JUSTICES (POLITICAL AGENTS) (Hansard, 3 April 1947)

§ Mr. Bowles (Nuneaton)
I had a Question down last Thursday to the Attorney-General concerning the disqualification of full-time political agents from being justices of the peace. The Attorney-General gave a reply which seemed to me to be unsatisfactory, because he suggested that they could not be impartial; and, therefore, I gave notice that I would try to catch your eye, Mr. Speaker, today, to raise the matter. Since then I have found a certain number of facts, and I find this tendency on the part of the Lord Chancellor, which may be right or not, and that people with political convictions who hold high political offices, including Members of Parliament, are now being asked to resign their posts as justices of the peace. I would like, therefore, if I may, to widen the issue from full-time political agents.
The matter came to my notice from the fact that my agent was a justice of the peace for the County of Linlithgow. When he moved to Nuneaton, after he had lived there for 3½ years, he was 2312 asked by the Lord Chancellor's Secretary to resign. I understand that every justice of the peace undertakes to resign in the event of his moving outside the county, and not being able to continue his duties. My agent did that. What was interesting was that at the end of one of the, letters the Lord Chancellor's secretary sent to me he said: If Mr. Brown is a whole-time paid political agent his lordship is not prepared to entertain his appointment to the Commission of the Peace as it has long been the well-established practice of Lord Chancellors of every political party to decline to appoint such political agents to be Justices. That was in reply to a suggestion by me that he might become a justice of the peace for the county of Warwick. It seems to me a very important matter. We are, in this country, trying to develop an adult political society, and believe that people should take more and more interest in political life and become more and more active. That a person who likes to give full-time service as an agent for any political party—this is not a party matter—should be disqualified seems to me completely outrageous.
I have had correspondence from various Members of Parliament since last Thursday, from which it would appear that the same practice obtains of asking Members of Parliament, while they are Members, to resign the Commission of the Peace. I have here a letter from the Lord Lieutenant of the County of London to an hon. Member in which he says: You probably know that the Lord Chancellor, Lord Jowitt, while leaving the final decision in each case to the taste of the individual concerned, has expressed the view that it is undesirable for an M.P. to exercise judicial functions, even if he has time to do so, not only in his constituency but anywhere else within the area of the Commission of the Peace in which the constituency is included. He suggests that every other Member of Parliament has resigned except one—presumably the hon. Gentleman who has handed me this letter—and says: I believe this course will be generally welcomed by M.P.s concerned as it will formally relieve them, for the time being, of the obligation of attendance at Sessions, but before giving instructions for the omission of your name from the list for the Tower Division in the 1947 Year Book, I should be glad to know you do not in fact wish to undertake the judicial side of your magisterial duties while you remain a Member of Parliament for a London constituency. 2313 I have suggested, in the case of my agent, that he might do the ordinary social administrative work, such as signing forms, applications for old age pensions, etc., being more accessible than anyone else to carry on that kind of work, without sitting on the bench. In reply to that, I received the following: The Lord Chancellor only appoints to Commissions of the Peace candidates who are prepared to do their fair share of all magisterial duty, judicial as well as administrative. However, when it comes to Members of Parliament, they are told, "If you do not undertake the judicial aspect of the work, it is all right." Yet a political agent is not allowed to do that. It is interesting—I am glad to see my hon. and learned Friend the Solicitor-General here—to note that there are Members of Parliament who are paid to sit on the bench—Recorders. For example, the hon. and learned Member for Exeter (Mr. Maude) is Recorder of one big city. Recorders' courts are courts of appeal from courts of first instance, in which justices of the peace are predominant. It seems to me odd that because the hon. and learned Member for Exeter is in receipt of a salary it is presumed that he can be quite impartial, which I have no doubt he is, but that a person who is in receipt of nothing, and who is doing a job of work as a volunteer, cannot be impartial. It seems to me a most terrible thing to suggest.
I find that the general tenor of this correspondence is to suggest that this is an old practice. In fact, the Attorney-General says it has been going on for 50 years. I have taken the trouble to turn up the reports of the Labour Party annual conference, and I find that no fewer than 53 agents of Labour hon. Members are justices of the peace. It does seem to me that this matter is important. Why should any man, just because he is the agent of a Member of Parliament, be deprived of one of his political duties, while, at the same time, the Lord Chancellor takes the attitude that he does? The reply which has been given to me was that this matter was being submitted to a Royal Commission. I wonder if that is so. The fact is that the Lord Chancellor himself is initiating a new procedure on his own. Whether or not there are recommendations from the Royal Commission now in session, 2314 the Lord Chancellor is, in fact, taking steps himself. I am sorry that I cannot just find the quotation I want, but I had it here among these bits of correspondence. I am sorry for that embarrassment, but the effect is that the Lord Chancellor himself is starting this new proceeding.
I come back to the general principle. I think a big political issue is involved here. A man who is engaged in political life, whether as a Member of Parliament, as a secretary or a part-time agent, or whatever it might be, should not be disqualified in a politically adult society from taking part in his normal natural rights. It seems to me incredible that there should be this disqualification: The new practice inaugurated by the present Lord Chancellor was that hon. Members who had been elected to parliament were called upon to resign. The Lord Chancellor is starting a new procedure, and I hope the Solicitor-General will not say that the Government can do nothing now because the practice has been extant for 50 years, and that it will go on until the recommendations of the Royal Commission are received. I hope the House of Commons will regard this matter as one of first-class importance.

§ Mr. Sydney Silverman (Nelson and Colne)
I think this is a most important matter, and I would beg the Solicitor-General not to say either of two things. I hope he will not say that matters have proceeded in this way because previous Lord Chancellors have proceeded in this way. That is not why the people of this country elected a Labour Government with an overwhelming majority. I am not saying for a moment that because we have a new kind of Government we must therefore do everything in a totally different way from the way we did it before, but I do say that we ought to look at old-established practices, and if they are wrong practices, then we ought not to be afraid of stopping them merely because they are longstanding. The other thing I hope he will not say is, "Let everybody who is now a Member of Parliament or a political agent and who is sitting on the bench as a magistrate, resign, and then wait and see what the Royal Commission recommends." If he is going to wait for the Royal Commission to recommend and then consider those recommendations, he 2315 ought to apply what he thinks is a good practice in the interim and not merely rely on some practices which have grown up.
What is the principle on which it is said that a Member of Parliament or a full-time political agent ought not to exercise judicial functions? My hon. Friend the Member for Nuneaton (Mr. Bowles) said that the principle which is announced is that a man in that position cannot be judicial—

§ The Solicitor-General (Sir Frank Soskice)
indicated dissent.

§ Mr. Silverman
I know that the Solicitor-General dissented when my hon. Friend said so, and he dissents now. I therefore gather from him that he does not rely upon any such principle. I am relieved to know that. If he does not rely on such a principle, it becomes impossible to see what distinction is drawn in that correspondence between a magistrate's administrative functions and his judicial functions. If it is perfectly possible for a Member of Parliament to be judicial—and I gather that is conceded—what is the point of saying to him, "Do not exercise judicial functions at all, not merely in your own constituency but anywhere"? Why should he not? I could understand an argument, though I would not agree with it, that his strong and close local association and dependence upon the franchise of people living in the constituency might prevent him from being free as a man ought to be free in the exercise of judicial functions on the Bench. If that is not said, then the distinction drawn appears to have no meaning at all.
Why should it have any meaning? Why should there be any reason to think that a man associated closely with political matters should not be capable of exercising judicial functions? Where do we select our judges? The Attorney-General said in the House on 27th March, 1947: I am informed by my noble Friend, the Lord Chancellor, that it has been the settled practice of successive Lord Chancellors of all political parties to refuse, knowingly at any rate, to appoint as justices, in the area of their activities, whole-time paid political agents, on the ground that in practice their appointment to the Bench was undesirable and might cause great embarrassment if they had to adjudicate in the case of either a prominent supporter or opponent, and that in accor- 2316 dance with the same general principles a justice on being appointed a whole-time paid political agent should resign from the Commission."—[OFFICIAL REPORT, 27th March, 1947; Vol. 435, C. 1388.] That seems to be only a lengthier way of saying that he cannot be a judiciary. We will not argue about the words, but why should a political agent not be able to do justice on the bench when a case is put before him? If a judge can, if a Lord Chancellor can, if a recorder can, if a local city councillor can, if the mayor of the borough can, if the Lord Mayor can—why in the world should a political agent not to able to do so? And if you are really going round the world looking for people who will be able to sit on the bench in a completely judicial spirit, because they have no association with, or knowledge of political matters, then you will look a long way: In the end you would only be able to have stipendiary magistrates, and you would have to select those from those who, by their career, had displayed they had no public consciousness or public interests of any kind. Only in that way would you be able to have a bench which would not know anybody who came before it, and would not have had any previous association with them, or anything of that kind.
It seems to me that it is the most patent nonsense, and the most preposterous thing of all is to say that a man could retain his place on the bench and be a Member of the House of Commons provided he performed all the non-judiciary aspects of his office but none of the judiciary ones because, as the Solicitor-General says, he is perfectly capable of performing the judicial ones as well. I think this matter ought to be looked at. In practice, of course, it is not true. In practice, as I think my hon. and learned Friend knows, it has never been true that hon. Members of this House appointed to the bench have ceased to perform judicial functions on the bench in their own constituencies? It is a very long-standing tradition that a Member of Parliament goes on doing so, and has always done so during many years, in spite of the statements made to the contrary.
It has also been the rule, at any rate in the county districts and in the rural districts, that the local Member has almost invariably been a member of the local bench and has continued lo practise. Indeed, one of the greatest complaints about the appointment of magistrates—I 2317 will not say more about it because I know the Royal Commission is inquiring into that—is the failure of those responsible for appointing magistrates to make the composition of the bench correspond to the prevailing modes of thought and development in the community as a whole. I hope the Solicitor-General will be able to say that, since they recognise that people who are associated with politics may be, and frequently are, more judicial than anyone else, he will not interfere with their functions unless and until some Commission accepted by this House recommends to the contrary.

§ Mr. Paget (Northampton)
I feel a certain amount of sympathy with the principle of separating the political and the judicial functions, but I agree entirely that it would be a completely new practice, that the practice for many hundreds of years has been for hon. Members of this House to sit on the bench in their constituencies. I do not think it is a good practice. However, there is another case for which I can see no kind of justification whatever, and that is a tradition which debars a man from sitting on the bench because he happens to hold a licence, particularly when the holding of that licence is conditional upon his being a man of exceptional character. In Northampton we elected a mayor to be our chief magistrate. That mayor was a member of the Conservative Party. We elected him because we deemed him a fit and proper person to be our first citizen, upon which the Lord Chancellor demanded from him an undertaking not merely that he would not sit on the licensing session—that one could well understand—that he would exercise judicial functions but, expressly, that he would not so much as sign a vaccination certificate in his mayor's parlour. Really I submit that sort of thing is quite outrageous and is a great insult to a trade which has done more to stop the evils of intoxication in this country than any other—the good conduct of public houses and public buildings. You have here a system in which a man may hold the King's commission and be the King's servant, and yet may not sit and judge between the King and the servant. We have a situation in which a man may hold a dog licence, and still sit on the bench, or hold a tobacco licence, and still sit on the bench, but, because he holds the one licence, a condition of which is 2318 exceptionally good behaviour, he is forbidden to exercise those functions for which a town has elected him when they made him mayor.

§ The Solicitor-General (Sir Frank Soskice)
This Debate started from the question of the appointment of whole-time political agents as justices of the peace, and went on to the question of appointment of Members of Parliament, and then publicans as justices. I want to bring the Debate back on the focal point on which it began. Before I do so, however, I would like to correct some misapprehensions, because, after all, it is important to be accurate. The letter from which my hon. Friend the Member for Nuneaton (Mr. Bowles) quoted in support of his assertion that the Lord Chancellor was introducing a new precedent, did not relate to Members of Parliament as justices of the peace, but to advisory committees, which is an entirely different thing, and appears clearly from the terms of the law. In regard to the question of Members of Parliament, the position was made perfectly plain in an answer I gave which I will quote: My noble Friend leaves it to individual discretion to decide whether a Member of Parliament should exercise judicial functions during the period of his Parliamentary representation. At the same time the Lord Chancellor is disposed to think that a Member of Parliament who devotes himself to serving his constituents in Parliament may feel that this cannot be well combined with the exercise of judicial functions by him in his constituency, and he would not regard a Member as neglecting his magisterial duties if he felt that it was, on the whole, better for him, while he is a Member, not to sit on the Bench."—[OFFICIAL REPORT, 14th November, 1945; Vol. 415, C. 2089.] It is left, therefore, entirely in his own discretion.
In regard to publicans, I cannot deal with that matter in the short time I have at my disposal. But, in their case, it is thought that because of their relations with persons who resort to their premises in respect of which they hold licences, difficulty might arise if they were justices of the peace.

§ Mr. Bowles
I think my hon. and learned Friend ought to explain that Lord Willingdon, the Lord Lieutenant of the County of London, said that this referred to the Lord Chancellor's wishes and his view was that it should be left to the taste of the individual concerned.

§ The Solicitor-General
I am sorry. I gave an answer to this House with the approval and authority of my noble Friend and I ask the House, however that might be interpreted by the Lord Lieutenant, or anybody else, to accept that as the view of my noble Friend.

§ Mr. Bing (Hornchurch)
rose—

§ The Solicitor-General
I am sorry I cannot give way. I wish to say that the fact that a particular person is regarded as disqualified does not in the least imply any reflection on him whatever. It is important that that should be remembered. In the interests of accuracy, I wish to say that neither I nor the Attorney-General, have ever said that the persons to whom the disqualification applies could not be impartial. I say quite emphatically that I have not the slightest doubt that political agents—

§ Mr. S. Silverman
rose—

§ The Solicitor-General
I am sorry, I cannot give way. I have very little time.

§ Mr. Silverman
The hon. and learned Member has 10 minutes.

§ The Solicitor-General
The objection to the employment of political agents is not that they would not be impartial, but that the public might be disquieted because it might seem to them that there was possibility of bias. I am not committing my noble Friend to the view that that is a sufficient reason necessarily for disqualification, but I would say that there is a strong case for that view. Let hon. Members imagine the position of a full-time political agent who is called upon to adjudicate in the case of a political opponent, whom he may have spent weeks in denouncing, with whose policy he may acutely disagree, whom he may cordially dislike, and with whom he may be in intimate personal contact in various relationships every day.

§ Mr. S. Silverman
What about the Lord Chancellor himself?

§ The Solicitor-General
In such a case, if he were called upon to adjudicate on a person of that sort, the public, who place trust in the impartial administration of justice, might feel disquiet. They might wonder whether such a person could be expected to be entirely impartial and judicial in a case of that sort. Let us take 2320 the converse case, where he is called upon to adjudicate in regard to a strong supporter of his own party. The public might think that there was a strong temptation for him not to be completely judicial. I do not suggest for a moment that he would not be, but the whole principle is based on this, which is very fundamental, that justice should not only be done, but should be patently seen to be done, and everybody who sees it administered should feel confident that it has been done. That is the case for the disqualification with regard to political agents. May I also remind the House that the disqualification is only said to exist in the case of fulltime paid political agents. My hon. Friend the Member for Nuneaton said that he thought 53 agents had been so appointed. If he will look into their cases, he will find that they were not fulltime political agents, but were secretaries—

§ Mr. Bowles
I said secretaries.

§ The Solicitor-General
No disqualification has been held to exist in their case, although the principle might be said equally to exist perhaps in quite the same degree in their case. My hon. Friends quoted the case of recorders and the Lord Chancellor himself. There is a distinction, although my hon. Friends may not accept it. After all, the persons to whom they refer, recorders and the Lord Chancellor, are persons of high judicial training. Their past experience and the work which they have been called upon to undertake at the Bar has been such as to make apparent to them the urgent necessity of distinguishing a judicial function from the function of an advocate. Therefore, they have certain qualifications in that regard which a person who has not that legal training may not be thought to have. I emphasise "thought to have." I should have thought that if one was asking whether the public would be more satisfied with the determination of a person who was legally trained, although he had political associations, and the determination of a person who had political associations and was not legally trained, they would be disposed to have far more confidence in the case of a person who was legally trained.
It may be said that the disqualification should apply to everybody who has any sort of political association. One has to draw the line somewhere, however, and the line has been drawn for some years past, not by the present Lord Chancellor, 2321 but by many of his predecessors consistently, at the stage where one gets from the local unpaid organiser to the paid organiser who is paid to give his full time towards this particular work. That is where the line is drawn. When my noble Friend took office in August, 1945, he found himself confronted with this position, that this extremely difficult and delicate question of such utter and vital importance had not been considered by any Royal Commission since 1911. Life has changed since then; times have marched on. He thought, and I ask the House to say that he was justified in thinking, that that was particularly the sort of problem which should be investigated by a Royal Commission after the expiry of some 36 years. For those reasons, the Government thought it right to advise His Majesty to appoint a Royal Commission. The more difficult these problems are, as instanced by my hon. Friends, and the more apparent contradictions and discrepancies there are with regard to the policy of Parliament, the more important and the more right, in my submission, was the judgment of my noble Friend in thinking that it was high time the whole matter was submitted to an impartial body which could take evidence on the matter and which would have expert knowledge of it.
I am told that the Royal Commission is still taking evidence, and I apprehend that it may go on taking it for some months, but in due course their recommendations will be forthcoming. It may well be that their recommendations will be of sufficient importance for this House to discuss them. I would ask the House to say that it would be undesirable in those circumstances for my noble Friend to change the practice until these recommendations are to hand. As I have pointed out, it is not as if the disqualification existed only in the case of full-time paid political agents. If he changes the practice in that connection, is he also to change the practice in the case of publicans, beneficed clergymen, solicitors, police officers and so on? Disqualifications for various reasons are said to exist in other cases. Is he to reverse the whole practice and introduce innovations of his own which are contrary to and fundamentally different from the practice laid down and followed year after year by his predecessors? The view my noble Friend takes is that it is 2322 undesirable to do that. If he changes the practice, what is to happen supposing the recommendations of the Royal Commission are that the practice should continue to be followed? If he changed the practice now it would mean that he would be a priori expressing disagreement with those recommendations. It is far better, for the time being until those recommendations are to hand, to continue the existing practice, and that is what he is doing.

§ Mr. Bowles
Then from now on he will tell every full-time political agent to resign tomorrow? What about the Attorney-General's agent?

§ The Solicitor-General
The Attorney-General's agent is not a full-time political agent.

§ Mr. Bowles
Is he paid?

§ The Solicitor-General
I am told not, but whether he is or not I can say that my noble Friend, if a case of a fully paid political agent exercising judicial functions as a justice of the peace were brought to his notice, would ask him to resign or suggest that he ought to resign. That is what he would do, and that is the consistent practice he thinks it right to follow.
I ask the House to say that here is a position in which there has been an established practice; it is an elaborate code, you cannot tinker with part of it without, logically, dealing with the whole of it. It is now under investigation by the Royal Commission, whose terms of reference specifically cover the question of the appointment, qualifications and disqualifications of justices. They will in the course of a few months make recommendations, which no doubt will be of the highest importance from the national point of view. They will require careful consideration. During that period my noble Friend has every intention of continuing the practice which he has inherited from his predecessors until those recommendations are to hand and have been fully considered. He will then consider whether any change in the established practice should be introduced. Until then it is his intention to follow the established practice.

§ Mr. Driberg (Maldon)
Can my hon. and learned Friend say whether Members of another place are similarly disqualified?

§ The Solicitor-General
So far as I know, no.

§ Mr. Driberg
Why not? Are they nonpolitical?

§ The Solicitor-General
This is an established practice which is being continued for the time being. Why should they be disqualified? I would ask my hon. Friend to say if he thinks they ought to be.

§ Mr. Driberg
No, I do not.

§ The Solicitor-General
The same kind of disqualifications in their case have not been thought to exist. The disqualifications have been clearly worked out in practice in the particular categories I have instanced.

§ Mr. Driberg
What is the difference between the House of Lords and the House of Commons?

§ The Solicitor-General
I have explained that a Member of Parliament is left to 2324 his own discretion in deciding whether he will continue to exercise judicial functions. There is an obvious distinction, in point of fact, that a Member of Parliament is in close touch with the personalities in his division. He knows intimately every-body who is there, particularly the prominent personalities, and that is not the case with members of another place.

§ Mr. Driberg
But they live somewhere.

§ The Solicitor-General
Yes, they live somewhere, but they are not in intimate contact or closely associated with a particular place, that is the difference between the two.