Clause 19. —(APPOINTMENT AND CONDITIONS OF SERVICE OF JUSTICES' CLERKS.) (Hansard, 7 December 1949)

§ Mr. Ede
I beg to move, in page 17, line 19, to leave out from "committee," to the end of line 20, and to insert: and to a county borough or county not divided into petty sessional divisions which is included in a joint committee area, as if it were a petty sessional division of a county.

§ Mr. Marlowe
On a point of Order. Do I gather, Mr. Burden, that you have not selected my Amendment in page 16, line 11, at end, insert: and may appoint a deputy-clerk to act in the absence of the justices' clerk. A magistrates' courts committee may authorise such deputy-clerk when acting in the absence of the justices^* clerk, to perform any of the functions and discharge any of the duties normally performed or discharged by the justices' clerk.

§ The Temporary Chairman
It has not not been selected.

§ Mr. Ede
The Amendment which I am moving is a drafting Amendment. By subsection (9) a magistrates' courts committee is required to consult the magistrates for any petty sessional division of a county on the appointment or removal of a justices' clerk for the division, and the Secretary of State is required, before approving the appointment or removal, to consider any representations made to him by the magistrates for the division, and also, before approving removal, any representations made to him by the clerk. As the Clause stands there is no similar provision where the committee is for a joint area and the appointment or removal of a justices' clerk of the county is in question. The Amendment makes the necessary provision to remedy this and also makes similar provision where one of the components of the joint committee area is a county not divided into petty sessional divisions.

§ Mr. Ede
I beg to move, in page 17, line 34, to leave out "justices' clerks," and to insert "clerks to licensing justices."
This, together with the next Amendment, is a drafting Amendment. In the first Amendment there is a nice refinement in the use of the English language. I hope the Committee will approve of these Amendments.

§ Mr. Marlowe
I shall detain the Committee for only a short time on this Clause. I had on the Paper an Amendment which was not selected, but as this Clause deals generally with the question of the appointment of a justices' clerk by the magistrates' courts committee, I should like to suggest to the right hon. Gentleman that he might consider something in the nature of the Amendment which I had on the Order Paper. It was intended entirely to be helpful.
A case was brought to my notice recently from the North of England. A justices' clerk was ill—I think he was in hospital—and some documents had to be signed within a time limit. I think there was a statutory obligation to provide certain figures and the justices' clerk, being in hospital, was unable to make the return. Some request was sent from the Home Office for the clerk to make the return which was required of him. His assistant signed the return with his name, for and on behalf of the justices' clerk in question, in order to make the return within the time limit. The Home Office sent it back to him saying that it was not good enough and that it must be signed by the justices' clerk. As the justices' clerk was still quite incapable of signing the document, being in hospital, the assistant clerk simply signed the justices' clerk's name, and I have no doubt that all went quite happily after that.
But it is not a very satisfactory position, and my Amendment tried to ensure that such a situation would not arise. It is one which can easily arise where a justices' clerk is absent for some good reason—illness, or his annual holiday, or something of that sort. Particularly where 1966 there are statutory functions to be performed, it seems desirable that there should be somebody on such an occasion qualified and permitted by law to take his place. I hope, therefore, that the right hon. Gentleman will consider this matter, and, if he thinks it a helpful suggestion, that he will introduce the provision at some other time.

§ Mr. Ede
I am obliged to the hon. and learned Gentleman for raising this issue. If he will let me have particulars of the case he gave to us, I will have it looked into.

§ Mr. Nield
This is an offence.

§ Mr. Ede
Well, I will treat it as having been shown to me in confidence. It may enable me to guard against causing somebody else to commit an offence. However, I am advised that really this provision is not necessary, and I hope that the magistrates' courts committees will see there is a properly appointed person so that we can deal with the kind of difficulty which the hon. and learned Gentleman mentioned. After all, if they are in a position to deal with the organisation of counties as a whole, it ought not to be impossible for them to see that certain persons are, for this kind of purpose, the locally authorised deputies of the clerks to the magistrates.

§ Mr. Marlowe
I believe that the difficulty arises from the fact that Statutes require something to be done by a magistrates' clerk and do not permit it to be done by somebody else. That is where the difficulty arises.

§ Mr. Ede
I do not want to prolong this discussion, but I am advised that Section 48 of the Summary Jurisdiction Act, 1879, provides that a person who acts as a clerk to a court of summary jurisdiction shall be deemed for the purposes of that Act to be a deputy of the salaried clerk, and can report to the salaried clerk what goes on in the absence of the salaried clerk. However, I will have the position very carefully examined. I am advised that, generally speaking, it ought to be possible under the new arrangements.

§ Mr. Bing
I want to say a word here on the desirability of what I think this Bill is helping to achieve. I hope my right hon. Friend will do all he can to 1967 see that, as far as possible, whole-time clerks are appointed. One of the greatest disadvantages of the magisterial system has been the conflict of loyalties that very often the magistrates' clerks feel. Let me give one example which was quoted as recently as 1946 at a conference of the Haldane Society about magistrates' clerks. In that case there was a clerk who was a solicitor having a large practice in a country town. He was clerk to the magistrates of the local court and—this is now, of course, impossible—of the adjoining district. He was the coroner; he was clerk to the district council; the chairman of the court of referees; the food executive officer; assistant registrar of the county court; secretary to the local Conservative Association; and, until a month before, also commanding officer of the local Home Guard.

§ Mr. Dodds-Parker (Banbury)
A very useful chap.

§ Mr. Bing
It was scarcely possible for anyone appearing at the court not to have come before him in some capacity of his at some time or another. Very often there is a feeling that the clerk to a court really dominates the court. In so far as we can appoint whole-time clerks we shall end this conflict of interests which the magistrates' clerks may now feel, and we should take all the steps we can to that end. It is one of the great reasons for welcoming this Bill that, by increasing the sizes of the areas, we shall make that a practical proposition.