HC Deb 03 March 1948 vol 448 cc457-84

Read a Second time, and committed.

7.1 p.m.

Major Sir David Maxwell Fyfe (Liverpool, West Derby)

I beg to move: That it be an Instruction to the Committee on the Bill to leave out Clause 41. The Clause to which I wish to refer, and to which I hope the House will give most careful consideration, deals with the position of petty sessional divisions and justices' clerks. The administration of justice should be left quite clear and apart from interference, so that everyone who goes into the courts and has, therefore, reason to consider and weigh up the administration of justice, is satisfied with this position that exists. Broadly the point which I want to put to the House is that this Clause will constitute an attempt to interfere with justice, which will have an evil result.

I should like very shortly to remind hon. Members of the history of this matter. In last year's corresponding Bill, it was suggested that the two points which are involved, first, the responsibility for the alteration and revision of petty sessional divisions, and, secondly, the appointment and payment of justices' clerks, should be transferred to the Standing General Committee. This is a Committee on which the London County Council would have 50 per cent. of the members. That Clause was withdrawn after objection had been made, but almost immediately afterwards the London County Council sought to introduce, by way of a late Clause in the Bill, the provision which is now before the House. That was rejected by the Standing Orders Committee in another place as being, as I understand it, a close approximation to the Clause on which there had been an undertaking to withdraw. It is now introduced again. There is just one footnote to that history which I think the House ought to bear in mind, and that is that on 1st May, 1947, the London Council justices objected to this proposal and asked the Magistrates' Association to oppose it, the voting being 63 to 22, which was practically a three to one vote of the justices in the County of London.

The second point that I want to put to the House is that this proposal is not on the lines of the Report of the Committee presided over by Lord Roche which dealt with justices' clerks. The Roche Committee had in mind that the local authority should prepare and submit a scheme for the creation of a magistrates' courts committee. The Roche Committee contemplated that the right hon. Gentleman the Home Secretary would introduce, and this House would pass into legislative form, a scheme of general legislation by which this magistrates' courts committee would be appointed. The magistrates' courts committee would deal with the question of the revision and alteration of petty sessional boundaries and also with the appointment of justices' clerks.

Taking the most important aspect of the matter, the proposal to which we object is that in Subsection (7) where it says that an order under this Section, in so far as it relates to the remuneration of justices' clerks or of persons transferred to the service of such clerks, would be, first of all, subject to an agreement between the magistrates' courts committee and the County Council and in default to an agreement with the Secretary of State. The Roche Committee's suggestion was, I submit, a very different one. It was that the magistrates' courts committee should make the appointment and fix the remuneration after consultation. The more one considers this point the more one sees that there is a very great deal of difference between these two proposals. In one case the appointment of the clerk, which is of great importance to the justices sitting at petty sessions, would be made by them and the remuneration and salary would be fixed by them. In that case they would remain in control. In the other case, instead of being the fixing body, they become a negotiating body, who have to enter into negotiations and try to reach agreement with the local authority, and their position is immensely undermined.

The third point where there is a departure from the Roche Committee's recommendations is that the magistrates' courts committee would have to consult the London County Council on the alteration and revision of districts. That again seems to me to be a matter for the justices. The Roche Committee say that they should be masters in their own house, and I see no reason to depart from that suggestion. Those are the differences.

Why is it that we say that these differences are important. It comes to this, that the London County Council is deeply concerned as a litigant with the litigation that goes on in those courts. The figures are striking. In 1946, out of 3,192 cases which were brought in these courts, no fewer than 1,980 were cases in which the London County Council was concerned either as prosecutor, complainant, or whatever may be the appropriate term. In 1947, out of 3,342 cases they were concerned in 1,879—that is, one year 62 per cent, or very nearly two-thirds, and the second year a little less, something like 56 per cent.

The Home Secretary has carried on and exemplified the admirable tradition which has rested in the Home Office in the relation between the Home Office and the administration of justice in London. I want to make it quite clear that, as far as my experience goes, there have been no complaints, but we have the position that there the central Government has the recommendation of the appointment of the magistrates and the same powers with regard to clerks, and it has also its very intimate connection with the Metropolitan Police. That has been developing for about a couple of centuries and it has gone very well. However, here we have a very different matter. We have not the central Government but a local elected body, which is very strongly concerned in the litigation which takes place in the courts, now asking for very extensive powers in regard to the appointment and remuneration of justices' clerks and also the powers which I have mentioned with regard to the alteration and revision of districts.

Even if we were completely satisfied—I would remind the House that there have been difficulties in the past—that there would be no interference and no difficulties created by reason of action taken by benches with which a certain clerk had sat, that is not the end of the matter, because what is important is not only that justice should be done, but that it should appear to be done. I cannot put it better than in the words of the Home Secretary himself when he was addressing the Justices' Clerks' Society on 12th September last year. The right hon. Gentleman said: It is important that the ordinary citizen should understand that the Government, whether national or local, when it appears in court has no privileged position but has to establish its case or see the case against it established in the same way as the ordinary private citizen; and that there is no central-direction of the way in which magistrates should act, that their decisions can be challenged in the courts but they cannot be overridden except in the most exceptional circumstances by any act or fiat of the Government of the day. I agree with every word. The right hon. Gentleman went on to say: That is a position—

Mr. Berry (Woolwich, West)

Now apply that to justices' clerks.

Sir D. Maxwell Fyfe

I shall, but the hon. Member must not truncate the admirable sentiments of the Home Secretary on the occasions when he does express admirable sentiments. I shall not say whether they are few or many. He went on: That is a position which it is very essential in this modern world, after the experience of the last 20 years, to maintain, and not merely to maintain as a principle but to see working day by day in practice in the courts. The hon. Member for West Woolwich (Mr. Berry) has asked me to apply it to magistrates' clerks. I ask him for a moment to forget the responsible position which he occupies in many spheres. I am not being sarcastic; he knows what they are, and he will take it as quite genuine. Let him try to put himself for a moment in the position of one of my clients of years ago who goes into a police court. He has to answer a complaint made by the London County Council, and just before he goes into court he is told, "You know, before any one of these gentlemen who advise the justices and who"—this is the opinion of the world—"have great influence in advising the justices, can get an extra £50 or £100 a year rise in his salary, there has to be an agreement between him and the people who are prosecuting you today." I ask the hon. Gentleman to look at it that way.

I ask hon. Gentlemen to approach this in the manner in which I am sure they will all attempt to understand it. For years there has been at attempt to get rid of the term "police court." Why? Because people like the client I have been describing, when they came into a building which was called "police court" thought, "This is the court of the police: this is the court where the police have power." Of course, they were wrong. However, I want British citizens not only to get justice, but to believe that they will get justice. I do not believe it will help if they know these facts, and someone is sure to tell them. As Sheridan said, some kind friend is bound to bring one bad news or anything bad said about one. Someone will say, "You are going to summon the L.C.C. You have not got a hope in—" whatever expression they like to use. That is put colloquially. I put it like that because during my first years at the Bar, I was constantly in petty sessional courts of all kinds, largely in the North of England, and am very familiar with the people who go to these courts and with the doubts and fears which occur to them.

I, therefore, asked hon. Gentlemen to consider this matter, I do not say from a sympathetic point of view, but from the point of view of trying to understand the mentality of those with whom we are dealing. That is the position, and I would add a footnote which may sound technical but is not so technical as it sounds. The Home Secretary will bear me out when I say that Section 34 of the Criminal Justice Act, 1914, which is differently framed from this, had to be introduced because of one incident and a certain fear on the lines on which I have spoken, though not concerned with London. I do not want to go into ancient history and drag out troubles of the past, but it was a difficulty of this sort which produced the different provisions in that Act.

I am most grateful to hon. Gentlemen opposite, who started by being somewhat unsympathetic to my thesis, for the very patient hearing they have given me. I want to say one word on the general position, and it is this. We have had the Roche Report. We now have the Royal Commission, of which Lord du Parcq is Chairman, dealing with justices. I fully understand the position of the right hon. Gentleman. He has got the Criminal justices Bill, of which I have seen a certain amount in Committee, and I am not suggesting for a moment that he can easily find Parliamentary time, but I am quite sure that when he has these Reports and has had an opportunity of considering the matter he will be anxious to deal with this position of magistrates' clerks. I do not want to lay down opinions or to make this Debate a matter of opinion as to whether the Roche Report is right or not——

The Secretary of State for the Home Department (Mr. Ede)

I was a witness before the Committee.

Sir D. Maxwell Fyfe

If the right hon. Gentleman was a witness, then the Roche Committee had good fortune which many committees do not share. I hope to carry the House with me to this extent, that we should give grave consideration to the recommendations of the Roche Report and to whatever the Royal Commission may report, before we deal with this matter. When the Home Office and hon. Members in all quarters of the House have had a chance of consideration, then I think we will agree that the position of magistrates' clerks does require consideration and legislation. With the present set-up, there are possibilities of trouble arising. It is a great tribute to British good sense that trouble has not arisen before.

Therefore, this problem must be dealt with. I ask hon. Members who are very concerned with this Bill to consider it from that point of view. It would be very regrettable if we were to prejudice and prejudge the actions which this House ought to take on the Roche Report and on the Report which I understand will not be very long in coming from the Royal Commission, by introducing local attempts to deal with the problem. That is what is being done here. I do not think the precedent which is in the minds of hon. Members—I do not want to widen the scope by going into it in detail—has been such an astounding success in its change, to put it mildly, that they can get much solace from that. We have the alternative of tackling this question broadly, on the basis of altering the financial effect of the administration in the courts—that is, altering the destination of fines and making a national magistrates' clerks' service on the basis that they will be chosen by the justices and paid by the Exchequer, while leaving to the local authorities the question of buildings and the physical aspect of the matter. That is the alternative which we can adopt in the form that seems best to us when we have both the Reports.

The other choice is for piecemeal attempts to be made to deal with the problem by way of Private Bill. I suggest that from the point of view of the ordinary litigant, or from the point of view of order and form in our legislation—that is, in dealing with a national problem nationally by general legislation in this House in the ordinary way—we are led to hope and to ask that this suggestion of local legislation which involves the appearance of control of magistrates' clerks by the local authority should not be proceeded with.

7.25 p.m.

Mr. Berry (Woolwich, West)

We have heard a lot about justices from the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe). His form of justice, apparently, is the peculiar one by which he wishes to prevent a Committee of this House considering a Clause of the Bill simply because it relates to magistrates' clerks. I am bound to say that when he was talking so much about justice I queried good law. We all know the old tag of Seneca's about law and justice being strangers yet. As someone said to me after I became a Member of this House, "If law and justice are not the same thing, Parliament is to blame for it."

This Clause, which has earned the commination service from the right hon. and learned Gentleman—I can almost see him performing the commination service over it—does not depart from the recommendations of the Roche Committee. I rather liked his division of things—that the justices' clerks should be appointed by the magistrates, that their terms should be settled by the magistrates, and that the local authorities' part would be to pay them and provide the buildings, but that those who provided the buildings and paid should be shut out of things. I did not like the right hon. and learned Gentleman's sinister suggestion that justices' clerks could be influenced by those who pay their salaries. If that is his judgment of justices' clerks—and he knows much more about them than I do—then it must stand on the record of the House that that is his judgment. I thought a lot more highly of them. If he thinks that a responsible body like the London County Council—and I suppose I should declare my interest in this, as a member of the London County Council—which is the world's premier municipal body, would act in the way he has suggested, he shows that while he may have a wide knowledge of law, he just does not know the London County Council.

Mr. Paget (Northampton)

Surely, the point is not whether the London County Council would act in this way, or whether magistrates' clerks would so act? The point is whether the man who is being prosecuted by the London County Council thinks they would act in this way.

Mr. Berry

Perhaps my hon. and learned Friend would give me a chance; I was coming to that point. I remember that the right hon. and learned Gentleman placed me in the dock, so to speak, early on. He may have had more information than I in a former incarnation, but not in this incarnation. It is clear that neither the majority of justices' clerks nor the London County Council would act in the way suggested. It is not the justices' clerks but the justices who dispense justice and administer the law. I am aware that by the way some of them act they appear to try to arrogate to themselves that duty, and there has been many a battle. On occasions when I have been in court as a witness, I have heard those on the bench rebuke a clerk for overstepping the mark. It may not have been proper to rebuke him in open court, but the rebuke has been given. Justices' clerks are not the responsible people; the responsibility lies with those on the bench. It is right that an officer should tender any advice that he likes or deems fit, but it is always open to the person who is responsible to decide whether he should take that advice or not. I have frequently acted on that principle. There are people at the head of responsible bodies who take the advice of their officers as if it came from high Olympus. For my part, I generally add a bit of common sense and try to judge a case according to whether the advice given to me seems good or not. What is more, I generally try to have sufficient knowledge of the subject to enable me to judge.

It is a question of the people on the bench. With regard to the people on the bench every one in the House would be as one with the right hon. and learned Gentleman. We are all keen to keep English justice, English law and administration, as pure as ever it can be. While justice may be pure and free in this country, the law is, and has been for years, rather on the side of the person with the longest purse, who can hire the most experienced lawyer to act for him. If that is not contrary to the spirit of Magna Charta, I should like to know what is. Still, doubtless, the right hon. and learned Gentleman will give that matter his consideration. However, that is by the way, although it is very pertinent.

We are all at one in wanting to keep English justice as pure and clean as possible. If I thought that the London County Council had the sinister motive the right hon. and learned Gentleman has suggested, not only would I not be on my feet advocating that we should allow this Bill to go upstairs, but I should be on my feet denouncing the proposition. From more than one quarter it has been asked, What is the view of the person in the street, who goes into the court—the view of the person who sues a great local authority, whether it be the London County Council or a lesser authority? The view of that person is twofold. He can argue his own case, although I know it is an axiom of gentlemen of the legal profession, that he who is his own advocate has a fool for a client; or, he can hire someone of better calibre amongst those who can be hired. If the word "hire" is offensive, it is not intended to be.

Is it to be, suggested—but it has been suggested—that if they go into court knowing that the magistrates' clerks are paid by the authority, at once they will have the feeling that the dice are loaded against them? But that would apply still more, in even greater degree, where the committee of an authority sits in a quasi judicial capacity, because the whole of the officers of that committee are, in fact, paid by the local authority that is a party to what is under consideration. The Public Control Committee of the London County Council have to decide quite a number of things in that way. I can bear witness, both as a former member of that committee, and as an onlooker, that if all legal decisions, in this history of this country had been as fair as those, this country would have been much better off from the legal point of view than it is at the present time; and this House would not have rung with Debates in days gone by about the iniquities of more than one Lord Chief Justice. I may say in passing that one is delighted at the decision of the present Lord Chief Justice, who the other day corrected some of the iniquities of the War Office.

All that one can ask the House to do is allow this Bill to go upstairs, so that the Committee may go into it. I am wondering of what the right hon. and learned Gentleman is afraid. He cannot ward to impeach the Committee that will sit or, the Bill, because not a single member of the London County Council will have a place on that Committee. In as much as that body is suspect in his eyes, it cannot be that a Committee of this House is suspect in his eyes. A Committee of the House, no matter how constituted, goes meticulously into the whole of the matter before it. A Committee of this House should not be stopped from considering a whole Bill, simply because the amour proper of magistrates' clerks is offended by this Clause. I do not know if the feelings of other people have been offended be fore by Clauses in public and private Bills; but, anyhow, that has not stopped the House sending those Bills to Committees for examination. I suggest that, inasmuch at we are at one with the right hon. and learned Gentleman in wanting to keep justice clean; and in wanting to have the appearance that justice is being done—in spite of the fact that almost all hon. Members here now are lawyers—the proper course is to refuse the Instruction suggested by the right hon. and learned Gentleman and allow this Bill to go upstairs to be thoroughly examined.

7.35 P.m.

Mr. Maude (Exeter)

If I may be allowed to detain the House for a very few moments to make a debating speech in reply to what the hon. Member for West Woolwich (Mr. Berry) has said, I hope the House will allow me immediately to say that the reason I am supporting my right hon. and learned Friend the Member for West Derby (Sir D. Maxwell Fyfe) has absolutely nothing to do with the London County Council whatever. I have not the same interest in that body, if I may say so without offence, as the hon. Member for West Woolwich, who has had a distinguished career on the London County Council for many years. Nor have I, like the Home Secretary, given evidence before Lord Roche's Committee. I notice that he appeared for the County Council's Association. A further member of that Association who gave evidence was called Lamb—which led whither, I do not know.

In replying to the hon. Member for West Woolwich, let me put first this consideration. It is not possible, I believe, in a moment of calm such as we have tonight for anyone in his senses to think that we want to prevent the Committee from considering this particular Clause of the Bill because it concerns justices' clerks. That is putting our case too low. To put it at its proper height, I would say that we want to prevent the Committee from considering this Clause 41, because, in fact, it is against reason and common sense.

Let me remind the House of the very distinguished people who sat on Lord Roche's committee. First, there was Lord Roche himself, to whom one feels indebted, from a national point of view, simply because he is a most distinguished judge, and a man who is humane and sensible, having a great knowledge of human nature. There was Miss Margery Fry, Lord Merthyr, Mr. Leo Page—whose full part in our national life I sometimes feel we fail to realise—and Lord Schuster. There were other persons, but I have picked out these at random, because these I know. They took infinite trouble over this matter. To say that the Bill does not depart from the recommendations of that Committee is really to mistake what the Roche Committee recommended. The Roche Committee as I understand it, recommended that these appointments should be made with detachment to ensure that the appointments were nothing other than judicial appointments.

At first sight, it would appear to be unusual and strange that those who pay the piper should not call the tune. The Home Secretary confirms the appointments. Those who pay the fees have no say in the appointments. That may seem strange, but it is not inequitable. The person who appoints is the person whom I believe to be best qualified to appoint, whatever the Government of the day. I do not believe we shall ever get back to the state of the 18th century, when there was gross corruption in Whitehall, coming from the top. The appointment, curiously enough, is by the Secretary of State for the Home Department and the boroughs throughout England appear to have enjoyed the system. There has been no drive to abolish it. I do not remember having seen recorded, either in books of semi-fiction or legal text-books, any suggestion that the system has worked to the detriment of the State. Therefore, that is a curious instance in which the Secretary of State appoints and all is thought to be as well as possible.

What is suggested now in this London County Council (General Powers) Bill is really different from that. Indeed, there would arise under the terms of the Bill a situation in which persons who are not judical officers, that is, not justices of the peace, would suddenly have a say not only in the appointment but in the dismissal also; a situation in which these persons could undoubtedly bring influence to bear. My belief is that Members on both sides of the House know perfectly well from their experience of life that it is human to eye, at any rate discreetly, if not with anxiety, those persons who have the power of sacking one or of taking steps in the direction of getting what is so disagreeably called "the sack" administered to one.

It is perfectly true, as has been said, that magistrates' clerks are persons of integrity as well as experience; integrity was the chief quality which the hon. Member wished to stress. Nevertheless, the litigant appearing in front of a bench would feel more secure and much easier in his mind if he knew that those persons who have taken oaths to do justice, as we all have to do when we go on the bench, and who feel strongly, as do many hon. Members opposite, about their judicial work—they love doing it—should make appointments. It is much better that those persons who really have a vocation for this function of justice should make the appointments.

It does not really matter that those who pay the piper call the tune or make the appointments. In this case the loss to the L.C.C. will be absolutely nil. I hope that the House will forgive me for not giving the name of a particular borough; I am being particularly careful not to say whether it is a city or other-wise; but I have discovered——

Mr. Eric Fletcher (Islington, East)

Before the hon. and learned Member leaves the point he has been making, may I put this point? He has suggested, I think, that the L.C.C. would have some part in the sacking of magistrates' clerks. I am not sure why he says that. There is nothing whatever in Clause 41 which gives the L.C.C. or any committee of the council any power whatever with regard to the dismissal or termination of the office of magistrates' clerks.

Mr. Maude

I am obliged to the hon. Member. I may be mistaken, but I should have thought that under Subsection (5, a, ii) there was obviously a reference to that in the words all or any functions of the justices acting in and for divisions with respect to the appointment and termination of the appointment of justices' clerks.

Mr. Paget

If the hon. and learned Member would permit me, may I say that there is Subsection (6, a) which deals with the alteration and abolition of a division, or the constitution of a new division.

Mr. Maude

I am obliged to the hon. and learned Member. It is essential that we should know what is intended and what is possible. I hope that the House will think that it is a grave matter for an outside body to interfere in the appointment, let alone the consideration of the terms of remuneration, etc., to which the hon. and learned Member has drawn my attention.

It is true that in this country, as the hon. Member said, the justices and not the justices' clerks administer the law, a remark which was greeted by two rather faint cheers, I forget from which side of the House. The real truth is, as we all know—and I assume that we have all tried to read as much as is possible for busy Members to read of what the Roche Report says—that the influence of magistrates' clerks on the justices is simply enormous. There can be no doubt about that. When the Judge-Advocate used to retire with members of a court martial, the man who was being tried had the idea, if there had been an adverse summing up, that the Judge-Advocate was going to put in a word against him. So, in the same way, it is not beyond the experience of myself and the members of my profession, who I hope will support me in this, that the justices' clerk is a most extraordinarily important person in court. I look back over 25 years and I can remember, as a young barrister, feeling that the magistrates' clerk was a person whom one should know by name, and smile at, so that at any rate he should not dislike one and should listen patiently to one's argument. It is obvious that in the complicated cases which now come before the courts, and are doing so in increasing numbers, it is extremely important that one should not think that justices' clerks are without a considerable amount of influence.

As I say, my mind is not influenced by the question of any particular county council. My mind is tremendously influenced in this matter by the fact that persons for whom I have enormous respect have given tremendous thought and care to this and have decided what was best. I now see something coming along which I believe the right hon. and learned Gentleman was right in raising tonight. He must have known, as most of us must have known, that we should have a comparatively small House tonight, but that it would be composed of persons who would really consider it worth while just to think again.

I believe, and I say this with deep sincerity, that this is the wrong way to approach a matter of major importance, that the proper way to do it is in exactly the way the Roche Committee suggested. I should infinitely prefer to see the State, the central authority, pay for justices' clerks rather than some local authority. I believe that to be right. I believe that Lord Merthyr's addendum to the Report, which was an important one, was right, that in fact the situation would be worsened by this provision of the Bill as it stands. The fact that standing joint committees have at the present lime powers not dissimilar to these which are asked for is an argument the wrong way. The sensible thing is to take the real step forward that Lord Roche and others have indicated, and to thank them for it.

7.49 P.m.

Mr. Gibson (Kennington)

I ask the House to reject this Motion, because the Clause in the Bill is good common sense. I am supported in that feeling by the fact that for some years I was a member of the standing joint committee which, as the House knows, consists half of justices and half of members of the county council, the justices being the people who most regularly attend. But during the whole of that period the standing joint committee in London has been in favour of something similar to what is proposed in this Clause. I have never heard any of them say a single word against it. I left the standing joint committee in 1945, but I do not think they have said anything contrary since then. My point is that those people who were engaged in administering the business of the courts in the London area were all, magistrates as well as county council representatives, unitedly in favour of the proposals contained here. Indeed, they were in favour of much more drastic proposals, such as were contained in the Bill of last year.

It seems to me that if the House is to be influenced by people who have had the job of administering the business side of the petty sessional courts, then they must be influenced considerably by the unanimity of opinion which has been shown in the past by the standing joint committee. I agree, as I am sure does every hon. Member, that the last thing anyone in the House, or in the country, would wish to support is interference by elected persons with the administration of justice. I would join with anyone in a fight against such interference by elected persons, especially in view of some of the things that have happened in Europe in the last year or two.

What does the Clause propose? It proposes that a joint committee of the justices shall be set up; that that committee shall consider a scheme for the reorganisation of the London Petty Sessions and such questions as the salaries of clerks and, what is equally important, of the people employed by the clerks; that the justices shall prepare a scheme and that they shall consult the London County Council when they have prepared their scheme. If they can reach agreement, the scheme will be submitted to the Secretary of State, who shall consult representatives from any body before he gives the final order. It seems to me, therefore, that there is ample protection for anybody who may have any fears as to what may happen under Clause 41 of the Bill.

A good deal has been said about the Roche Committee. I have not a copy of the Committee's Report before me, but I think that in paragraph 92 of their Report the Committee referred to the undesirability of direct control by elected people. There is no direct control by any elected person in this proposal. The proposal is a scheme for reorganisation, which everybody who has had anything to do with the courts in London during recent years will admit has to be carried out. The scheme will be prepared by the justices. The fact that all the money has to be provided by the London ratepayers, through the London County Council—as indeed it is now—and that the London County Council shall be consulted before the scheme is finally put into operation, is, in my submission, good common sense, and will bring a little better business management into the affairs of our courts in London.

What is equally important is that it will give a definite status to the magistrates' clerks, and the people they employ, and will give them the pensionable rights which, at the moment, they do not possess. It will, therefore, achieve something which is in line with the work of this House, at any rate, for the last two and a half years. I hope the House will not be impressed by the kind of vague suggestion that this is some attempt by elected persons to interfere with the administration of justice. It has the support of the standing joint committee and of anybody who has made a study of this matter. I hope the House will reject this Motion.

7.55 P.m.

Mr. Paget (Northampton)

We are concerned here with justice. I hope very much that we shall not divide on the party line in this matter because justice is universal. It is suggested that this direction is a kind of hole and corner affair to prevent the Committee upstairs from considering what is in the Bill. That surely does show a misunderstanding of how this House works. I say that with great respect. We have a Second Reading Debate. The Second Reading is to consider the principles involved. After we, as a House, have settled those principles it is a matter for the Committee to consider the details. I do not propose to go into the details of this Clause. The right hon. Gentleman dealt with them with great lucidity.

Mr. Oliver Poole (Oswestry)

Will the hon. and learned Member please address his remarks to the House, and not to his hon. Friends behind him, as he is inaudible?

Mr. Paget

I am sorry. If the hon. Member was sitting somewhere else it would be better.

Mr. Deputy-Speaker

The hon. Member must address the Chair.

Mr. Paget

The point we have to decide is whether we approve of the principle behind Clause 41. I will not use any controversial terms, but it is to give to the London County Council control over the appointment and remuneration of magistrates' clerks——

Mr. Albert Evans (Islington, West)

Will the hon. and learned Gentleman indicate the Subsection which states the powers that the county council will possess over the appointment of a single magistrates' clerk?

Mr. Paget

Yes, certainly: (7) An order under this Section in so far as it relates to the remuneration of justices' clerks or of persons transferred to the service of or appointed by the committee to assist such clerks in the performance of their duties shall provide that the remuneration of every such clerk or person shall be such as may be determined from time to time by agreement between the committee"——

Mr. A. Evans

There is no word in that Subsection of dismissal or employment of justices' clerks.

Mr. Paget

No. The Subsections which involve this point are Subsection (5, a, ii) and Subsection (6, a). Those are the provisions which involve both the appointment and dismissal.

Mr. House (St. Pancras, North)

On a point of Order, Mr. Deputy-Speaker. The subject under Debate is the consultation between the London County Council and the justices. The question of appointment and termination does not come within the purview of such consultations.

Mr. Paget

The question of remuneration is something which is to be bargained for between those two bodies. On the remuneration of any clerk, or if it is proposed to increase the remuneration they have to agree. The council has some voice in the remuneration of the clerk and that is quite sufficient to bring up the principle. I do not want to go into a Committee point as to the extent to which the council have a word in the appointment or in the dismissal. That is a matter of detail. It is quite sufficient that what we are dealing with is the remuneration.

There are two principles involved, about which we shall all be in agreement. The first is that it is most important that the executive and the judicial functions shall be absolutely apart. The second is that if the magistrates' clerk is to be a judge or has a judicial function—that is the point upon which this argument arose—it is wrong that he should be dependent in any sense at all, whether it be for appointment, dismissal or remuneration, upon the people who appear as parties in actions tried before him.

Mr. Berry

Tried before him—the magistrates' clerk?

Mr. Paget

Yes, the action is tried before him, in a physical sense. He is sitting there, and they are in front of him.

Mr. Berry

Does my hon. and learned Friend suggest that the magistrates' clerk is a judge?

Mr. Paget

That is exactly what we are coming to. I understand that we are all in agreement that Clause 41 is wrong, if the magistrates' clerk is to be a judge but not if he is—[An HON. MEMBER: "No."] Somebody disagrees with what I have said. My hon. Friend has said most emphatically that Clause 41 would be utterly wrong if the magistrates' clerk were the judge. I would deal with this matter from the practical point of view.

I have appeared and practised in a great many magistrates' courts in my time. There are magistrates' courts in which the clerk does not play a very prominent part and in which a strong chairman is in charge of the court and really conducts the proceedings. There are also courts which are ruled by the clerks with a rod of iron. [An HON. MEMBER:—"It is wrong."] It may be wrong, but it is mere casuistry to say that, in such courts, he clerk is not the judge. [An HON. MEMBER: "That may be so in London."] If the clerk be the judge, it is wrong that he should be remunerated by the prosecutor. That is the practical point. Even in the best conducted courts, he is a judge, in that he is the judge of the law. It is for the magistrates to decide the facts. It is for the clerk to direct them as to the law. Take an ordinary court. The judge is only the judge of the law. The jury are the judge of the facts. So, in a magistrates' court the clerk is the judge of law and the magistrates are the judges of facts. In view of that, we can say that the clerk is a judge.

The clerk has one other duty which is more important than that of being a judge. It is a duty in which his complete independence of the prosecutor is most important. Most people who appear before magistrates have no idea how to conduct their case. Among the most important duties of a magistrates' clerk is that of seeing that the defence is brought out and properly presented. It is his job to see that the prosecution's witnesses are cross-examined, that the defence which a poor layman is quite incapable of developing for himself, is put effectively to those witnesses and that the defence is developed and understood by the magistrates. If that be the clerk's duty, and it is his most important duty, it cannot be right that he should be remunerated by the prosecutor. That is the principle. Surely, it is elementary. His function is such that for him to be remunerated by the prosecutor, and for the prosecutor to have a say in what he earns, is quite wrong.

Now let us look at the matter from another point of view. It is deeply important that those who administer justice should be fair, and that those to whom it is administered should have a feeling of absolute fairness. If we pass the Bill in its present form we shall not get that position. The Association of Magistrates' Clerks—the Bill is to their advantage, as it gives them pensionable rights—are bitterly opposed to the Bill, it spite of that financial advantage. They have put in a Memorandum begging us to reject the principle, because it will involve their independence. Not only are the Magistrates' Clerks Association, to their financial disadvantage, taking that line for the sake of their independence, but the Magistrates' Association are also taking it.

I was today having lunch with Mr. Daniel Hopkins, who sat for many years as a Labour Member in this House. He is now a London magistrate and chairman of the Magistrates' Association of London. They are affected by this Bill. He, as a Labour man of great experience on these benches, is anxious that we should give the Committee this Instruction. He feels that the Bill would involve the independence of the court over which he sits and that that would be bad for justice. I would like to read a passage from the evidence which was given by Lord Schuster, who was for 30 years the Permanent Secretary to the Lord Chancellor and was more responsible than anybody else for the appointment of magistrates and for advising the Lord Chancellor. He said: It is impossible to avoid the suspicion in the public mind that the body which fixes and pays the salaries and sanctions any increase to it has some control or influence over the recipients. I am quite sure that there are places where the clerk's salary is affected by the way in which the bench happen to go on particular matters. Lord Roche asked him: Do you really think it has gone as tar as that? Lord Schuster replied: I am quite sure that it has. If a bench throws out prosecutions, the clerk feels, rightly or wrongly, when there is a reconsideration of his salary, that his conduct in court may affect that reconsideration. That is why the associations are bitterly opposing it.

Mr. Thurtle (Shoreditch)

Does the hon. and learned Member think for a Moment that the magistrates' clerk is justified in so thinking?

Mr. Paget

I can only say that Lord Schuster told Lord Roche that he was quite certain that magistrates' clerks were quite right in so thinking. I will not match my experience against Lord Schuster's, but I do not think that it matters whether he is right in so thinking. I do not think it matters whether the man in the dock is right in so thinking. The main thing here is that he does think so, that the magistrates' clerk thinks so, that the magistrates think so, and, far more, that the man in the dock thinks so. Again, I say that this is a matter of justice upon which we should not divide. It is a matter on which we should meet quite independently. If we pass this Clause, we shall do something which will injure the ordinary man who appears before the courts. It will injure his confidence in justice. He will feel that those who are responsible for seeing that his defence has a fair run—and that is the clerk's job—are in the pay and under the influence of the council.

Mr. A. Evans

They are now.

Mr. Paget

It is not fixed. The county council has no right in connection with, or influence on, pay.

Mr. Evans

Is not the hon. and learned Member aware that at present these salaries and conditions are fixed by a joint committee of the representatives of the County Council and the justices?

Mr. Paget

No, they are not. They are fixed by the justices, and by nobody but the justices. A previous suggestion was that they should be fixed by a joint committee. I urge that we should give this Instruction.

8.12 p.m.

Mr. Eric Fletcher (Islington, East)

We have heard some very inspiring sentiments from the right hon. and learned Gentleman the Member for West Derby (Sir D. Maxwell Fyfe) and from my hon. and learned Friend the Member for Northampton (Mr. Paget) about justice. I am sure we all agree with the ideals to which tribute has been paid. Justice should not only be done, but seem to be done. I rather doubt whether either the right hon. and learned Gentleman opposite or my hon. and learned Friend have done justice to the London County Council in some of the remarks they have made with regard to the purposes of this Bill and, in particular, with reference to Clause 41. I think hon. Members should know that, substantially, the recommendations of the Roche Committee have been followed in Clause 41, for reasons which I propose to show. It is untrue to say that there has been any departure from the recommendations of the Roche Committee in the sense suggested by the hon. and learned Member for Northampton. I really began to doubt at some stages whether my hon. and learned Friend had read Clause 41. Hon. Members should appreciate what it does.

At present justices' clerks in London, and I think elsewhere, are appointed in each petty sessional district by the justices of that particular petty sessional district. A Clause in last year's Bill by the London County Council was introduced for the purpose of transferring these powers to the standing joint committee. Objection was taken to that Clause which would have had that effect, and it was for the express purpose of meeting the objection raised in the House last year that the amended proposal, the new proposal in Clause 41, was inserted. It proposes that a scheme should be prepared. I want to make it clear that the scheme adumbrated in Clause 41 will ensure that the appointment in future of any justices' clerk in London is made by a committee of magistrates. Nobody else is able to interfere. That is precisely in accord with the recommendations of the Roche Committee. That Committee recommended that in each county there should be constituted a committee of justices from the whole county. That is the first and central purpose of Clause 41. The chairman and vice-chairman of the magistrates will automatically be members and there may be such other members as may be suggested. The scheme is subject to the approval of the Home Secretary. The county council have no say in the appointment of any magistrates' clerks or in the removal of them.

The only possible point which can be urged by the opponents of this Bill is with regard to the terms of remuneration of justices' clerks. It is conceded that the ratepayers of London, through their elected representatives, pay for the administration of justice, the provision of the courts and buildings, magistrates' clerks, clerical work, and everything else. Reference has been made on both sides to the recommendation of the Roche Committee about remuneration, but I propose, I think for the first time, to read textually their recommendation. The right hon. and learned Member for West Derby and the hon. and learned Member for Northampton both suggested that the Roche Committee recommended that matters of remuneration ought to be excluded from any interference whatever by the county council. That is not correct. I entirely agree with the tributes paid to the eminent, competent and worthy team who assisted Lord Roche in the valuable Departmental Report which was prepared. The Roche Committee recommended on page 30, that the powers and duties of the magistrates' courts committees should be: To fix all salaries to be paid to clerks.. after consultation with the Standing Joint Committee and with the Borough Councils concerned. I stress the words, "after consultation." Nothing is said expressly about London. The situation of London is always peculiar in these matters. It is clear from other parts of the Report that the Committee were seized with the special position that exists in London. Whereas outside London the borough and the county may be a police authority, and, therefore in that capacity is an interested party, in London the London County Council is not a police authority. Therefore, the general objections which occur to anybody about giving an elected authority, which is also a police authority, complete or partial control over the question of the remuneration of justices' clerks, do not arise in London.

I emphasise that the Roche Committee recognised the necessity for consultation between the magistrates' courts committee and the council, the elected authority. Either that consultation was to be real, or unreal. I imagine that it was to be real consultation, and that the Roche Committee contemplated that the local authorities concerned should be consulted on questions of remuneration. Therefore, they did not exclude that from their recommendations. In Clause 41 it is suggested that this matter of remuneration should, in the first place, be a matter for agreement between the magistrates' committee and the county council, and that, in the absence of agreement, it should be determined by the Secretary of State for the Home Department. It is not true to say that the county council is the determining or vital factor, or that the magistrates' clerks can really be influenced—which I thought was a most far-fetched suggestion. This Bill is designed to give a measure of security and protection, with provision for superannuation and remuneration for magistrates' clerks. It is designed to ensure that in future there shall be one body governing the appointment of magistrates' clerks on a sensible systematic basis instead of letting every set of magistrates in every petty sessional division select their own clerk.

In future, we shall have this centralised machinery, and that will be a great advantage. I imagine that the magistrates' committee and the county council will fix a proper scale of remuneration, but, if there should be any dispute, then this remuneration will be fixed by the Home Secretary. That, I think, is a very good thing, and is in accord with the observations of Lord Schuster and Lord Merthyr to which reference has been made.

Having had this full discussion, I hope the House will realise that, despite all the very eloquent tributes which have been paid to the great importance in this country of always having an independent judiciary, to which we all subscribe, and despite the occasionally anomalous situation of our legal system, in the sense, for example, that the head of our judiciary is also a member of the Cabinet, and that there are inevitably occasions when the State appears as litigant, no one has ever suggested that justice is defiled because, in the last resort, the Crown is a litigant in civil matters or the prosecutor in criminal matters, and also has to determine the remuneration, not only of judges, but that of clerks and the amounts paid to juries and everybody.

I hope that, having heard all the farfetched arguments that may be raised against this Clause, the House will resist the proposed instruction and support the London County Council in their endeavours to establish in London an opportunity of trying out these very recommendations of the Roche Committee, knowing that, in the pressure of legislative business to which this progressive Government are committed, it may well be some time before general legislation can be introduced to deal with the whole of these provisions.

8.22 p.m.

The Under-Secretary of State for the Home Department (Mr. Younger)

I rise to suggest to the House that the disagreements about this Clause which have been manifested in this Debate are of a type which can perfectly well be threshed out upstairs, and that they should be so threshed out. They are not of the fundamental character which would justify us in giving an Instruction to the Committee that this Clause is to be left out.

I am not concerned at this stage to defend in detail all the provisions of Clause 41 which have been attacked from both sides of the House. I want to remind the House that Clause 41 is quite a long one, and that the criticisms of it have been limited pretty narrowly to one or two passages in it, and that, broadly speaking, this Clause, if it were to be passed into law, would introduce a system which nobody has criticised and which is in strict accord with the recommendations of the Roche Committee.

If I might just recapitulate what the Clause does, omitting all the details in dispute, it provides for setting up a magistrates' courts committee and giving that committee power, subject to certain conditions, to revise the constitution of divisions, to make arrangements for the appointment and the termination of the appointment of justices' clerks and their assistants, to provide for their remuneration, and certain other ancillary matters connected with the employment and status of clerks and their assistants. Stated thus, I am not aware that these propositions are seriously in dispute. The Roche Committee certainly recommended that some system covering these points should be introduced, and nobody here tonight has suggested that it would not be useful to carry out this recommendation. The objections have related, I think I may fairly say, entirely to the part the local authority should play in all the matters contained in the Clause to which I refer. Throughout the Roche Committee's Report, it is certainly not disputed, nor has it been disputed tonight, that the local authority has a legitimate interest in this matter of the remuneration of clerks, and that the organisation of the system for which it is paying is an interest of some kind is, I suggest, common ground. The question is: what is the nature of that interest, and to what extent should it be given powers to look after its own interests in this matter?

My hon. Friend the Member for East Islington (Mr. E. Fletcher) has really absolved me from going into great detail in comparisons with the provisions of the Roche Committee's Report and the provisions of this Bill. I thought my hon. Friend made it very clear that, in previous speeches, there had been a great deal of exaggeration of the differences between the system proposed in the Report and the system proposed in the Bill, and I was glad that he corrected what seemed to me to be an inaccuracy in the speech of the hon. and learned Member for Exeter (Mr. Maude) in suggesting that the council had any effective part in the appointment or termination of appointment of justices' clerks. There is no such provision in the Bill, and the dispute really relates to the question of remuneration.

Sir D. Maxwell Fyfe

Will the hon. Gentleman forgive me for a moment? It is rather a vital point. If he would not mind following the Bill, he will see that Subsection (5) states that, subject to the provisions of the next following three Subsections, which includes Subsection (7), the order is to provide for the transfer to the committee— of all or any functions of the justices … with respect to the appointment and termination of appointment"— and so on. That means that the powers of the magistrates' committee in regard to appointment and termination of appointment are subject to Subsection (7); that is, in appointing and fixing a salary, they would have to be, subject to Subsection (7), in agreement with the local authority, so that the local authority would come in in that way.

Mr. Younger

I hesitate to cross swords on a matter of legal interpretation with the right hon. and learned Gentleman, but I am bound to say that, on reading the first line of Subsection (7), I read it as excluding matters relating to appointment, because it states— An order under this Section, in so far as it relates to the remuneration of justices' clerks"— and so on. I find it a little difficult to explain how any Subsection starting with those words could be taken to relate to anything but the question of remuneration, but that is a point which is quite suitable for discussion in Committee.

The point I wish to make now is that, if one compares the system proposed by the Roche Report and the system proposed in the Bill, one finds that the differences are much less substantial than has been suggested. I do not want to suggest that we should regard the Roche Committee's Report in any sense as our Bible, but I do subscribe to the expressions of respect for that Committee's views which have been made on both sides of the House, and I think that nobody here would be objecting to the provisions of this Clause if they thought that, substantially, the recommendations of the Roche Committee's Report were being followed. Under both systems, the final arbiter in this matter of remuneration is the Secretary of State. Permission by the Secretary of State is required in both cases, and, also in both cases, there is a provision bringing in the local authorities. In the one case under the Roche Committee, they are brought in under the phrase which says: Magistrates courts committees shall fix salaries after consultation with standing joint committees and borough councils. In the other case, under the Bill, Subsection (7) says that remuneration is to be determined by agreement between the committee and the Council. If hon. Members will turn to paragraph 171 of the Roche Committee's report—which I do not think has been mentioned so far—they will find that the two things compare even more closely, because there it is pointed out that, whilst the magistrates courts committee is to fix the salaries, the Secretary of State is to fix them in the event of a local dispute. That is really precisely the same thing as saying that it is to be determined by the Secretary of State in default of agreement.

I think there may be some small divergences, very suitable for discussion in Committee, between those two solutions, but I find it very hard to see that there is a great difference of principle. Much the same thing applies to the other main point in dispute, which is the question of the power to group and regroup divisions. There, again, in both cases, confirmation by the Secretary of State is required, so that he is, in any event, either in the Report or the Bill, the final authority.

Under the Bill, it is said that what the Secretary of State has to pronounce upon is a scheme proposed by the justices' committee in consultation with the local authority. That is what the Secretary of State is called upon to confirm or reject. It is true that, under the Roche Committee's recommendations, there is no mention of the intervention of the Council at that stage, before it reaches the Secretary of State. But there is a provision that the Secretary of State, when this matter comes before him, must hear representations from persons or bodies concerned. It is inconceivable that the phrase, "persons or bodies concerned," should not include local authorities. Therefore, before the Secretary of State takes his final decision which, in either system, is the effective decision, it is perfectly clear that there will be an opportunity for the local authority to make its point of view known.

I do not wish at this stage to be appearing to take sides between these two ways of doing it. That seems to me to be eminently a matter which might be discussed upstairs; but when one compares those two things carefully, one cannot really find a great issue of principle affecting the whole status of justices' clerks, and affecting the whole impression which defendants or other parties in these courts get of the administration of justice.

Before I sit down, I will just touch on one other point which has not been mentioned by many hon. Members, although it was mentioned by the right hon. and learned Gentleman. It is the question whether or not this Clause should await incorporation in some national legislation following out the recommendations of the Roche Committee's Report in general. I would only say that it is not possible, at the present time, to state how soon such legislation will be introduced, that the reorganisation, which can only be effected under this proposed Clause, has been considered urgent in the County of London ever since before the war; that there are real advantages to be gained, both for the administration of justice and also, as has been stated, for the position in relation to terms of service of the justices' clerks themselves by introducing this provision where one can.

As my hon. Friend the Member for East Islington said, the County of London has always, for purposes of this kind, been something of an exception. There is nothing anomalous, nothing wrong in itself, in treating the County of London alone in this matter. I should have thought it was eminently reasonable to take this chance to put this system, with which, in general, everybody seems to be in agreement, into force in this self-contained area, one of the most important areas in the country. As the London County Council (General Powers) Bill is coming forward at this moment—a type of Bill in which this Clause may very suitably be included—I would suggest to the right hon. and learned Gentleman and the House that it would be a mistake to prevent a proper discussion of what, I submit, are relatively detailed differences of opinion, in the Committee upstairs.

Question put, and negatived.