss this point, but I think I am entitled to say—and those other solicitors who are members of the group, and who are here, authorise me to say—that this Amendment will have the support of the whole group without dissension, irrespective of party.

Althougn there is obviously a professional interest involved—and it would be quite stupid to deny it—that does not mean to say the public interest is not being served, too, by this Amendment. I deny altogether the allegation. A change in the law of the Constitution, the social basis or the economic basis of our country, ought to be supported by those who advocate the change, and the onus of proof is upon them. That is not a Conservative principle at all—or if it is, it is equally a Socialist principle. So far as this party is concerned, we have never refused that onus. We have assumed the onus on every occasion that we have advocated any change; that is to say, the onus of proving that the change is necessary and desirable, and would produce good results. I am bound to say that on the last occasion on which the question was litigated we satisfied the court very handsomely. That is why we sit on these Benches instead of on the Benches opposite. The public interest is very clearly involved. It is all very well to make cheap jokes about distinguishing law from justice. Anybody can do that; it is very easy. But those who do it ought also to assume the responsibility of saying how else justice is to be administered in any civilised community except by law and the machinery of law, however inadequately administered, with whatever deficiency, and in whatever way it is capable of improvement. The fact remains that on the administration of the law depends the existence of social justice in this or any other civilised community.

What is suggested here is that in the discharge of an important office one branch of the legal profession should, for the first time, by Statute, be excluded. It is all very well to say, "Oh, but barristers have always done it," as did the hon. and learned Gentleman the Member for Gloucester. I do not think he would make a very good clerk of assize himself. He began by not knowing who the parties were, and went on to display a really shocking ignorance of how law is administered in this country. He seemed to assume that because in the King's Bench alone, and in London alone, such functions as those of a master were discharged only by barristers, that proved that only barristers are fit to or ought to discharge them—

Mr. Turner-Samuels

rose—

Mr. Silverman

I would like to finish my sentence before giving way. The facts are, the same functions in the Chancery Court, even in London, are performed exclusively by barristers, and outside London those functions are performed, both on the Chancery side and on the King's Bench side, exclusively by solicitors.

Mr. Turner-Samuels

All I said was that these gentlemen were being promoted to a position equivalent to that of a master of the King's Bench, and that a master of the King's Bench—and I adhere to the statement—is always selected from the Bar, and that no distinction should be made in this particular appointment.

Mr. Silverman

Nobody denies that that is what the hon. and learned Gentleman said, and nobody denies that the particular fact which he stated was correctly stated.

Mr. Turner-Samuels

The hon. Gentleman is misrepresenting what I said.

Mr. Silverman

The point is, the hon. and learned Gentleman drew wholly wrong inferences from it, and signally failed to understand the real implications of the fact he cited. I say, all these functions which he says, rightly, are so important are performed everywhere throughout the land, except in the King's Bench in London—and except there alone—by that branch of the profession which, unless this Statute is amended, will in future be prevented from carrying out those functions in the position of, at any rate, clerks of assize. I say the onus of proving that such a change, and such a limiting change, is vital or necessary, or would have good results, is upon those who advocate it. So far I have heard no single argument whatever in support of it —none whatever. Nobody has attempted to say why they should be excluded. I would be prepared to deal with the arguments if I had heard any arguments, but there have been none—none whatever.

I hope it is not going to be said that solicitors are less judicially minded than barristers, especially after the experience we have had, in this House and outside. I once heard a High Court judge try a case at assizes for four days. He reserved his judgment for 10 days, and then delivered a reserved judgment for an hour and forty minutes, and, after all that, proceeded to criticise the solicitor for having brought so trivial a case into the court. He is still on the bench practising judicial functions. Any one of us, from our experience, could multiply many, many instances of that kind. It is true on both sides of the profession. But it is by no means true that solicitors, by their training, its length, the standard of education required, or the length and variety of their experience, are not as capable of discharging this function as members of the other branch.

My hon. Friend the Member for Oldham (Mr. Hale) said this was a retrograde step. So it is; and it is a step backward when we ought to be taking steps forward. I think, myself, that the whole question of advocacy in the courts, the existence of two separate branches of the profession at all, the exclusive appointment to judicial office of members of one branch of the profession, and even the limitation in the appointment of the Law Officers of the Crown to one branch of the profession—that all these are capable of inquiry, and capable of being reformed and improved. I hope that some day before this Government comes to an end we shall have a proper inquiry into the whole administration of justice in this country and the practice of both branches of the profession as well. I support the Amendment.

The Solicitor-General (Major Sir Frank Soskice)

We have had refreshing and invigorating speeches from three members of the solicitors' profession and two members of the Bar, and my intervention will even the balance. I hope that the Committee after hearing me will think I have been able to cut the Gordian knot. The point made by my hon. Friends who support the Amendment is, as I understand them, that on the question of suitability, solicitors should not be excluded. That seems to me to be a reasonable point of view. I would say this, however. This Clause, as drawn, is not intended to raise any question of general principle. Hon. Members have said that it does, but whether it does or not, having regard to what I propose to indicate as our intention, I do not think that argument will arise. When the Clause was framed in the first instance the law depended upon Section 79 (2) of the Supreme Court of Judicature (Consolidation) Act, 1925. That Subsection provided that a clerk of assize must be one of three things: a barrister-at-law in actual practice, or a solicitor of the Supreme Court in actual practice, or a subordinate officer of the clerk of assize on Circuit. There were three special categories. When the Clause was framed the following circumstances were borne in mind. There are, seven clerks of assize. As I indicated on Second Reading—I am sorry that what I said did not find favour with my hon. Friends, and I repeat it with the utmost trepidation—it is the fact that for years past these duties have, as a matter of fact, been discharged by barristers.

I was wrong in one particular, in that, years ago, I think, one solicitor was appointed. In view of what I am going to say I do not mention any names, and, indeed, I do not know the details, but I believe it to be the case that he was not a success, and that he was not a success because he did not have the knowledge that seemed requisite for the purpose. He could not see things from the point of view of members of the Bar. That may not be an argument to impress my hon. Friends very much. But I will not go into details, and I will not mention the name, because I do not know enough about the matter.

The fact remains that for years this office, of very long standing, has been discharged without a word of complaint, so far as I know, by members of the Bar. Those responsible for framing this particular Bill, desirous of putting into its terms what they conceived the position should be, thought that clerks of assize should be drawn from the profession of the Bar because, for various reasons, it was thought that they could have more intimate contact with members of the Bar on circuit, that they would know the method of approach, and that their experience would make them more fitted to doing the very difficult and delicate business incumbent upon the office; and, therefore, in drafting the Clause, the profession chosen was that of the Bar.

But the case is made that we should not exclude solicitors. I think it is a perfectly reasonable case, and I would accept that. As the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) pointed out, the final choice rests with the Lord Chief Justice, and, whether he is limited to choosing members of the Bar, or whether he can choose, also, from members of the solicitors' profession, I am sure the Committee would unanimously agree that his discretion can be completely relied upon to choose a person who is wholly suitable. In those circumstances I attempt to cut the Gordian knot by saying that the Government will accept the proposed Amendment.

Major Sir David Maxwell Fyfe (Liverpool, West Derby)

I feel that the Committee has some right to expect that we on these Benches should express our point of view. I said on the Second Reading that I thought it was, in practice, a good thing that a clerk of assize should be a member of the Bar. I thought so for reasons which I can put very shortly, and which, I think, the Committee ought to have in mind. The duties, as I have seen them—and some hon. Gentlemen opposite know that I have had a fair opportunity of observing them, even if I have not observed them correctly—are, first, that of arranging the list. The reason why some of us feel it very important that the clerk of assize should be in touch with members of the Bar is that the great bulk of criminal cases on assize are not heavy cases in which the defendant has to have a solicitor and counsel appearing for him. The bulk are cases where the defence is done under the Poor Persons' Rules, where a solicitor is often not allowed; or are done by means of counsel appointed by the judge or by the defendant in person. In the first of these examples it is the practical problem for the clerk of assize to arrange with the barrister who is conducting the defence and the barrister who is prosecuting, a time that will be suitable to all concerned.

The second main duty—and this, I consider, is an important one—is that of advising judges, and, especially, the more junior judges, on the question of sentences and the standard of sentences. That is, in practice, as we all know, the method by which the clerks of assize, in fact, maintain a certain geographical standard of sentences in the cases on circuit.

12 noon. Thirdly, there are intricacies of procedure, which may be small and seem un- important at the time, but which often attain a quite different standard of importance if the case goes to the Court of Criminal Appeal, on which the clerk of assize does keep the judge right. As the hon. and gallant Gentleman mentioned the question of taxation, on that he did make a fair point, but I make a fair reply, I think, in this way: taxations of criminal bills are sui generis, entirely different from the taxations of civil bills, which are dealt with in the other places to which he referred. I have only mentioned these points because they are practical points and they did seem to me reasons, depending on the actual work and on the public interest, quite apart and entirely unconnected with any sort of contest of importance between the two branches of the profession. When, however, the matter is put to us on the basis of seeking to preserve an exclusive right to an office, and seeking to exclude a branch of the profession, as it has been put today, then the matter must be considered from quite a different angle.

These are high considerations and I should be the last, having had the honour for a short time to be head of the English Bar, to press in this Committee or anywhere else an attitude which would at all appear to be one of selfish exclusion. Therefore, I do not seek that this Amendment should be resisted, and those who sit with me will, I think, join me in accepting its acceptance, if I may put it in that way. I think the whole Committee would like to convey its condolences to the hon. and learned Member for Gloucester (Mr. Turner-Samuels) on the condition in which he has found himself today. He has so often been an admirable political niblick to get his party and the Government out of a bad lie that it is hard, when he operates on the fairway, that he should not receive assent to his point of view. I think the Committee are now seized of the position taken by hon. Members who sit with me, in regard to this point.

Mr. Janner (Leicester, West)

I want to make one point and I hope it will not be considered out of place now that the Solicitor-General has agreed to our Amendment. First, I should like to say that we are very grateful to him for having adopted this attitude, and having seen the light in time. We are also grateful to our friends on the opposite benches who have now taken the right step in the direction which we desired and so enabled the public interest to be served. I want to make the point with regard to the public interest because it has been raised, and I think it is highly essential that the country should understand at this stage that the public interest can be served by men who are constantly in practice in the police courts. After all, this is a matter dealing with criminal law. The men who are in practice in, and who are administering, the police courts—

Mr. Rees-Williams

Petty sessional courts.

Mr. Janner

Yes, petty sessional courts. I was talking about the public interest and I wanted the public to understand what courts I was talking about; if I had said petty sessional courts they would probably have wondered which were meant. I am talking about the police courts as understood by the average individual. There one has to deal with the smaller cases referred to by my hon. Friend, and it is essential that men who understand that work shall be in a position to be administrators in the higher courts where similar case are being dealt with. It is in the public interest that men who are constantly administering the law should have this branch of the law open to them. That was the only point I wanted to emphasise because it had been said that it was not in the public interest for solicitors to act as clerks of assize or at least that the point had not been touched upon. It is highly essential that the public should realise that the solicitors' branch of the profession fully understand these matters and can advise the judges. My hon. Friend suggested that the clerk would have to advise the judge. A magistrates' clerk, or a man who has been trained in a magistrates' clerk's office, or a lawyer who has been practising in petty sessional courts is, in my opinion, more capable than most people of advising a judge on matters of this description, and I think that will generally be held to be the case.

Mr. Beechman (St. Ives)

I am sorry to detain the Committee, but I should like in two sentences, as a member of the Bar, to say how greatly I welcome the line taken by the Solicitor-General. I do not think the case could have been better put than it was by my right hon. and learned Friend the Member for West Derby (Sir D. Maxwell Fyfe). It is true that in most of these cases the appointment would, in my view, best go to mem- bers of the Bar, but it is important that it should be open for members of the solicitors' profession to take these appointments, because there will be occasions when solicitors will be fully capable of carrying out these duties. It is further important that this experiment, if it be an experiment, should be made. Therefore, I feel that on behalf of the Liberals present this morning I can say with confidence that we welcome this progressive step.

Amendment agreed to.

Further Amendment made: In page I, line 8, insert: (2) A clerk of assize appointed under this Section shall be an officer of the Supreme Court, and Sections one hundred and eighteen and one hundred and nineteen, Sub-section (I) of Section one hundred and twenty-seven and Sub-sections (1) and (2) of Section one hundred and twenty-eight of the Supreme Court of Judicature (Consolidation) Act, 1925 (which relate to the salaries, conditions of appointment, retirement and pensions of certain officers of the Supreme Court) shall have effect as if the office of clerk of assize were among the offices specified in Part I of the Third Schedule to that Act."—[Mr. Glenvil Hall.]

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."

Lieut.-Colonel Lipton (Brixton)

At this stage I should like to draw attention again to two points which I raised on Second Reading in respect of which I think the Committee is entitled to a little elucidation by my hon. and learned Friend the Solicitor-General. It will be observed that the conditions of appointment relating to clerks of assize are governed by various Sections of the Supreme Court of Judicature (Consolidation) Act, 1925. The first point I wish to make, and it is governed by Section 118 of the Act to which I have referred, is the question of the salaries to be paid for the new appointments of full-time clerks of assize. These salaries will be fixed by the Lord Chancellor with the concurrence of the Treasury, because for the first time, with the passage of this Bill, clerks of assize will become permanent civil servants for the purposes of salaries and pensions. Perhaps the learned Solicitor-General was not in a position to deal fully with this point on the Second Reading, and, before the Committee is asked to accept the Clause as it stands, he may be able to give us a little more information My other point is governed by Section 127, Subsection (I), of the Act of 1925. The effect of that particular Section is that the clerks of assize now to be appointed will retire at the age of 72, but may carry on to the age of 75, with the approval of the Treasury, if the Lord Chancellor considers it desirable. The legal industry, if I may so call it, for the purposes of this Bill now comprises both the Bar and the solicitors' profession. It is not an under-manned industry, and it does not suffer from any shortage of manpower. I feel that it is a retrograde step that at this time of the day we should be creating Civil Service appointments which can be held at least up to the age of 72, and possibly up to the age of 75. That is contrary to all the ideas for which we on this side of the House stand, and I hope that the Solicitor-General will be able—

The Chairman

I think the hon. and gallant Member is trying to suggest an Amendment to the principal Act, which would not be in Order.

Lieut.-Colonel Lipton

I am not suggesting an Amendment to the principal Act. I am trying to suggest that clerks of assize whom we are proposing to appoint under this Clause, shall not be subject to the terms and conditions relevant to other offices of the High Court which are provided in the Act referred to.

The Chairman

That is precisely the point I was making. The hon. and gallant Member is suggesting changes in the conditions laid down in the Supreme Court of Judicature (Consolidation) Act, 1925, which he must not do.

Lieut.-Colonel Lipton

I am trying to suggest that clerks of assize should not be placed under the provisions of the 1925 Act, which will apply to them when this Bill is passed.

The Chairman

I am sorry but the hon. and gallant Member is now going contrary to the decision to which this Committee came, namely, that the Subsection containing these conditions should be inserted in the Bill.

Mr. Boyd-Carpenter

Before the Committee part with this Clause, there is one question which I should like to ask. Does this Clause affect the Central Criminal Court, which for many purposes is a court of assize? It is not specifically mentioned, and to prevent any possible doubts arising perhaps the Solicitor-General will give an answer to that.

Mr. Bowles (Nuneaton)

A new Subsection which is not on the Order Paper has been moved. Would you be good enough, Major Milner, to tell us what the Committee have agreed to?

The Chairman

The words included in brackets and underlined were left out in another place as a matter of Privilege, and this House necessarily has to insert them. It is quite a usual practice.

The Solicitor-General

After your Ruling, Major Milner, two questions only are outstanding and require to be answered. The first relates to salaries. As has been pointed out, Section II8 of the 1925 Act provides that the salaries shall be of such an amount as the Lord Chancellor may, with the concurrence of the Treasury, from time-to-time determine. That being so, I am not yet in a position to say what they will be. They are the subject of consideration, and I am afraid I am not in a position to answer that question. I would remind the Committee that the whole object of the Bill is to pave the way and provide necessary legislative machinery for the scheme to be introduced, and that the details must be worked out as the scheme is brought into operation. The hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) asked whether this Bill would affect the Central Criminal Court? The answer to that question is that it will not.

Question put, and agreed to

Clause, as amended, ordered to stand part of the Bill.

CLAUSE 2.—(Abolition of certain circuit offices.)

Amendment made: In page 2, line 13, after "direct;" insert: and the Lord Chancellor may with the concurrence of the Treasury provide for the remuneration and conditions of service of circuit bailiffs, and any such remuneration shall be paid out of moneys provided by Parliament."—[The Solicitor-General.]

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."

12.15 p.m.

Mr. Selwyn Lloyd (Wirral)

May I ask the Solicitor-General whether he is prepared to give any answer to the points which I made on the Second Reading with regard to the appointment of associates and clerks of indictments—at any rate, as far as the Northern Circuit is concerned? According to this Clause, these officers shall be officers of the Central Office of the Supreme Court. I have pointed out the importance of associates and clerks of indictments being permanent and local officials, at all events, so far as the Northern Circuit is concerned. Personally, I would much prefer the present system to continue, but if there is to be a change, and if these offices are to be abolished, I should like to know whether it will be possible for members of the Bar to carry out these functions in the future. I see that the hon. Member for South Croydon (Mr. Rees-Williams) is not present, otherwise we might have had his support. I think that it would be a very bad thing if the field from which such appointments are to be made in the future, were to be limited to clerks of the Central Office who have been serving in that office as boy and man. I think that it would be a very bad thing if there was to be trained in London a breed of civil servants to be sent out to the provinces to occupy these positions. I should like an assurance that there will be complete freedom of choice, and that a Member of the Bar can be appointed to such an office. I accept that then he will naturally have to become an officer of the Central Office. I want to be assured that previous service in the Central Office is not a condition precedent for appointment to one of these offices.

The Solicitor-General

The question does arise on the appointment of associates. Hitherto, our discussion has been confined very largely to the question of the appointment of clerks of assizes, and possibly we have been inclined to forget the associates who are extremely important in the machinery of assize work. If the hon. Member will look at the Bill, he will see that it contains a saving provision in the first place for present associates. To start off with, as I conceive the operation of the Bill—and I would remind him again that we are merely discussing the provision of legislative machinery—when the scheme is enacted, junior officers at assizes will be given an opportunity to come into the machinery if they wish. Their rights are safeguarded. If they do not come into the scheme, they will remain in their appointments and continue to discharge their functions. I can give the assurance that if associates in a circuit decide to come into the scheme, they will continue to be used for that circuit. They will continue the work they were doing before the scheme was brought into operation, so that so far as that particular circuit is concerned and that particular associate is concerned the position afterwards will be very much as it was before, the difference in this case being that he will be enjoying pension rights and other improvements in his conditions of service. That, of course, is the first stage, the stage which will ensue while there are still associates who are now sitting. In due course, as the years roll by, the question will arise of replacing them as they die, retire, or, for one reason or other, cease to function as associates. In most cases that is looking ahead some considerable distance. I do not know the ages of particular associates, but one wishes them long life and many years of useful service.

When the time comes to replace them the scheme will be in operation. It is important to remember that a scheme of this sort does not function properly unless one proceeds carefully and experimentally, and makes provision for the actual circumstances as and when they arise. In the Second Reading Debate the hon. Gentleman called attention to the importance of continuity. I accept at once that that is of extreme importance. The scheme will not work if somebody who has no knowledge of a circuit, is placed in that circuit and expected to discharge functions which can only be discharged by someone with a fairly intimate knowledge, not only of the circumstances of the circuit but of the people who go there, the difficulties to be surmounted and the various factors which contribute, in the general sense, to the smooth running of the circuit and the efficient dispatch of work in the circuit.

These types of appointments depend so much on the personality of the individual. If someone is sent who does not know the circuit, who may not be sympathetic to it, and who may not be liked because of his personal qualifications, or for any one of the hundred reasons for which people become liked or disliked, the scheme will not work properly. The greatest pains will be taken by those who allocate associates to circuits to try to ensure that the person sent is a suitable person. He will be selected with the greatest care. As I said on Second Reading, there will be continuity in the sense that once someone has been allocated to a circuit, and is a success, he will be kept to that circuit, so that he will grow more and more into the atmosphere of the circuit, and begin to understand it, and to be understood and accepted by those members of both professions who practise on the circuit and litigants who resort to that circuit to obtain justice.

Beyond that I do not think I can say precisely in advance what will be done. I can say that the question of continuity, the question of the suitability of the individual, the question of his fitting in with the genera) framework of the work of the circuit, will be constantly kept in mind as factors of paramount importance. I accept the view that unless that task is adequately achieved, the scheme will not work properly; it will be jerky and will not work as smoothly as the present scheme does. The scheme will deliberately aim at continuity, and the selection of a person who can gradually become known on the circuit, absorbed into it and accepted by those members of the Bar and everyone else concerned with the circuit, as the proper associate for that circuit. I hope that answer satisfies the hon. Member. I do not think I can be called upon to give a more detailed answer, simply because we are only discussing the legislative framework, and making the necessary alterations in the Act of 1925 to enable the scheme to be introduced. It will be formulated in its details by actual practical working of those details.

Mr. Selwyn Lloyd

May I thank the Solicitor-General for as much as he has said, and ask him about one last point? I was asking, in regard to a vacancy in the pool of associates, for some assurance as to the method of filling that vacancy, in other words that it should be open to members of the Bar, solicitors or anyone else, to apply for that vacancy in the associates pool, and that it would be unnecessary for him to have had five or ten years' previous service in the Central Office prior to his appointment to the pool of associates.

The Solicitor-General

I think I can say that unless unforeseen circumstances intervene, previous service in the Central Office would not be regarded as essential for an associate, whether he were a barrister or solicitor. As the hon. Member knows, there are no statutory qualifications for the purpose. Whatever he was, as soon as he came into the new scheme, he could be appointed. In all cases it would depend upon the individual, and the actual circumstances at the time.

Mr. Selwyn Lloyd

I am much obliged to the Solicitor-General for that assurance.

Question put, and agreed to.

Clause, as amended, ordered to stand part of the Bill.

Clause 3 ordered to stand part of the Bill.

Bill reported, with Amendments; as amended, considered; read the Third time, and passed, with Amendments.