§ General Sir George Jeffreys (Petersfield)
I beg to move, in page 4, line 4, to leave out from the beginning, to "who," in line 7.
The effect of this Amendment is to delete the provision for the entering in the supplemental list of the names of persons who are 75 years old or over and who neither hold nor have held high judicial office. That provision is unnecessary. I am not here as an advocate of those old people who are senile or who have not got possession of all their faculties—for instance, those who are deaf, which is the worst defect of all from this point of view. However, I suggest there are not a few justices of the age of 75 or over who have all their faculties and who are very able justices. It would be a great mistake to place them automatically on the supplemental list.
In many instances those old magistrates have one possession which young magistrates, as a rule, have not got. I refer to their considerable experience. I suggest that the position of those who are senile or who have lost the use of their faculties is adequately dealt with under subsection (4, b). There it is laid down:… the Lord Chancellor may direct that the name of any person appointed a justice of the peace … shall be entered in the supplemental list … if the Lord Chancellor is satisfied either—(i) that by reason of that person's age or infirmity or other like cause …That seems to be very wide indeed. It might be that a person was suffering from senility before he attained the age of 75. I suggest that those words cover every kind of case which may arise. If a man, whether he be 75 or not, is incapable of properly performing his duties because of age or infirmity, the Lord Chancellor may direct that his name shall be entered in the supplemental list.
On the other hand, merely to introduce an arbitrary limit, such as the age of 75, and place everybody who reaches that age on the supplemental list automatically would be a mistake, particularly as there 1726 is adequate provision in that part of the subsection which I have just quoted. Further, if the Amendment is approved, it would be possible to delete subsection (6) which provides that:Until the expiration of five years from the coming into force of this section, the said rules may also provide for exceptions from the provisions relating to justices of the age of seventy-five years or over in any area where it appears. to the Lord Chancellor necessary in order to have enough experienced justices.If we do not make the rule which is. outlined in subsection (4, a), then we do not need subsection (6) at all. I hope this matter will be reconsidered, because I do not think that the Amendment interferes in any way with the spirit of the Bill, but that it may have the effect of retaining on the bench certain. justices who are very useful and very experienced. I therefore hope that the Government will favourably consider my suggestion
§ Mr. H. Hynd
I must disagree with the hon. and gallant Member for Peters-field (Sir G. Jeffrey) in what he has said about this Clause, though I do so in no spirit of disrespect for age and experience. I would say, from my discussions with people who are interested in this Bill, that the only doubt seems to be whether 75 is too high an age. The hon. and gallant Gentleman pointed out that in another part of the Bill the Lord Chancellor has the right, and indeed the duty, of removing justices for certain reasons, and I am sure that he will agree that it is putting too much on the Lord Chancellor to expect him to write to somebody and say, "In my opinion, you are now senile and should go on the supplemental list." That is what the suggestion boils down to, and it would be embarrassing for the Lord Chancellor and even more embarrassing for the recipient of such a letter.
I feel that, by and large, the Bill has provided a solution which will be acceptable to everyone, including the people most concerned, because those who are serving at present, and serving with distinction, above the age of 75 or just approaching it, will have this saving Clause. I am the first to recognise the truth of what the hon. and gallant Gentleman has said about the brilliant exceptions, because I am fortunate enough to be serving on a bench of which the present 1727 chairman is over the age of 75 and is a brilliant exception to the rule.
Nevertheless, a line must be drawn somewhere, and I feel that I must give all the support I can to the proposals in the Bill to draw that line at 75 and to give these five years of grace for those who are serving at the present time. That is the only way in which we can achieve the object which surely every one of us must have in view, which is to get rid of the old idea which has done the bench no good—the idea that the people on the magistrates' benches are people who are going "ga-ga" and are beyond the age at which they are still in possession of their full faculties. We want less of the great-grandfather attitude on the bench, and a little more of the fatherly attitude, in dealing with the unfortunate people who come before our courts. Therefore I support the Clause as it stands.
§ Lieut-Colonel Boles (Wells)
I am neither 75 nor a justice, and I can therefore claim to be quite disinterested in this matter, but I do feel that this is a very arbitrary line to draw. The hon. Member for Central Hackney (Mr. H. Hynd) has said that he knows of a very active-minded man over 75 who is doing his job perfectly well. Therefore, I see no reason to draw this hard and fast line. The hon. Member said that the line had to be drawn somewhere, but surely it is better to draw it on the efficiency of an individual rather than on a certain datum line of age?
§ Mr. H. Hynd
May I say that I thoroughly agree with the hon. and gallant Gentleman, provided that some way can be found as to who is to be the judge of efficiency?
§ 4.15 p.m.
§ Lieut-Colonel Boles
That definition was drawn by my right hon. and gallant Friend who proposed the Amendment, when he pointed out that those people who did not possess the qualifications could be dispensed with.
There is this further point about the matter. Magistrates are very hard people to find, and we are not going to find all the younger men who will be willing to take on the job. I had some experience in trying to appoint magistrates, and they are not at all easy to find. Unless it is necessary to do away 1728 with those now serving, I do not think it would be right to do it. Of course, if there is any suggestion of senile decay, let us have them out by all means and let anybody be the authority to do it who is in a position to judge. The Home Secretary must know of many cases of people who are perfectly able-minded beyond the age of 75, and who have acquired a large amount of tolerance and wisdom which is invaluable to them in sitting on the bench. I therefore support the Amendment.
§ Mr. Logan
I do not think I am suffering from senile decay, and I am over the prescribed age, but I feel a great pleasure in carrying out this job on the bench to the best of my ability. Looking round on many individuals sitting on that bench, I think that, if there was a medical examination, it would not be a case of senile decay, because many of them are mentally deranged. I think the prestige of the men on the bench has to be considered.
I do not know how these selections are made. They are inclined to be the result of a sort of secret council on these appointments, and, when a list comes forward, we find that all and sundry are coming forward to sit on the bench. To be quite honest, many of those whom I see appointed to sit on the bench have been people whom I never regarded as being fit and proper for that job. I must say that because I have found many people chosen from the ordinary walks of life who have not been fit to occupy that high position.
When it comes to the question of removing some of these people, I think the Lord Chancellor would be the person on whom that duty would fall and who would find some method of removing them if the facts of the case were reported to him. I think that a little old age and some common sense would be more valuable than the decisions of some hasty, young J.P. who did not value what maturity means. Whether they are old or young people sitting on a bench, or whether we take the case of other people in ordinary public life, if they are not fit and proper persons for those duties, they should not be there at all, because I think they are very exalted positions. If we have people who are sane and hearty, who know what they are doing, who know the people with whom they have to 1729 deal and can weigh up judicially the cases that come before them, they are the people whom we ought to have on the bench, and we should get rid of all those who do not know what they are doing.
§ Mr. Marlowe (Brighton)
I want to support my hon. and gallant Friend the Member for Petersfield (Sir G. Jeffreys) in his plea to retain justices of the peace over the age of 75. It seems to me that this is a matter in which we cannot draw a hard and fast line at any age at which people ought to be called upon to retire. There are many people under 75 who are quite incapable of discharging their duties, just as there are others over 75 who are quite capable. It is essentially a matter which ought to be decided on the merits of each case.
It is not as if the Bill lacks power to deal with individual cases. An hon. Gentleman opposite spoke of the functions of the Lord Chancellor under the latter part of this Clause, and he said that it would be embarrassing for the Lord Chancellor to have to discharge the function of removing a man of 75 or over. Whether it is embarrassing or not, it is exactly the function which the Lord Chancellor will have to discharge under the later part of this Clause. I should have thought that it would be far more embarrassing to the Lord Chancellor to have to call upon a man of 35 or 40 to retire, because under the provisions of the Bill he is considered incompetent to discharge his duties. To my mind the argument that it may be embarrassing to the Lord Chancellor is totally irrelevant.
The only issue here is whether it is wiser to try to deal with these matters by rigid rules, or to consider each case on its merits. I support the latter view, and I hope that the Government will think again and leave those who have the experience the opportunity to use that experience in voluntary public service, bearing in mind that under present economic conditions it is becoming more and more difficult to find people to undertake these voluntary tasks. The social conditions of this country nowadays are making it increasingly difficult to find the right people who have the necessary time to give to this function. Very often a septuagenarian—always assuming that he 1730 is competent—is the person who can give the time to this function. Therefore, I hope he will be retained on the bench.
§ The Attorney-General
The hon. and learned Gentleman the junior Member for Brighton (Mr. Marlowe) alluded to the fact that the Lord Chancellor will have power under the Clause to transfer to the supplemental list magistrates who are under 75, and said that if the Lord Chancellor could do that in the case of magistrates under 75, he ought to be able to do it also in the case of those over that age. I venture to think that the Committee will agree that in the case of magistrates who, for one reason or another, demonstrate their unfitness under 75, it is usually much easier for the Lord Chancellor to act, and much less invidious for him to do so, than in the case of those whose only fault is that in their declining years they may not have the mental fitness and capacity which they previously possessed.
It is said that there are some magistrates under the age of 75 who are far more incompetent than those over that age, which I can well believe. Some magistrates are too old when appointed, and the answer is that they ought never to have been appointed at all. We are trying to ensure that in future they will not be appointed. By the measures being taken—some in this Bill—we are trying to improve the composition of the advisory committees and to ensure that magistrates are recruited from a wider area, but the remedy concerning magistrates under 75 who perhaps demonstrate their unfitness quite soon after being appointed is to take greater care in appointing them.
§ Mr. Marlowe
The right hon. and learned Gentleman said that steps were being taken in this Bill to make alterations in the composition of the advisory committees, but unless I misunderstood the position, I think he is wrong about that. I do not think that the Bill provides for any reform of the advisory committees.
§ The Attorney-General
The hon. and learned Member is mistaken. I said that steps were being taken to improve the position of the advisory committees, some of them in this Bill, and that in this sense that we are abolishing the small commissions of the peace because of the 1731 great difficulty that arose in constituting proper and satisfactory advisory committees in those cases. That is one of the reasons—I think I may say one of the major reasons—for the difficulties which have arisen in connection with the small commissions of the peace, and one of the arguments put forward both before the committees dealing with this matter and in this House for the abolition of the small commissions.
When it does happen that a mistake is made, and that in the course of his service after appointment a justice of the peace, perhaps comparatively young, shows some manifest incapacity, there is generally some pretty obvious reason—some gross incompetence, some misconduct, or something of that kind—which enables the Lord Chancellor to step in without any doubt about it and ask him to retire or to transfer him. The position—and I am coming back to this—in the case of a man against whom no specific act of incompetence can be alleged and who has certainly been guilty of no kind of misconduct, but because of advancing years is unable to handle cases as they ought to be handled, is one of much greater difficulty and embarrassment to the Lord Chancellor if each case has to be treated on its own merits.
I will come back to the real substance of the matter which was put so clearly by the hon. and gallant Member for Petersfield (Sir G. Jeffreys). I am bound to say that I feel perfectly clear about this matter at this time that there should be a retiring age, and 'I am equally sure that if and when I reach the age of 75 I shall be equally clear that it is a great mistake to have a compulsory retiring age of 75. I am afraid it is very rarely given to anybody when he reaches the age of 75 to realise that perhaps it is better to retire then—at the peak of his powers it may be—than to risk staying on and gradually drifting into a pathetic condition of senility. Of course, that sometimes happens, but I am sure it would never happen to me to realise that position at the age of 75.
§ Sir G. Jeffreys
Is it not laid down in this very Clause that those who hold high judicial office are exceptions to the general rule, and is it not very probable that at the age of 75 the right hon. and 1732 learned Gentleman may be holding high legal office?'
§ The Attorney-General
The hon. and gallant Gentleman holds out terrors for me which, I must confess, I had not hitherto contemplated. I am quite sure that whatever my position may be at that time, and in the unlikely event of my reaching that distinguished age, I shall be quite convinced that I am indispensable, that my great experience entitles me to lay down the law on anything although I have no experience of that particular thing, that I understand the problems of youth much better than anybody else, and that, in fact, I am a much better and fitter person than I was when a callow youth of 47, and I daresay I shall be perfectly right.
The difficulty about this matter is that at 75, as experience shows, mental powers do decrease although there are a great many exceptions to the rule. I fully believe that my hon. Friend the Member for the Scotland Division of Liverpool (Mr. Logan) is nowhere near 75, and I know that the hon. and gallant Member for Petersfield has a long way to go before he reaches that age. In any event, as I have said, there are many exceptions to the rule as experience shows, but the fact is that at 75 a substantial proportion of people are reaching a stage where their mental activities are beginning to slow down and where—and I think this is very important—not all of them, but the great majority of them, are beginning to get a little out of touch with the way in which the mass of the people are living, particularly the young people, and sometimes, perhaps, a little out of sympathy with the way in which the greater section of the community are carrying on their lives. We think that these people really ought not to be sitting in these courts dealing with the every day problems of the great mass of the people.
An hon. Member—I think on this side of the House—pointed out that there is an exception in the Bill dealing with those who have held high judicial office. Those people are, of course, ex officio, in most cases at all events, justices of the peace. As a rule they are not dealing with the problems of every day life in the courts; they are dealing in the rarified atmosphere of another place with abstruse problems of law, and everybody knows that the pursuit of law does promote 1733 mental activity until a very advanced age, but these are exceptional cases. We feel that in the ordinary run of cases the man over 75 is, to a certain degree at all events, out of touch with the current affairs of life and ought not to sit in court.
This Amendment would leave the law as it is at present. It would enable the Lord Chancellor to transfer particular individuals to the supplementary list as and when they reached that age. As one of my hon. Friends pointed out, it is really a most difficult and invidious burden to place upon the Lord Chancellor. It is very hard to say to one magistrate, "Although you are 75, your mind is as young as it ever was"—it is perhaps a doubtful compliment to pay in any case—and then say to the next one, "You are 75 and you have for a long time been too senile to sit on the bench." That gives rise to all sorts of difficulties and embarrassments, and the risk of local influence, canvassing and heartburning, and all the rest of it.
It is much better to have a clear-cut line, although wherever it is drawn it must be, in a sense, arbitrary and there must be marginal cases on each side of it. If we have a clear-cut line each justice as he reaches the age of 75 will, perhaps without any great regret or sense of injustice, be able to pat himself on the back and say, "I am making this sacrifice in the very prime of my life, in order to make those senile contemporaries of mine, who refuse to realise they are far too old to sit on the bench, get off it," and no ill feeling will exist on the part of anybody. For those reasons I hope that the Clause may stand as it is.
§ Mr. Manningham-Buller (Daventry)
I am a little disappointed with the right hon. and learned Gentleman's reply because his argument boils down to this: that not to fix a hard and fast line would involve difficulties and embarrassment for the Lord Chancellor. That seems to me to be a real reason for the imposition of this line. If that is true, if the Lord Chancellor is going to operate subsection (6) and provide that in certain areas people over 75 who have not held high judicial office shall continue to act as magistrates, I should have thought that that subsection would have caused quite as much heartburning, embarrassment and difficulties for the Lord Chancellor. It 1734 may be that it is not intended to operate it to the same degree, but whichever way it is done, if we are going to make any exception at all to the general rule, obviously there must be some little difficulty and embarrassment.
§ The Attorney-General
I hope that the hon. and learned Gentleman appreciates that that subsection only perpetuates the existing practice, experience of which has in fact caused great embarrassment, for a limited period—five years—in order to meet those areas in which there is a shortage of justices.
§ Mr. Manningham-Buller
I appreciate that, and if that provision is going to be operated we shall get precisely the same position during those five years as that to which the right hon. and learned Gentleman has drawn attention if the Amendment moved by my hon. and gallant Friend was accepted. While I agree with the right hon. and learned Gentleman in his general observations as to the effective age, and how we may look at things differently when we are older, I feel that there is a lot to be said for not imposing a hard and fast line of 75 and perhaps placing greater burdens on the Lord Chancellor.
I feel that there is great force in the arguments which have been adduced from both sides of the House in favour of this Amendment. I do not at all take the view expressed by the hon. Member for Central Hackney (Mr. H. Hynd) that the line must be drawn somewhere. Nor do I entirely agree with his plea that we want less of the grandfatherly interest and more of the fatherly interest, because one knows that it is always the grandfathers who spoil the children and it is the parents who are harder upon them.
§ Mr. Manningham-Buller
The hon. Gentleman's argument was based on the view that the grandfathers were less sympathetic than the fathers. I do not think that is well-founded. There are so many exceptions to the general rule that the 1735 right hon. and learned Gentleman was trying to lay down as to incapacity directly one reaches the age of 75, that I should have thought that we need not have altered the existing law in this respect.
Surely the Lord Chancellor should act on the advice of the advisory committees. If it be found on a particular bench that one or two members are getting too old, surely it would be comparatively easy to secure their retirement. The Lord Chancellor would have power under this Bill to enforce it, and with that power in his possession I should not have thought that he would meet with much resistance. It may be that in some cases there would be a little heart-burning, but I must say that I should have thought that the general heart-burning which would arise from the imposition of this arbitrary age limit of 75 would be much greater. If we are going to lay down such an age limit one begins to wonder to what other realms such an age limit might in future be applied. I was interested to note that the right hon. and learned Gentleman thought it wisest not to suggest that there should be an age limit applied to Members of this House.
I wish that the right hon. and learned Gentleman could hold out some hope of modification of this rule, because I feel that in its present form it will cause a great deal of heart-burning and dissatisfaction among those who perform public duties well for many years. I also feel that the automatic removal of people of great experience when they reach the age of 75 will not strengthen the administration of justice.
§ Sir G. Jeffreys
I should like to say one or two additional words on this subject. The right hon. and learned Gentleman has stressed the unpleasantness and embarrassment which would be caused to the Lord Chancellor if he had to put into force the powers which are given him in subsection (4) (b, i). Surely the Lord Chancellor would hardly be personally concerned. He would act upon the advice presumably of the lord lieutenant of the county concerned, who in turn would be advised by his advisory committee. I do not think that any inconvenience or embarrassment would be caused to the Lord Chancellor by such action; neither do I think that the lords lieutenant of counties 1736 and their advisory committees would be incapable or unwilling to make the necessary recommendations.
On the bench over which I have the honour to preside we have been rather short of magistrates of late. No fewer than three of my colleagues who were becoming old in the course of the last two or three years have asked me whether I would agree to their applying for transfer to the supplementary list. In two of those cases I had to agree. In one case in which the justice in my opinion was very active and in every way fit to continue his duties, I begged him to continue in order to help us out while we were short of justices. The point I would stress is that far from being unwilling to go, when they felt they were getting deaf, those elderly justices asked to be allowed to go on the supplementary list. I believe that there are many such cases in various districts.
§ The Attorney-General
I want only to take up the point which the hon. and gallant Member for Petersfield (Sir G. Jeffreys) made about the action of the Lord Chancellor. It is not a question of imposing inconvenience on the Lord Chancellor; if that were the case I should not hesitate about the matter. I do not say I am in favour of imposing inconveniences on Lord Chancellors, but I do not have very strong views about it. It is really that the task is a most invidious, embarrassing and difficult one for the Lord Chancellor to discharge and it is one that he discharges personally. He ought to discharge it personally under the Act and I know that at present he does discharge the duty personally. I know very well the difficulty and anxiety it gives him.
Although he discharges the duty personally he has to make inquiries and seek advice, and there is always at least a danger that the fact gets about that the Lord Chancellor is considering whether or not so-and-so should be removed from the bench because he is getting too old, and that results, in turn, in a certain degree of canvassing. Some people come forward and say, "You cannot remove him; he is so-and-so"; and other people come forward and say, "He is not really as bad as that; let him go on for another year or two."
The whole position so far as the Lord Chancellor is concerned becomes one of 1737 very great difficulty and if, at the end of the day, he is forced to the conclusion that he ought to retire the justice concerned, then that justice goes with a great sense of unhappiness, perhaps even of injustice towards himself, with great heart-burning, which would never arise if one were able to apply this standard, arbitrary standard though it may be, of retirement at 75. I hope the Committee will feel that in this matter the House really ought to accept the recommendation of the Royal Commission which considered the matter very carefully and, I believe, not unsympathetically and which, in the end, came to the conclusion that the best course was to have this age limit at 75.
§ Mr. Walker (Rossendale)
I am glad that I have caught your eye, Mr. Bowles, and that I have the opportunity to say a few words on this subject. It is not often that I agree with anything that comes from the other side of the Committee, but I most certainly support what was said by the hon. and gallant Member for Petersfield (Sir G. Jeffreys), who moved this Amendment. I have a personal interest in this matter; I am a magistrate and a member of an advisory committee, and I am over 75 years of age. I have not yet been a magistrate for 10 years. When I was approached and asked whether I would be a member of our advisory committee, I mentioned my age, but evidently the person who was responsible for my appointment in the first instance must have regarded me as being of exceptional ability because, the Lord Chancellor acquiesced in my appointment to the advisory committee and as a magistrate.
I think we are carrying this subject of old age a little too far these days. My hon. Friends have always made a great boast of the fact that the average age to which a man will live in these days is tremendously higher than it was 30 years ago. I remember that in my trade union not many years ago we regarded the average length of our members' lives as being in the region of 43 years, but today the figure stands well above 65, showing that the present conditions of human life help a man to live longer and retain his mental and physical faculties to a far greater degree than was the case 30 to 40 years ago.
1738 The other day, when the right hon. Member for Woodford (Mr. Churchill) was congratulated upon reaching the age of 75, I met him in the adjoining Lobby and I said to him, "Well, Sir, I congratulate you upon reaching the age which you have reached, but still you are not as old as I am." He looked at me and asked, "How old are you?" I said, "I was 75 years of age on 12th October." He said, "You do not look like it." I am bound to say that I do not feel like 75 years of age, whatever may be the feelings of my constituents. For instance, I have never worn glasses to read anything printed in these Bills or in HANSARD or in anything else. I have never had a pair of glasses on my eyes, and yet I can read the smallest print published. I can hear the ticking of the smallest watch I have seen anywhere. Here is another fact which may interest some of my hon. Friends. They say that one of the striking signs of old age is that a man begins to learn how to play bowls; well, I do not know how to play bowls.
The Government are telling me that I am suffering from senile decay or that I have not my faculties about me. I am not going to be a candidate at the next General Election, because I feel rather inclined to have an easy sort of life in the years before me. I could fight the election well enough. But when it comes to sitting on a bench of magistrates and judging whether a person has been drunk and disorderly, or has been driving a motorcar at a greater speed than he should have done, and all the kind of things that come before a magistrates' court today, then I consider that I am just as capable of judging as any younger person, man or woman.
I have been on the bench for not quite 10 years. I like the work, and I was looking forward with some sort of anticipation to the fact that, when I finished my job here, I could have a bit of relaxation—[Laughter]—and go on the bench of magistrates once a week. It is not a bit of good my hon. Friends laughing. I could give some of the younger blokes a start!
I agree with the hon. and gallant Member's proposal. I think he hit the nail on the head when he said that today the advisory committees are the people to decide whether a man is too old to sit on a bench of magistrates. I sit on my advisory committee and we have had 1739 several cases of this kind brought forward and have decided, as an advisory committee, in the place of the Lord Chancellor, that certain men had long passed their days of usefulness and should be asked to retire and be placed on the supplementary list. I think that is a very good arrangement, and I do not think it requires alteration by an Act of Parliament.
The advisory committee are appointed by the Lord Chancellor. The committee advise the Lord Lieutenant if the magistrates feel that a man or a woman has got beyond his or her job. They are the people who can give the proper advice to the Lord Chancellor. It is utterly out of the question to expect a gentleman sitting in London to know whether I—or anyone else—am fit for the job of magistrate. When the Lord Chancellor has a local advisory committee and has placed reliance on their wisdom and judgment, they are the people to say whether a man has become too old, has become inefficient, or is lacking the facilities to carry out the work of judging his fellow men who have done wrong in the eyes of the law. I feel there is no necessity to alter the law. We should retain the position in which the advisory committee consider whether or not a man is fit to do the job.
§ Mr. Janner
I appeal to hon. Members not to be misled by the specious arguments which have been used in favour of this Amendment, and I ask that we should consider very carefully the subject matter with which we are dealing in this Bill. After all, it is courts of justice about which we are speaking. I think my hon. Friend the Member for Rossendale (Mr. Walker) touched the real point when he asked, what does it matter, in a drunk and disorderly case, whether a person is guilty or not guilty, or what sentence ought to be imposed upon him? That is precisely the line of argument which I hope will not be pursued when we are dealing with questions involving the matters which justices of the peace have to attend to.
Their functions are extremely important functions. They have to judge the man in the street. They deal with the characters, the lives and the future of many, many citizens, most of whom regard their reputation as of just as great importance as the reputations of alleged 1740 criminals who are entitled to be taken before higher courts. In my own experience, I have come across hundreds of cases in which people on whom a penalty of even 10s. or so had been imposed who wanted to appeal against conviction because they felt that their characters were being impugned. Moreover, magistrates' courts have to hear in the first instance cases that may have to go to higher courts. The courts in which justices sit are, in my view, as important as any higher court, or as any other court in the land.
It is a very strange thing that nobody seems to have raised the point in this Debate that a judge in some courts, despite all the experience he has obtained as a judge, and all the amount of preliminary legal training he had to have before being appointed a judge, is expected to retire at the age of 72, and that it is only by special concession, I believe, that he is allowed to say on until he is 75.
§ Mr. Janner
I agree. Incidentally, a county court judge deals with civil matters which are often much less important than cases which go before justices. The county court judge deals with the civil matters of members of the same class of people who go before the petty sessions.
I would say that we should put aside our own particular ideas with regard to certain individuals, whether they be ourselves or some others whom we know, and who are quite capable of carrying out their duties as justices at the age of 75 or, it may be, even at 85. What we have to consider in this Committee, I submit, is this: Are there any cases in which, if this Bill were not put into effect, magistrates would sit after reaching the age of 75 who would be incompetent in consequence of their age, or—I go a step farther—who would even seem to be incompetent to a person who appears before them for trial? How many people walk out of a police court and say, "After all, what else would you expect from those old fellows sitting there?" Of course, many use stronger terms.
§ Mr. Janner
After all, juries are subject to the guidance of learned Council on both sides and the summing up of the judge, and so on; whereas magistrates have only their clerks, who sometimes, as my hon. Friend knows, guide not only—
§ The Attorney-General
I do not know whether my hon. Friend was suggesting that jurors may be too old? They retire at 60.
§ Mr. Janner
I am obliged to my right hon. and learned Friend. They may look 70, though. I think that that is what my hon. Friend had in mind.
§ Mr. Walker
My hon. Friend referred to magistrates who did not give satisfaction to the persons before them, and said they were old fogeys, or something of that sort. I have heard the same remark made about juries. I have heard them called ignorant people, who could not give a proper judgment.
§ Mr. Janner
I agree, of course, that such remarks were made. We want to avoid giving people the feeling that they appear to have been dealt with unjustly. We ought not to have—let us be honest with each other—we ought not to have people sitting on the benches who are over the age of 75, who do not quite take in all that is said—to put it at its very best—or who are not quite capable of understanding what is going on in these modern times. Let us, at least, say that there should be an age limit drawn somewhere.
I agreed with my right hon. and learned Friend when he said that, after all, the provisions of the Bill would remove many embarrassments. How can we expect local magistrates who are sitting together to say of one of their colleagues, "He is getting beyond it." My hon. Friend knows as well as I do that there are such difficulties. Even the advisory committee in the district just could not say such a thing without embarrassment, and yet the advisory committees throughout the country would have to say it about a large number of magistrates if this Amendment were agreed to. I would say in these circumstances that 75 is an age at which reasonably a man may be put on the supplemental list. The Bill does not say they are to finish all their duties as 1742 justices, and the proposal casts no reflection upon them in any sense. It says only that there should be a certain age which we should take as a limit.
One other point I would make is this. For many years magistrates have been appointed at much too old an age than they ought to have been. Today there is a tendency, I know, on the part of the Lord Chancellor and on the part of everybody concerned, to appoint younger magistrates, and that is why I feel that the proposal whereby the Lord Chancellor may make exceptions from the rules during five years should be maintained.
§ Mr. Janner
My hon. Friend will forgive me if I say that he is not speaking quite as clearly as he has spoken before. That is precisely what I am saying. If he had listened to me very carefully he would have noticed that I was saying that for five years, because of the shortage of magistrates of experience in certain areas, we must give an opportunity for the retention of the services of experienced men, as exceptions from the rules. That is precisely what the Bill says. We do not need the provisions of that subsection in places where there is not a shortage.
§ Mr. Logan
But it is quite possible for an anomaly to exist. All that this subsection says is that during five years… in any area where it appears to the Lord Chancellor necessary in order to have enough experienced justicesthe rules may provide for exceptions. This subsection is not operative by reason of the age of 75, and an inexperienced man could also be kept on because of the shortage.
§ Mr. Janner
I shall not say any more about that. I think my reading of the subsection to which my hon. Friend is referring is correct. He is referring to 1743 subsection (6). I would say, especially in view of subsection (6), that what the Bill proposes does not constitute an aspersion on any individuals. We should take care not only to do justice but to appear to do justice, so that people who appear before the courts may feel that justice is being done. We do not want them to feel that they are being judged by people who are too old to understand them. I hope that hon. Members will see fit not to press the Amendment.
§ 5.0 p.m.
§ Mr. Sutcliffe (Royton)
If anyone was in doubt whether or not to vote for this Amendment, I am sure that the speech of the hon. Member for Rossendale (Mr. Walker) will have decided him to vote for it. He spoke from his own personal experience, and I thought that he put forward the best possible case for accepting this Amendment.
There is one other matter which may have been overlooked. Let us not forget that if this Amendment is not accepted we shall bring real tragedy into the lives of many men who are, as the hon. Member for Rossendale is, fit and hale at the age of 75. I have especially in mind a man in my own constituency, a trade union official, who has given all his life to his trade union work and a large part of it to work as a justice of the peace. Now, except for a certain amount of trade union work which he is still able to do, his work as a justice of the peace is his only occupation. He is a highly competent man, and if he is deprived of his one great love—it is no exaggeration to say that it is his only love—at this time in his life, it will be a real tragedy to him.
He is a visiting magistrate to one of the large prisons, and he will also have to give that up. Placing him on a supplemental list, as the hon. Member for West Leicester (Mr. Janner) said, enables him to carry on the work to a small extent; but it is only to a small extent. It is the court work in which he is interested, and it is that court work which will be forbidden to him in future. Let us not forget these men who are in first-rate condition physically and in full possession of their faculties, just as much as many men of 60 or even younger, who will be forbidden this work if the Amendment is rejected.
§ Mr. Ede
It is only right that a few words should be said on this issue on behalf of the Government. I am bound to say that the vehemence of feeling shown tonight has surprised me. I had anticipated that we should be criticised for fixing the age too high. A number of hon. Members in the Committee at the present moment have experience of the courts, either as counsel, solicitors or magistrates.
§ Mr. Ede
Well, I have to be very careful not to cast reflections upon hon. Members, or I might get into trouble with the Chair. If there are any whose consciences prick them I hope they will benefit from the experience they have had.
The courts do not exist for magistrates. The courts exist to administer justice to the people, and in order to do that successfully the composition of the courts must be such as to make some appeal to those who appear before them, either as prosecutors, or as defendants, or as witnesses, that the magistrates are competent to deal with the issues as people who are, at the time they are sitting, fully in possession of their faculties, having a knowledge of the ways of the world. I say, as one who has been a magistrate now for 26 years, that I have sat with colleagues who have not given that assurance to the public, by their mere appearance on the bench. I have sat next to men who have said to me, "Tell me what he is saying?" I have myself on occasion, as a member of an advisory committee, had to make representations to the Lord Chancellor with regard to colleagues.
It is very difficult indeed to persuade one's colleagues to say, and to bring oneself to the point of saying, "Now, old So-and-so has really passed the limit." I could tell one or two stories in that regard which might be amusing were it not for the tragedy that they represent, of the loud laughter one has heard in court when a magistrate, who has been unable to follow the proceedings because of his physical defects, has made some utterance which indicates that he does not know anything about what has been going on. There are people of that kind, and it may involve some people in a tragedy. I recollect, as chairman of a 1745 county council, having to write to two colleagues, both over 83 years of age, to say that their colleagues would find it difficult to vote for their re-election as aldermen. That is not an easy letter to write. Neither of them continued; they did not go for election, and both of them were dead within three months.
I am quite certain that there are some people who, as my hon. Friend the Member for Rossendale (Mr. Walker) said, carry out these public duties as a relaxation. The justice of this country is too important to be old gentleman's relaxation, and I ask the Committee to approach the matter from that point of view. There are also cases where the continuance on the bench of men who are too old prevents the recruitment of suitable young magistrates, and in that way they block the necessary recruitment to the bench. I think that 75 years of age is a reasonable age to have put into the Bill. I should not have been surprised had there been an Amendment to make the age 70.
I am for the moment concerned with the appointment of recorders, and when appointing a recorder I ask him to give me a promise that he will submit his resignation on reaching the age of 70. I think that is an appropriate thing to do. I have had to write to three or four very old recorders asking them if they will place their resignations in my hands. Of course, the letter always contains a eulogy on their past work.
§ Mr. Janner
Is it not a fact that even today a similar request is made on the appointment of a magistrate?
§ Mr. Walker
When I was appointed a magistrate I was asked to give a promise that I would be prepared to retire on reaching the age of 75.
§ Mr. Ede
Now I understand the hon. Gentleman is not prepared to.
I wrote to one gentleman a eulogistic letter on his past services; he wrote back that he was glad to know they were at last recognised, and that if I would see they were publicly recognised, I could have his resignation. Now one ought not to be placed in that position. I suggest that for the due administration of justice 75 is a very suitable age to fix. Confidence is likely to be shaken in the 1746 efficiency of the bench if people beyond that age continue to sit. I therefore hope the Committee will agree that the Clause should remain as at present worded, and that the Amendment shall be rejected.
§ Mr. Scollan
And I was thinking that there was something that ought to be said on the matter before we come to a decision.
As a justice of the peace for the past ten years, with some experience, although not a great deal, of sitting on the J.P. bench, but quite a lot of experience of sitting on the ordinary magistrate's bench, I would remind the Home Secretary that while all he has said may be true, there is nobody either today or in the history of mankind, who could draw a distinct line at a certain age and say, "That is the line of demarcation between competency and incompetency." I have sat with young men of 45 or 46 who should never have been on the bench. They obviously lacked the necessary powers of observation and the necessary judgment for dealing with the cases that came before them.
When we are dealing with a matter like this, we do not dispose of it by simply saying that the age at which they shall retire is 75 because after that they are incapable of carrying out the duties placed upon them satisfactorily and will not carry the confidence of the public.
§ Mr. Scollan
The whole of the argument this afternoon has been to the effect that the confidence of the courts would be strengthened if the justices were under 75, and would be shaken if they were over 75. I do not think that anybody who has attended these courts fairly regularly will ever be taken in by that kind of argument. Some other method will have to be devised to ascertain the competency of the people sitting on the bench. Up to the moment, all we have had is a cowardly kind of method of setting down an age limit which cannot be operated effectively. We are not going to eliminate all the J.P.s who are incompetent simply by putting 1747 down an age limit of 75. We should desert that argument altogether, and simply say that, in the absence of knowing what to do in this matter, we have struck at random an age of 75, when we might as well have struck an age of 55 for any good which it is likely to do.
§ Amendment negatived.
§ Mr. Boyd-Carpenter (Kingston-upon-Thames)
I beg to move, in page 5, line 8, at the end, to add:(11) Rules for the purpose of this section shall be made by the Lord Chancellor by Statutory Instrument, which shall be subject to annulment by resolution of either House of Parliament.The purpose of this Amendment will, I think, take somewhat less time to discuss than the one immediately preceding it. The Clause itself deals with the placing on the supplemental list of certain magistrates under rules made by the Lord Chancellor. The effect of the present Amendment would be to secure that these rules were subjected to a certain measure of Parliamentary control. They would be subjected to negative procedure, that is to say, the rules would be subject to annulment if a Motion were carried in either House of Parliament under the procedure of the Statutory Instruments Act.
If one thing emerges more clearly than another from the discussion of the previous Amendment moved by the hon. and gallant Member for Petersfield (Sir G. Jeffreys), it is that the whole question of the supplemental list is a difficult and delicate one upon which strong feelings can be aroused and upon which it is sometimes difficult to come to an accurate and satisfactory decision. Therefore, it seems right to secure that the vital rules under which this shall be done shall be subject, if hon. Members so desire, to some measure of control by the House.
After all, we are here to deal with the removal from judicial duties of members of the courts which deal with the overwhelming majority of the criminal cases in this country. That is a point of some substance, and while casting no reflections on the manner in which the present Lord Chancellor or a future Lord Chancellor will carry out this delicate task, it does seem that this is not one of those matters which the House should delegate to even so exalted an officer of the Crown without maintaining some measure of Parlia- 1748 mentary control. That is the purpose of the Amendment.
Anticipating one point which no doubt the Attorney-General will make, I say at once that I am not completely satisfied with its form, inasmuch as if it were inserted in the Clause it would be necessary to make some consequential Amendments in subsection (1). That is a point of detail. The point of principle is abundantly clear, that this is one of those matters over which the House should retain some limited power of veto.
§ 5.15 p.m.
§ The Attorney-General
I found the concluding remarks of the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) somewhat surprising, as I practically never take a drafting point, and I would not dream of doing so in this case. If the principle is right, drafting matters can easily be dealt with at some subsequent stage. The question here is whether the principle of the Amendment is right.
I am all in favour of Parliamentary control but not, perhaps, Parliamentary control for its own sake. If there is some good reason for the existence of Parliamentary control in this particular matter, by all means have it; but is there? In 1941, the Government, in which the hon. Member's party formed a considerable majority, passed an Act called the Justices (Supplemental List) Act, of which this is an exact reproduction, except in the matter of the age limit, which does not affect this particular point. In that Act there was not then a provision that the rules should be laid. Circumstances have not changed since that time. This is purely a machinery matter and does not involve interfering with the administration of the courts of justice, and if there was no reason in 1941 for going through the procedure of laying and making rules subject to a negative Prayer, the hon. Member has certainly not advanced any good reason for doing so today. There is no change of circumstances, and what seemed good to the Government of that day seems good to us. I hope that the hon. Member will withdraw his Amendment.
§ Mr. Boyd-Carpenter
I do not regard the argument that because a thing was not done in 1941 it should not be done 1749 today as a particularly attractive one, nor, indeed, have I noticed it being applied in other spheres of governmental activity during the last few years.
§ Mr. Boyd-Carpenter
I am asking the right hon. and learned Gentleman to exercise a wise discrimination here. Leaving aside the substantive merits of the matter, I think that it is a little unfair of the right hon. and learned Gentleman to take that argument of 1941. I was not a Member of the House at that time, nor, I think, was the right hon. and learned Gentleman, but I understand from those of our colleagues who were Members that they were working under very great difficulties during restricted Sessions in rather varied places of meeting; and, without casting any reflection upon them, it is obvious that in the circumstances of those times legislation could not have the detailed attention and scrutiny which in the relatively peaceful circumstances of today it is our duty to give to it. Therefore, if the Attorney-General's argument is merely that it was not done in 1941, and therefore there is no reason to do it now, that appears to be one of the least effective arguments I have ever heard used by the right hon. and learned Gentleman.
I should have been more impressed if he had been able to direct his mind and argument to the subject of the matter, that these rules affect the personal composition of what I believe to be one of the most important series of courts in the country. They affect the personal position of many people who are giving important services to the State and they affect indirectly the actual composition of the courts as they sit. When we recall what relatively trivial matters it is open for the House to discuss on Motions to annul orders—it is open to the House to annul an order of the Ministry of Food to alter the points value of snoek—it is absurd for the right hon. and learned Gentleman to seek to deny to the House the right to discuss the composition of petty sessional benches throughout this country. I must admit that I am not satisfied with the right hon. and learned Gentleman's reply.
§ Mr. Hollis (Devizes)
The last thing I envisaged was that I should intervene in the discussion on this Amendment; but I must be allowed to say one or two things, because I am terrified by the argument the Attorney-General has used. I thought everyone knew that one of the great problems, not merely of this Government, but of the whole of modern life since the 1914 war, was this growth of delegated legislation and the continual cutting down of the powers of the House of Commons. We all know that Lord Hewart wrote a book on the subject, and how difficult it may be to find a solution. The problem has not arisen merely in these last few years. It seems quite terrifying that, instead of addressing ourselves to this problem on its merits, we are merely doing something because it happened to be done in 1941, when the two sides competed against one another in undermining the powers of Parliament. It is by far the most terrifying argument I have heard for a long time, and I must say that I am very much frightened by what the Attorney-General said.
§ Sir John Mellor (Sutton Coldfield)
I hope that we shall have a better reply from the Attorney-General because, apart from what my hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) said—that the House was not really able in 1941 to give the full attention desirable, to legislation, and things did slip through which we have often since regretted—as the great mass of delegated legislation has developed, the House has become more and more attentive and anxious to preserve its proper measure of control. Therefore, the Committee should not be satisfied with the very off-hand answer given by the Attorney-General. We should have some reasoned argument why, in this particular context, it should be undesirable for the House to have the power to annul. After all, it is a very simple procedure, and it is attempted only in cases where, on the merits, there are obviously good grounds. The Government need have no apprehensions that the rule-making authority will be embarrassed in any way.
§ Mr. James Hudson (Ealing, West)
I am not sure that I am satisfied with the reply of the Attorney-General to this Amendment. I know that he made a good debating point about the evil past 1751 of Members opposite, and that they have 1941 like a millstone round their necks.
§ Sir Ian Fraser (Lonsdale)
I was in that Parliament. The right hon. and learned Gentleman said nothing whatever about Members on this side, but was talking of the House in general, when the Labour Party could have raised the point. It was a general situation and not a party one.
§ Mr. Hudson
If the hon. Member had waited, I was going on to say that there was an evil past for those who accepted this position. I am not concerned, because I was not a Member in 1941. I am not satisfied with the position the Attorney-General has laid down. The rules under which the Lord Chancellor will act will cover a great many more subjects than those with which the Committee has concerned itself today. The age of 75 is a diminutive part of the rules the Lord Chancellor may make. There is a likelihood of exclusion from the bench of magistrates, and of those on the supplemental lists, which fills me with anxiety.
For example, there are the exclusions recommended by the Lord Chancellor's Department to the Royal Commission. Some of those recommendations greatly alarm me. I hope I shall not be out of Order in raising this point, but I am interested in the exclusion of magistrates who are supposed to hold strong views about certain subjects on which they will have to give a decision. Take the case of drink. All sorts of issues come up in the courts where drink is involved—I am not merely referring to the licensing sessions. but to motoring offences, and so on.
If Parliament cannot have a say with regard to these rules, we may have an authoritarian attitude adopted by the Lord Chancellor's Department to rule out magistrates who are now doing excellent work. It has been recommended by the Lord Chancellor's Department, for instance, that Rechabites, many of whom are doing good work as magistrates, should be excluded because they have made pledges as to their unwillingness to touch or taste intoxicating liquors. I admit that there is a difficulty in the matter, but if the Lord Chancellor acts in this way against the Rechabites, it means that some 600,000 people are concerned. It also means acting against the 1752 Sons of Temperance, who also have a membership running into hundreds of thousands. Then there are the people in temperance movements and in the Church with strong opinions about the dangers of drink, who have stated openly that they recognise such dangers.
Is the House willing to give to the Lord Chancellor a right to make rules to say "Because these people have expressed that opinion, or given a pledge, or put themselves on the side of temperance, we shall, without any further discussion in Parliament, make these rules the absolute rules in the community"? I do not think it is the process of democracy to grant the present Lord Chancellor, or any other, the absolute right to make rules without in some way providing for an appeal against those rules. It is said that Parliament is not the place to which to make an appeal, but at the moment I do not know of any other. I am sorry that the Attorney-General has shown a little bias in this matter. When I interrupted him during the Second Reading, he spoke about the magistrates who flooded into court when cases were being heard which involved temperance interests.
§ The Attorney-General
I hope my hon. Friend will not hold that against me, but I thought I indicated and, if not, i will do so now, that those who take the opposite view are equally active on these occasions in trying to pack the bench; but it usually happens that my hon. Friend's friends are in the majority.
§ Mr. Hudson
I have long experience in this matter from the opposite angle. Even when I had not been successful in persuading friends of mine to be present, I have seen benches flooded by parties who are interested in the case from the opposite point of view from that to which I am referring.
A number of us feel anxious about this matter. Today, there are large numbers of Rechabites who are doing good work as magistrates, and I would also remind my right hon. and learned Friend of the Society of Friends, who are doing very good work in the community and who take a great interest in temperance. If they are to be ruled out by a rule which the Lord Chancellor has said he will bring in. there is a case for some very careful 1753 reconsideration of the matter. If the Attorney-General says that there can be no submission to Parliament, or discussion of the rules, I would like him to assure me that there will be some way by which the rules can be reconsidered
§ Mr. Marlowe
I appeal to the Attorney-General to deal with this matter on its merits. Up to now, although he said he was not making a drafting point, the right hon. and learned Gentleman has limited himself to making a debating point. His reply that this was the procedure adopted by the last Parliament, in 1941, has no relevance at all to this question. A number of things were done in 1941 which a Parliament that has more leisure to consider these matters would do in a different way. I think that this is the first time I have heard any Minister commending something because it was passed by a Tory majority in the House.
§ Mr. Marlowe
The right hon. and learned Gentleman bases 'his case solely on that; and by adopting that attitude he is doing scant justice to the Amendment. It may be that there is a good answer to the Amendment, but so far we have not heard it. I ask him to give us the courtesy of an answer on the merits of the case, leaving aside what happened in 1941 or on any other previous occasion. It is clear that, apart from the question of putting justices of the peace on the supplemental list, there is power under the rules to remove them from that list. Nothing is said about the criteria which the Lord Chancellor is expected to observe in exercising that function, or the manner in which he should discharge that duty. These matters will have to be dealt with under the rules.
The extent to which legislation is brought into being by rule and regulation rather than by Act of Parliament becomes increasingly large. Where it is necessary to proceed by rule, I think it is most essential, unless there is a good case to the contrary, that the rule should pass through Parliament before becoming effective. There seems to be no objection to Parliament considering this matter. So far, the Attorney-General has not suggested one. These rules will affect the status of a large number of people, and it seems quite unnecessary that they should be dealt 1754 with by administrative means beyond the control of the House. I ask the right hon. and learned Gentleman to think again, and to see that this matter is dealt with by Parliamentary procedure.
Sir I. Eraser
The Home Secretary has said that he was surprised at the warmth and feeling in the House at the proposal that magistrates should be automatically retired at the age of 75. The feeling was expressed in all quarters that that was a change which should be carefully considered before being put into effect. The rules proposed to be made, and which the Attorney-General refuses to submit to the House, affect similar people in a similar manner. No one knows what are to be the rules under which people shall be added to the supplemental list; no one knows what are to be the powers of the magistrates on that list; there is no possibility of discussing the matter. All that can happen is that an edict can go forth from the Lord Chancellor saying, "Here is the law as we have made it within this Department." Parliament cannot pass such a matter of widespread interest, affecting so many people, without having an opportunity to discuss it, and I hope my hon. Friends will press the Amendment, which is an important point of principle, to a Division.
§ The Attorney-General
I cannot help thinking that hon. Members who addressed themselves to this Amendment have completely misconceived the position. There may be occasions when it is appropriate to raise the whole subject—and a very interesting subject it is—of delegated legislation. If hon. Members think that this is the best opportunity of raising it, then the case against delegated legislation is much weaker than I thought. Perhaps it is my fault to some extent that hon. Members have not understood the position that arises under this Clause. I said that this procedure had worked satisfactorily since 1941. The rules are in existence, and everybody knows about them. They have been operating, but there has never been a single complaint in regard to their operation. Hon. Members who feel it right to criticise the Clause, representing as it does merely the continuance of the existing law, might have familiarised themselves with what the Clause did and how it operated before they thought it right to criticise its continuance under this Bill.
1755 Let me put to hon. Members who have not taken the trouble to read it, what, in fact, the Clause does. The rule-making power, which is constituted under this Clause, is of the most limited kind that I have seen in any statute which delegates the power of legislation to any Minister or Department. My hon. Friend the Member for West Ealing (Mr. J. Hudson) is completely at fault and obviously had not read the Clause when he supposes that it entitles the Lord Chancellor to decide by rules who shall or who shall not be put on the supplemental list. That is provided for under subsection (4).
The powers which the Lord Chancellor will have to make rules under this Clause are extremely limited. The Clause does not enable the Lord Chancellor to make rules as to what is to be done, but merely as to how to do that which Parliament authorises should be done by the Clause itself, and the limits of those powers are very clearly defined. This is pure machinery; it is the clearest case of pure machinery that I have ever had to present to Parliament.
§ Sir I. Fraser
Under the subsection the types of infirmity which might be deemed by the Lord Chancellor to bar a person from continuing to sit on a bench of magistrates are set out. In other words, the type of infirmity is given which might lead to a magistrate being transferred to the supplemental list. Would that be a matter in which the Lord Chancellor would use his discretion as to which rule should apply, or would this be one of the rules?
§ The Attorney-General
Most certainly not. That is not a matter than can conceivably be dealt with by the rules. It is laid down in the body of the Bill itself, and the Lord Chancellor will have to direct his attention to the merits of each particular case and to the tests which are laid down in the Bill. He cannot add to those tests; he cannot take away from them by rule; nor can he provide by rule how those tests are to be applied in a particular case. This is pure machinery. I am going to read the rules to hon. Members so that they can realise what a false point they are on. The rules that can be made under this Bill do not affect that matter. If they did, I can well understand the anxiety which hon. 1756 Members feel about the matter. It would be said, and, indeed, it has been said by my hon. Friend the Member for West Ealing, "Here the Lord Chancellor will be able to say that a Rechabite is not to be a justice of the peace." Nothing of the kind can be done under this Bill.
If one looks at the Clause, one finds that subsection (1) merely provides that there may be a supplemental list and that rules may be prescribed. The machinery is stated as to how particular names, which the Lord Chancellor has decided upon, should be included on the list. Then there is provision as to who is to keep it, how it is to be looked after and that sort of clerical work, but the power to put names on the supplemental list is not given by that subsection at all. Subsection (4) has to be looked at in order to ascertain what the power is. Subsections (2) and (3) of the Clause deal with the powers of the justices who are put on the supplemental list. That is not to be governed by rules at all but is set out in terms in the body of the Bill itself.
Then we come to subsection (4), which sets out the conditions, and the only conditions, under which a person may be transferred from the active list to the supplemental list. All that is pure machinery. I have the existing rules here if hon. Members are interested in them. A more tedious exercise than reading them I cannot imagine, but I am quite prepared to read every one of them, and if anybody doubts after that that they are machinery of the dullest kind I shall be surprised. They were made in 1941 and they have been in existence ever since. They have not been altered; I see no reason why they should be altered now.
They have all operated in exactly the same way in the last eight years without exciting the criticism of my hon. Friend the Member for West Ealing or the hon. Gentleman the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter). If anyone wants to hear what the rules are I am quite prepared to read them out, but I can assure the Committee they are machinery matters of the simplest kind.
§ Mr. Boyd-Carpenter
I should like the Attorney-General to clear up one point. He said that these rules will go on. Is that an assurance that the new rules made 1757 under this Clause will be substantially the same as the rules made under the 1941 Act?
§ The Attorney-General
Yes, certainly. I cannot bind the Lord Chancellor to say that the rules will be exactly the same, but I asked about it and it is said at the moment that there is no reason to be seen, why the rules should be substantially altered. There is the one that covers the case of those who are retired at 75. That is the only new factor in this matter, and so far as I can see there is nothing to necessitate any significant change in the rules as they exist at the present time.
§ Major Sir David Maxwell Fyfe (Liverpool, West Derby)
I have been looking at this Clause and I am a bit worried about subsections (6) and (7) which give the rule-making powers. Subsection (6) gives the Lord Chancellor or the Chancellor of the Duchy the power to make exceptions for various areas where that is necessary. That, I think, would require fresh consideration. I am not quite clear what is aimed at by the provisions in subsection (7) for a different designation. I have found it quite difficult to imagine what is intended by a different designation in the supplemental list, and if the right hon. and learned Gentleman would clear up that point, it would help us.
§ The Attorney-General
I am not sure that I am able to answer that particular point off hand, but I shall certainly consider it. I will communicate what the answer is to the right hon. and learned Gentleman. I am not quite sure what precisely is in view in a separate designation, but it is only a question of description or title; it is not a case of moving magistrates who have not been moved to the supplemental list to some other list. It only applies to those who can be put on the supplemental list, and at the highest it seems that the list can be given some different name. There is no great significance in that. I understand it relates only to London.
There is a further point which will commend itself at any rate to hon. and learned Gentlemen in this House. It is contrary at any rate to the practice in regard to this matter of administration of courts of justices of the peace to give Parliament, dealing with the matter on 1758 political grounds as we have to do, the power concerning the organisation of the court to override the rule-making authority in regard to matters which are purely machinery. That would be a novel precedent to introduce. It has not hitherto in this matter been felt necessary to introduce that precedent, and I ask the Committee to conclude that there are no grounds in this case for altering the existing law about the matter.
§ Mr. J. Hudson
Before my right hon. and learned Friend sits down can he give me an answer on one point? I am willing to be reassured by him, but I am still in doubt—I really have read the Clause although he assumed that I had not—about Clause 4 (4, ii), which lays down that a person may have rules made for him by the Lord Chancellor for entering his name in the supplemental list on the ground thatthat person declines or neglects to take a proper part in the exercise of those functions.If I am sure that the Lord Chancellor will not regard the taking of a pledge by a Rechabite as a sign of his neglect to take a proper part in the exercise of the functions of the court, I am covered, but I should like to hear the Attorney-General say, that there is no likelihood of such an eventuality.
§ The Attorney-General
I venture to think that that will depend on who is holding the office of Lord Chancellor. I am quite sure that so long as the office is held by a member of the party now on this side of the House we might feel quite confident about it. [HON. MEMBERS: "Oh."] I must not joke: I am quite sure that whoever holds the office of Lord Chancellor, irrespective of party, will administer the powers which are given to him in this matter not by rules—that is the point I sought to make—but within the body of the Bill itself and in a judicial manner. The exact limits of the powers which are given by the Bill are not laid down. The matter is very largely at the discretion of the Lord Chancellor and he certainly cannot either enlarge or restrict his discretion by the making of rules. The Amendment which we are discussing does not really enter into the matter.
Now that I am on my feet I am able to answer the right hon. and learned Gentleman opposite on the point that he raised relating to subsection (7). It is like 1759 the rest of the Clauses, a re-enactment of the Act in which—I am not sure whether the right hon. and learned Gentleman was a Law Officer of the Crown at that time—our distinguished predecessors took a part. It covers apparently the county of London where, in the commission, the schedule of the names of the justices is drawn up in such a way as to distinguish those who would be on the supplemental list, if such a list were kept for the county. In fact, no such list has been compiled. The system in the county of London appears to work satisfactorily, and it was felt, as it was felt in 1941, that there was no reason to interfere with it.
§ Sir D. Maxwell Fyfe
I am grateful to the right hon. and learned Gentleman for reminding me of the last point, which had escaped my memory, in regard to subsection (7). I should like to say one word upon the general position of these rule-making powers and the control by Parliament. When on this side of the House we are convinced that it is merely a matter of machinery, of course we are prepared to allow the Parliamentary control to go, within the strict limits. We recognise, as the right hon. and learned Gentleman has said, that there may be provision for rules controlling the operation of courts which it is not desirable should be subject to Parliamentary discussion on a party basis.
The dividing line which appears to us a very serious matter is whether subjects are pure machinery or are legislation disguised as machinery. When we get a Clause whose whole basis is rulemaking powers under a considerable number of subsections, then we are right to look at the matter very carefully and to get the most complete assurances that they cover merely matters of machinery. In his second speech the right hon. and learned Gentleman did that, and he has satisfied me, although I do not seek to make up anyone else's mind about it. I ask him in these matters to consider the feeling, which is very strong in the House irrespective of party, that we should not abdicate our rights in anything that amounts to legislation.
§ Mr. Scollan
Perhaps I might point out to the Attorney-General that although this may be a matter of pure machinery, everybody with experience of the long-drawn-out struggle between the temper- 1760 ance and the trade factions in Scotland—more acute in Scotland than ever it has been on this side of the Border—will know the difference with which people north of the Border are prepared to accept even this safeguard that the matter is only one of machinery.
Attention has already been drawn to lines 16 and 17 on page 4. where it refers to the person whodeclines or neglects to take a proper part in the exercise of those functions.On that very point, the trade, with all the money that the trade has behind it, has tried to influence the Lord Chancellor to exclude from these benches, which deal with matters pertaining to the trade, people with very definite temperance views. On the other hand, the faction on the other side claimed with equal justice that anyone who is in any way against the temperance movement was prejudiced and should not fulfil functions in matters of licences.
The Attorney-General is not perhaps aware how this matter works out in Scotland and the prejudice and the feeling that are aroused. When an ordinary publican applies for a licence, the application comes before a magistrates' bench. If, in their wisdom or otherwise, the magistrates find that something untoward has happened in the carrying out by the publican of his duties, they may disqualify him for holding a licence. He may appeal, and the appeal goes to the J.P.s' court, an entirely different body, presided over by the senior justice. The J.P.'s court, due to the prejudice of the past against people who held very strong views, was loaded in favour of the trade and could get away with the most disgraceful cases in which licences should obviously never have been granted. There were the trade, the insurance companies—because of the amount of money involved, the licences were always insured—and the person himself behind the application, and the whole of the bench practically loaded in regard to the appeal. That sort of thing should be taken out of the hands of the Lord Chancellor and placed where it can be raised on the Floor of the House.
On these rules—up to the moment the Attorney-General has said nothing about the rules—the Attorney-General said that he had had an assurance from the Lord 1761 Chancellor's Department that the present rules would operate, with the exception of the little change that has been made in the Bill. That is not good enough. That kind of assurance does not remove the power and consequently it is absolutely useless. Power must always be retained in this House to challenge any rule made by anybody—many hon. Members on this side of the Committee are getting a bit tired of this delegated legislation—and democratic power must always be retained here, even if the past record of the power is clean. The fact that a power has never been abused does not alter the principle. I hope that the Attorney-General will have another look at this.
§ The Attorney-General
I know that it is my fault in that I failed to make this matter sufficiently clear the first or second time that I addressed the Committee. I shall try to make it a little clearer the third time. Perhaps the third time I shall be lucky. It really is not quite correct to say, as the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) did, that this is simply a rulemaking Clause and that that is why the attention of the Committee has been attracted to it. The real core and centre of the Clause is in subsections (1) and (4) which provides (a) that there may be a supplemental list, and (b) what people may be put on that list. The rest of the Clause is machinery to enable those provisions to be brought into effect.
If our discussion had taken place on the question, "That the Clause stand part of the Bill," I could well have understood it being said that it is undesirable that the Lord Chancellor should have these powers to transfer to the supplemental list people who by reason of "age or infirmity or other like cause" ought to cease to exercise judicial functions. While I could have understood that being said, I should disagree with it. However, this Amendment in regard to the rules has absolutely nothing to do with that problem.
I shall not allow myself, on this Amendment at all events, to be drawn into any discussion or argument about the position of magistrates who on the one side may be associated with the drink trade and who, if they are, are disqualified from sitting on applications 1762 dealing with licensing matters, or who, on the other side, may be convinced supporters of the temperance view and are not disqualified for that reason from sitting on applications dealing with licensing matters. That is a matter which does not arise on this Amendment and is entirely unaffected by the Clause—entirely unaffected by the Amendment, and, I think, entirely unaffected by the Clause. If we are to deal with the matter now on the basis of the Clause standing part—I hope we shall not have another Debate on it when that Question is put—I must advise the Committee that I see nothing in the two grounds on which alone the Lord Chancellor can transfer a magistrate from the active list to the supplemental list which would enable him to do it on the ground that the magistrate had a bias in regard to temperance matters one way or the other. The sole grounds on which he can do it is that the magistrate must be a person whoby reason of age or infirmity or other like; causeis incapable of exercising judicial functions, or, secondly—this is a different ground—that the person refuses or neglects to take a proper part in the discharge of his duties as a magistrate.
§ Mr. Scollan
May I ask exactly what the Attorney-General means byage or infirmity or other like cause"?What would "other like cause" consist of?
§ The Attorney-General
I do not think that any Lord Chancellor would be-likely to interpret the Clause in that way or that any court would construe the Clause in that way. "Age or infirmity" refers to physical conditions of a kind likely to incapacitate the magistrate from carrying on his duties.
§ The Attorney-General
I was about to say physical or mental conditions. We might have a mental condition which was not literally an infirmity unless we used the expression in a very broad sense. That is the kind of thing to be covered.
§ Sir I. Fraser
Can the right hon. and learned Gentleman assure us that there will be no definition of infirmity in the rules?
§ The Attorney-General
That is a discussion which we must pursue on some other occasion, but I certainly can assure the hon. Gentleman that nothing can be included in the rules enlarging, defining or restricting the meaning of those words in subsection (4) in regard to age or infirmity or the other grounds upon which magistrates may be transferred to the supplemental list. I have assured the Committee upon that three times before and I now assure the Committee for the fourth time. Nothing in this Clause can enable the Lord Chancellor to make rules which will in any way increase or diminish his power to transfer people to the supplemental list. That power is given to Parliament in this Bill; all that the Clause does is to provide machinery.
§ Mr. Marlowe
With regard to the second power to remove to the supplemental list, which includes the case of a justice neglecting to take a proper part in the exercise of his functions, can the right hon. and learned Gentleman tell me—I must confess that I have not looked this up—whether that is a new power or is it a power which was previously exercisable by the Lord Chancellor? Do the existing rules cover that power?
§ The Attorney-General
The rules do not cover the power. The rules cover the power of the Lord Chancellor to transfer persons to the supplemental list. They are pure machinery and do not provide the grounds on which a person may be transferred. I understand that it is a new power.
§ Mr. Boyd-Carpenter
The right hon. and learned Gentleman was quite right when he said that a good deal of this discussion was his own fault in that, the Committee being faced with a long and complex Clause involving rule-making powers set out at great length, he did not apparently regard it as part of his duty in the first place to explain the effect of it to the Committee. He has now, after a certain degree of persuasion, 1764 seen fit to do so. I share to a considerable extent the feelings of the hon. Member for West Renfrew (Mr. Scollan) that delegated legislation has gone far enough. In view of the subject matter which the Attorney-General now indicates will be contained in the rules, it is unnecessary to press the matter further, and in the circumstances I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause ordered to stand part of the Bill.
§ Clause 5 ordered to stand part of the Bill.