§ The Temporary Chairman
§ Mr. Marlowe
On a point of Order.
§ The Temporary Chairman
I have not selected the Amendment of the hon. and learned Gentleman, in page 17, line 46, after "he," to insert:has had reasonable practical experience in any of the capacities mentioned in paragraph (a) of subsection (3) of this section, or.However, it is suggested that there should be a general Debate on this and other proposed Amendments on this particular Clause.
§ Mr. Marlowe
I am much obliged, Mr. Burden. That will be satisfactory.
§ 7.45 p.m.
§ Mr. Corlett (York)
I beg to move, in page 18, line 19, to leave out paragraph (b), and to insert:'"(6) if he has served for not less than ten years as assistant to any such clerk and in the opinion of the magistrates' courts committee and of the Secretary of State there are special circumstances making the appointment a proper one.It will be noticed that the Amendment I am moving was Clause 15 of the original Bill when it was introduced in another place. So the Amendment is really drafted by the Secretary of State. It is the Department's baby, and I am rather puzzled as to why they have abandoned it. It seems reasonable to assume that the Department drafted that particular Clause with full knowledge of the realities of the situation and after very careful consideration. They must have known that only 32 out of the 90 full-time justices' clerks were professionally-qualified men, and they must have given very serious consideration to that position, because it is so remarkable. I think they must have wondered and must have investigated why it was that there was only 32 professionally-qualified men.
I should imagine that the explanations are simple. First, that possibly professionally-qualified men are not attracted to that particular type of post. I think it is quite reasonable to say that. I think the second, and perhaps even more important, reason would be that fully-qualified men—or many who did apply—were not considered adequately qualified by the magistrates who were making the appointments. If that were the position—and I am perfectly certain that the Department must have made themselves conversant with the position—I can quite understand their deciding to put down Clause 15 in the original Bill, because they would be satisfied it was impossible to get a sufficient number of professionally-qualified men to fill these posts.
They must also have known and must have inquired very carefully into, the position of the 58 statutorily qualified men who were acting as justices' clerks in the very big cities where they were being employed, and I am perfectly satisfied that if they made careful inquiries, as I am sure they did, they must have been informed that those men were completely 1969 capable and competent, and giving entirely satisfactory service to those who were employing them. Speaking as a magistrate, I should be very much amazed indeed if any magistrates were found who would say otherwise.
So they would have had all that evidence before them; and, having that evidence before them, they drafted the original Clause 15. If they had had evidence to the contrary, then they would have been provided with a golden opportunity for deciding that these men should not be eligible, and would presumably have drafted the present Clause 20. But they did not draft Clause 20 when they had all this evidence before them as to the positive qualifications of these men, but decided that these men should be eligible for these posts.
They also had every opportunity—and I do not doubt that they took it—for taking all the evidence against these men. They would consider all the evidence given before the Roche Committee, evidence which, we suppose, suggested that these statutorily qualified men should not be appointed to these posts. They would consider that evidence. They would consider very carefully all the recommendations of the Roche Committee that these men should not be so appointed. Then, having considered that evidence, as I am sure they carefully and thoroughly did, they still decided that these men should be eligible, and they drafted their Clause 15. Then, I assume, they would have had before them the representations of the Law Society, who would give evidence, probably in writing and orally, claiming that these men should not be eligible for these posts. And yet, having considered that evidence very carefully, they still drafted Clause 15 in their original Bill, which meant they were quite satisfied, after full consideration, that these men should be reckoned as eligible. So I am very puzzled, as, I think most magistrates are, as to why there should be a complete change from Clause 15 in the original Bill to this Clause 20, which is excluding these men from this employment.
On the Second Reading I sat throughout the Debate, I was privileged to take part in it, I listened to everybody who spoke, and I read the Debate carefully afterwards; I also read the report of the Debates in another place; and, quite 1970 frankly, I can find no evidence whatever that was produced which would justify the exclusion of these men.
The hon. and gallant Gentleman the Member for Petersfield (General Sir G. Jeffreys) suggested that magistrates and the public might not have full confidence in unqualified men. But these are qualified men. They are statutorily qualified, and I think it was a completely wrong term for the hon. and gallant Gentleman to use. If he feared that magistrates and the public might not have full confidence I must point out that there has been every opportunity for magistrates and the public to say they lacked confidence in these men; and yet I know of no evidence that anybody has put forward to that effect, and magistrates in the largest cities who have knowledge of the work of these men would pot hesitate, I am sure, to say that they do not lack confidence in them. Perhaps, the hon. and gallant Gentleman had evidence, which he was not prepared to reveal to the the House. The Attorney-General said of the 58 non-professional clerks thatSome are good, some not so good."—[OFFICIAL REPORT, 28th November, 1949; Vol. 470, c. 905.]After all, we might use the same phrase about Attorneys-General—though I do not think any of us would place in either of those categories the present Attorney-General.
§ The Attorney-General
In neither of them?
After the remarkable exhibition we had today at Question time I think we should put him in the "very good" or "excellent" class. I should have been very happy indeed had he found it possible to place some of these 58 in the "very good" or "excellent" class, because I am quite certain that some of them deserve to be placed there. However, he did very generously add that some of the best and most experienced of magistrates clerks had been unqualified men. We are very grateful for that. But having said that, he then went on to state the real reason for Clause 20, and said:the functions of the magistrates' courts are now becoming much more complex. Modern statutes and regulations are more technical and difficult to administer than they used to be."—[OFFICIAL REPORT, 28th November, 1949; Vol. 470, c. 905.]1971 Well, we all accept that, but surely it cuts both ways. If modern legislation is becoming so difficult and technical, it is becoming equally so for professionally-qualified men in private practice, and the more difficult they find this legislation to be the less time will they have to prepare themselves for the equally difficult legislation in magistrates' courts. I accept that it will be more difficult, but I cannot see how that will make it more possible for the ordinary qualified man to leave his private practice and devote himself to studying the equally difficult and technical legislation that we have to administer in magistrates' courts.
The Attorney-General then referred to the need that clerks should be qualified people. I must demur at that. I say again that these people are fully qualified; they are statutorily qualified. When the Attorney-General says that they must be qualified, I suppose what he really means is that they should be professionally qualified. I do not think all magistrates will accept that for a moment. I think most of us would say that many of these statutorily qualified clerks are infinitely better qualified than a merely professionally-qualified man. I do not think any magistrate will demur at that, because the ordinary magistrates' clerk and assistant clerk has had a wealth of experience in the work of the court; in that specialised and narrow field he is supremely capable and competent—infinitely more competent and capable than any ordinary practising solicitor who has had no experience whatever in that particular field. Therefore, on the merits of the case alone I urge my Amendment. I urge that the statutorily qualified man has as much right to consideration for these posts as the merely professionally-qualified man.
But I urge my Amendment also on the ground that in a few years' time this Clause will be impracticable. We well remember that the Lord Chancellor gave a special warning about that possibility. If we are to be limited in our recruitment to solicitors who are merely professionally-qualified men, we shall not have nearly sufficient capable recruits to administer this service, because not only will we be limited to solicitors, but we will be limited to an even narrower field; we will be limited to solicitors who 1972 must be between the ages of 30 and 50. Indeed, we are limited still further, in that they must have served apprenticeships to magistrates' clerks in magistrates' courts. Well, that limits the field enormously, and I cannot see any possibility of recruiting sufficient capable men in the future from that narrow field. I am afraid that if we find ourselves in that position we will feel compelled to recruit justices' clerks from solicitors who are in ordinary practice, and who will have very few real qualifications for assisting in a magistrates' court. Recruitment from that narrow field would be disastrous to the work of magistrates' courts.
At the moment we have a large and admirable field of choice. We have the professionally-qualified man, and we have this large field of the statutorily qualified man—an admirable field from which to make a choice. I am surprised that we have such a large field on the statutory side, because the service is completely unattractive. The conditions of service in regard to tenure, salary, sick pay regulations and office accommodation do not compare at all favourably with ordinary local government service, and I am very surprised that we have such a good recruiting field.
But, of course, many ambitious young fellows join the service because, in spite of its unattractiveness, they always have the hope that eventually they will become a justices' clerk, and with that open to them they enter the service in good numbers. The result is that places like Birmingham can have eight courts operating simultaneously, perhaps four or five days in the week, and it is thus possible for magistrates to deal adequately with cases. We all know that when we have a long list it is nice to divide it up and say, "We will have two, three or four courts, and we can give more time to the cases," knowing that we shall always have to advise us an experienced, competent clerk who knows what is expected from us. He can advise us in every possible respect, and we go into court quite contentedly, knowing that we can really administer justice.
If Clause 20 is passed, that will very soon not be possible. If we are compelled to take with us into court only a professionally-qualified man, we will find that he simply will not be there; there 1973 will not be sufficient men to do this type of work, and we shall not be able to get through the cases in a day, or even a week. Not only will there not be sufficient professionally-qualified men, but the other field of recruitment will have largely dried up. The profession will have become so unattractive that we shall have the greatest difficulty in securing a satisfactory type of individual to come in. The Home Secretary made that perfectly clear on Second Reading, when he said:There is no doubt that … this Clause will render the justices' clerks service much less attractive to the right type of man for the future."—[OFFICIAL REPORT, 28th November, 1949; Vol. 470, c. 810.]That is our whole case. That was the Lord Chancellor's case: that the service will be unattractive if it is to be a blind alley, and if the conditions remain as they are today. Therefore, it seems clear—and I am trying to say this without giving offence—that we are creating a closed shop for the legal profession, and even imperilling the efficiency of magistrates' courts by so doing. I feel that very strongly indeed, and I do not think we have any right to pass a Clause which will do it.
We are doing it with our eyes wide open, too. We have been warned that there is the possibility of a shortage of justices' clerks, and we have had a similar example in the past. We all remember that in 1927 there was set up a Departmental Committee to investigate the possibility of providing a register for ophthalmic opticians. The majority decision of that Departmental Committee was against setting up such a register, because the B.M.A. assured them that they would be able to provide sufficient medical men with ophthalmic qualifications to meet the need. Well, we all know that they have done no such thing. Neither will the Law Society be able, in a few years' time, to provide a sufficient supply of professionally-qualified men for these posts. But in the case of the ophthalmic opticians the alternative supply was not dried up. Very wisely recruitment on a sound basis was continued, so that today we have an alternative supply, with a sufficient number of ophthalmic opticians.
If Clause 20 is passed we shall not have sufficient professionally-qualified men for the magistrates' courts, nor shall 1974 we have an alternative supply, and the courts will suffer. I therefore hope that Clause 20 will not be passed. If it is, we shall be treating very harshly a competent and able body of men who have done their job, and done it well, within that narrow specialised field. They deserve better of us, and we should not sacrifice them merely to make—and again I use the phrase—a closed shop for a profession which cannot possibly deliver the goods.
§ 8.0 p.m.
§ Mr. Wilkes (Newcastle-upon-Tyne, Central)
Does the hon. Gentleman think it is a very satisfactory position when, let us say, two solicitors or two barristers have been arguing a point of law about a new Act, as to where the burden of proof lies or some other aspect of that legislation, that the matter should then be left in the hands of a man entirely unqualified and without training in the law?
§ Mr. Corlett
That is a common experience. I was presiding over my own bench only on Monday when I was faced with that position. I am perfectly certain that the two solicitors arguing the case were quite prepared to accept the advice of the learned clerk.
§ Mr. Marlowe
There is a series of Amendments on the Order Paper in my name which have not been selected, and which it may be convenient to discuss at the same time as this Amendment, since their object is very much the same as that of the Amendment which the hon. Gentleman has just moved. It really comes to a clear issue of whether we are in favour of clerks with professional qualifications or of continuing the present system of permitting unqualified clerks.
I want to address myself to that problem, making it quite clear at the outset that I support the maintenance of the present system of unqualified clerks. I think that it is necessary to go a little into the genesis of this matter in order to get a clear understanding of it. No one suggests that there has been any wide dissatisfaction with the present system, or that the proposed alteration in the law will give any greater satisfaction. Men with professional qualifications are just as liable to err as those without them, but the position when this 1975 Bill was originally introduced in another place was that professional qualification was not required. That was the position upon which the Government took their stand when they first introduced this Bill.
Subsequently something happened. I will tell the right hon. and learned Gentleman, in case he does not know, precisely what it was. It was that the Justices' Clerks Society had their annual conference at Bournemouth, and two noble Lords were invited to attend its annual dinner. The interest of the two noble Lords in this matter was aroused by those present, who had, of course, an interest in the matter, and it was in the nature of what the hon. Member for York (Mr. Corlett) has described as creating a closed shop. Curiously enough, an Amendment was moved in the House of Lords which achieved the result which the Justices' Clerks Society required. It seems to have been a very successful dinner which they had at Bournemouth on that occasion.
§ Mr. Scollan (Renfrew, Western)
Is the hon. and learned Gentleman implying that one can buy a couple of noble Lords for a dinner?
§ Mr. Marlowe
I am not making any adverse comment. We all know that there is a perfectly legitimate process of lobbying both in another place and in this House. Anyone can put forward an interest which they wish to be represented properly in Debate. I am not making any point about that. I am only trying to get the genesis of this thing and put it in its proper perspective.
The introduction of the original Bill followed the Roche Report, and I think that it is important to remember that the Roche Report, in paragraph 79, advocated the grouping together of commissions of the peace for the purpose of getting whole-time clerks, and it was against that background that any recommendation of the Roche Committee with regard to qualification was made. But that basis has gone, because the Bill does not attempt to adopt that recommendation of the Roche Committee. Therefore, anything further which the Roche Committee had to say about qualification becomes of considerably less value, except—and I will summarise the effect of paragraphs 174 to 177 of the Roche Committee's Report—that what is really 1976 required of a justices' clerk is experience. The report went on to say:The degree of experience and knowledge cannot be defined by Statute.I entirely agree, but that is precisely what the Government are trying to do. They are trying to define by Statute the degree of experience and knowledge that can be gained by passing an examination. I cannot accept that as the standard required. It is well to notice what is the examination. A justices' clerk has to give his time to administering criminal law. There are subsidiary offences, but the main part of his duty is administering criminal law, and I suppose that the two main essentials of knowledge required by him are knowledge of the criminal law and knowledge of evidence and procedure.
So far as evidence and procedure are concerned, there is no better school than experience and sitting in court. As to criminal law, which is the branch of the law in which he needs to be most versed, what is suggested by this Bill is not that he should learn criminal law, but that he should go in for an examination requiring him to learn conveyancing, the law of real property, the law of equity and accounts and other subjects required in the solicitors' examination. Of what use is a knowledge of conveyancing equity and real property law going to be to a justices' clerk? How can it be said that once he has passed an examination in conveyancing he becomes better qualified to administer criminal law or to assist the justices in administering it in a criminal court? I suggest that is an utterly false standard in relation to this particular case.
I would say, generally, that it is not always the man who passes examinations who is best at using worldly knowledge to the greatest advantage. It is through the experience that a man gains in court and through his having to deal with witnesses and to handle his bench and look after his daily routine that a man becomes best qualified to discharge the task of a justices' clerk. That will enable him to discharge his task far better than passing a hundred examinations in conveyancing or in any other subject.
To counter that point, some suggestion has been made that the Law Society should facilitate the qualification of solicitors. I cannot see that that is a helpful 1977 suggestion. All that it will do is to bring about a sort of devaluation of the solicitor's status. It is going to make an easier examination for solicitors without any guarantee that they will then use their knowledge for this particular purpose. It is a most unsatisfactory way of trying to arrive at a compromise.
If that procedure is adopted—and one does not know precisely of what it will consist—there would be nothing to prevent a man from taking a simplified solicitors' examination for the purpose of becoming a solicitor's clerk, but it would not be possible to compel him to become a solicitor's clerk, and he could say "I am now qualified" and go off and practise as a solicitor, although in fact he had passed only some kind of simplified solicitors' examination, and read a few books called "How to Become a Solicitor without Tears" or something like that. That is not at all a satisfactory way. It would be most undesirable that the high standard of the solicitors' examination should be debased in any way. It is very necessary to retain the high standard, and we ought not to meet this difficulty by introducing some devaluation of the examination.
Reference has been made to the figures given on Second Reading with regard to the number of qualified and unqualified clerks. I think the figures the Home Secretary gave related to 1938, or to some pre-war year. I have the latest figures, and the present position is that there are 124 whole-time clerks, of whom 73 are solicitors and 51 are not, which means that a little under half are unqualified. If we are to insist upon having a professionally-qualified man for this job, the sort of man we shall get is the man who has qualified and failed to make a success of his profession. That would be most undesirable.
Any really competent solicitor can make a good deal larger income in private practice than any justices' clerk can receive. I believe that the maximum amount received by a justices' clerk does not go beyond £1,500 a year. There may be one or two exceptions, but £1,500 a year would be a pretty good salary for a justices' clerk. It would be a poor solicitor who could not do a great deal better than that in private practice.
§ Mr. Keenan (Liverpool, Kirkdale)
Is it not a fact that some justices' clerks also carry on a private practice?
§ Mr. Marlowe
We are dealing here with whole-time clerks, who cannot carry on a private practice. As I was saying, any competent solicitor will make a much better living and will not be attracted to this vocation.
We must also consider the man who is coming into the profession as an assistant. What are the inducements for him to take up this career? I consider there are none. He will know that if he does not happen to be the kind of man who. can easily pass examinations, if he is a man who finds it difficult to qualify, he can never rise higher than first assistant clerk, with a maximum salary of between £500 and £800. That is not going to attract competent and able young men into this vocation. A man will know that if he comes into the profession as a junior assistant, anxious to learn the job of a justices' clerk, he will have to spend a large part of his time studying to pass his examinations, just at the time when he ought to be in his senior's office or sitting with his senior in the court to learn the job of being a justices' clerk. That is a most unsatisfactory state of affairs, and it is quite illogical.
There is no reason why a man should have particular qualifications unrelated to his job. We might as well say that a man should not keep a job unless he is a qualified "vet." The profession of justices' clerk is a specialised job calling for knowledge of the world, understanding of human nature and appreciation of the particular problems that arise in the court. These are qualities no man learns from books on conveyancing, equity or the laws relating to real property. The qualities of this profession can be learnt only by experience, and if the Clause is allowed to remain as it stands, that experience will not be gained and the vocation of justices' clerk will be so much the poorer.
§ 8.15 p.m.
§ The Attorney-General
I am not sure that I am prepared to agree with the last observation of the hon. and learned Member for Brighton (Mr. Marlowe), that the principal qualifications required in a justices' clerk are knowledge of human nature and experience of people. Surely these are the qualifications required in 1979 the magistrates, and when these qualifications are emphasised for this vocation we are giving to the justices' clerk a position of undue influence in the decisions of the magistrates on the merits of the case. That is not the function of the clerk at all. He is not there to advise the magistrates as to his views on the merits of the case because of his experience of human nature. His position is to remain silent while the magistrates are discussing broad problems and questions of that kind, and to advise them on technical questions of law, on which he is expected to have a specialised knowledge.
The justices' clerk is not the chairman of the bench. He is there as a technical officer to advise on technical matters, if the justices require his assistance. It is really quite wrong, and it puts the justices' clerk in an entirely erroneous position, to say that what he really needs is long experience of people and human nature, and a shrewd common sense on matters of that kind. These are qualities for the justices, not for the clerk. I do not say they are not desirable qualities for anyone to have. Qualified persons, especially lawyers, who are by no means deficient in common sense, having these qualities are all the better for it.
It has been pointed out that the Amendment restores the Bill to the condition in which it was originally introduced in another place, and my hon. Friend the Member for York (Mr. Corlett) is quite entitled to make, as he did make, a good deal of that point. I suppose it is true to say, however, that second thoughts are best. We gave further consideration to this matter, not because of any dinner that had been held by the Justices' Clerks Society, or by the Incorporated Society of Justices' Clerks Assistants, who I dare say did not neglect also to hold a dinner, but because there was a good deal of additional information made available, and after that further consideration we thought the proper course to take, in regard to this difficult and interesting problem of the unqualified clerks, was to deal with it in the way it now appears in the Clause.
The effect of the Clause is that while some, I suppose most, of the more experienced of the existing unqualified clerks will be retained—those who are in the service now and have been in the 1980 service over a certain period of time—the unqualified clerks will, so to speak, be a dying class. When the existing unqualified clerks have served their terms, we shall come to a period when only qualified men will be entitled to appointment.
The effect of the Amendment—and this is the real point of difference between my hon. Friend the Member for York and ourselves—is that he would perpetuate the unqualified clerk. We think that is wrong. The principle which ought to be accepted in this matter is that professional qualification ought to be the ultimate aim. If that is the ultimate aim, we have to have in the Bill some time-limit after which new entrants to the service as assistant justices' clerks will not be eligible for appointment as principal clerks merely by length of service as an assistant unless they have also professional qualifications.
§ Mr. Scollan
Would this not have a definite tendency to raise both the status and the salary, and make the legal profession draw very much more out of administering law than they do at present?
§ The Attorney-General
I do not think it would have that effect, but when we are considering the administration of justice and of proper justice between man and man, financial considerations should not be the dominant ones. Salaries will be under the control of the justices' clerks committee and under the supervision of the Secretary of State, and the rate for the job will no doubt be paid. My hon. Friend will agree that this question, which really is a question of importance and principle, ought not to be decided by reference to the salaries that might have to be paid to the clerks employed.
§ Mr. Scollan
It is an important point.
§ The Attorney-General
I venture to disagree with my hon. Friend. It is not really an important point in this context. The important point is to decide whether it is desirable in the interests of the administration of justice to have a qualified man. If that is desirable then the bench and the magistrates clerks' committee ought not to refrain from making the appointment even if at the end of the day it involves some additional expense.
§ Mr. Pannell (Leeds, West)
Perhaps the magistrates who yesterday were not deemed to be worth £1 a day, might now take a good view of the future valuation of the qualified clerk.
§ The Attorney-General
Cheap justice very often is bad justice. One ought to have regard to the question of principle not to the incidental result that it might possibly cause some additional expense. We have given a great deal of thought to this, and, of course, one of the main purposes of this Bill is to implement in principle the recommendations of the Roche Committee, which gave very prolonged and very careful consideration to the matter. I have—and I do not suppose the position has changed very much—practised myself a good deal in these courts both in the north and the south of England. It is impossible to under-estimate the growing importance of the magistrates' clerk in the administration of the justices' court.
My hon. Friend the Member for York referred to what I said about unqualified clerks. I do not recede from that or add to it. Some are good; some very good indeed, and under the Clause as it stands these very good clerks, who have had a prolonged period of experience, will be retained. They will be saved. On the other hand, some are not so good. I do not want to say anything further on that aspect of the matter which might seem to cast any general reflection on the unqualified clerks, who undoubtedly discharge their duties to the best of their ability. But as time goes on the work of the clerks in these courts is tending to become not only more varied, but also more difficult and more technical.
The truth is, of course—and I have often adverted to this fact—the law is becoming more and more complex and detailed owing to the methods of law making which we have. We add one statute to another, making minor amendments in the previous one with the result that in the end, in particular fields of law, one may have to look through as many as 40 statutes in order to ascertain what is the law about that particular matter. I have said that is a shocking state of affairs, and I think it is.
It is so also in regard to reported cases. The list of reported cases, to which a 1982 clerk may have to refer, is growing year by year, and year by year it will become necessary for the clerks, if faced by any problem of law, to look at more and more statutes and more and more cases until we are able to go much further than we have been able to go so far in the matter of consolidation of the statute law. And even after the consolidation and codification of the law these difficulties will inevitably go on increasing.
It is entirely unsatisfactory, where there are legal arguments conducted before the magistrates on an increasing scale—some of the modern cases under modern statutes are of great complexity and difficulty, and it is by no means always the case that those are heard before the stipendiary magistrate but are often heard by lay magistrates—which may go on for two days with quotations from many authorities and references to a number of statutes, that at the end of the day a decision may have to be given by an unqualified clerk, who has never previously had his attention drawn to the branch of the law which is under discussion.
I went into an office the other day, and I was shocked to see a book entitled "Law without Lawyers." It seemed to me a most unfortunate publication. In a court of law it is impossible to administer justice in that way. I am quite sure the Roche Committee, if I may say so with the utmost respect, were right when, as a result of their studies, they came to the conclusion that it was undesirable that unqualified clerks should go on. The figures which my hon. Friend gave in regard to the number of unqualified clerks rather suggested that the magistrates are themselves coming to the same conclusion, because I gather that the proportion of qualified clerks is now appreciably higher than the figures that were previously presented to the Committee.
The only other point—and it is a substantial point—that was raised by my hon. Friend the Member for York was in regard to the difficulty of recruitment. That is an important consideration and one which we have very much in mind. One of the ways in which it is hoped it will be met is by providing that unqualified men who become assistants to clerks will be able to take their articles with the qualified clerks and in the result, during the course of the time that they are acting as assistants and drawing their salaries, 1983 they will be able to study the law and in time gain their qualification and so become able in due course to succeed to the position of a full justices' clerk. That is something new and something which I think will provide a considerable attraction to this service. I do not think it is right to say—
§ Mr. Edward Porter (Warrington)
How will that be arranged? If a qualified solicitor is appointed, even if the parents of the youth are prepared to pay the annual fee, he has the sole right to decide whether he will teach the boy or give him articles.
§ 8.30 p.m.
§ The Attorney-General
I cannot help thinking that that is a matter which the magistrates' courts committee will have very largely in their hands when they appoint their clerk. They will be able to discuss with him the possibility of having his assistants articled to him. I should have thought that it is by no means the case that qualified clerks would refuse to take the assistant into articles or would demand any excessive fee for it. That is a matter which ought to be capable of settlement by adjustment between the qualified clerk and the magistrates' courts committee.
§ Mr. Marlowe
Surely the question of articles cannot be dealt with where the present clerk is unqualified, for such a clerk cannot take an articled clerk? There is an impressive list of such instances. Practically all the big towns have unqualified clerks. There are Manchester, Leeds, Bradford, Hull, Doncaster, Preston, Halifax, Warrington, Macclesfield, Rotherham, Huddersfield, Barrow, Morecambe, Coventry, Salford, Burnley, and a vast number of others with which I will not weary the Committee. No assistant clerk could be articled to the justices' clerk in any of those big towns.
§ The Attorney-General
It means that for an interim period, but we were looking at the matter from the long-term point of view and I was saying that from a long-term point of view I think the possibility of being articled and at the same time drawing a salary as assistant clerk will be a very strong factor in recruiting new members to this occupation. So far as the interim period is 1984 concerned, we have protected the situation by enabling the existing unqualified clerks with a certain period of service behind them to carry on. By the time that they go—I said that they will be a dying class—the new assistants who have taken their articles with justices' clerks will be coming in. I am by no means of the view that the position is likely to arise where the only candidates for appointment as justices' clerks will be solicitors who have failed. One has to recognise nowadays—whether it is a good or a bad thing there may be a difference of opinion—that a position with the security of tenure that this position will have with a salary and with a pension at the end of the day has great attractions. I think that that kind of appointment coupled with the possibility of taking articles and drawing a salary at the same time is likely in the long run to bring suitable entrants to this very important work.
I hope that I have dealt with the various points which have been raised by my hon. Friends and by the hon. and learned Gentleman the Member for Daventry (Mr. Manningham-Buller). I assure the Committee that we really have given the most careful thought to this, not allowing ourselves to be influenced too much by the circumstances of the moment but regarding ourselves as planning for the future on a fairly long-term view and convinced that, on that view, it really is important that this officer of the justices who is there to advise them as to the law should be properly qualified in those matters in regard to which he is called upon to advise.
§ Mr. Proctor (Eccles)
I take it that the intention of the Government is to allow assistant clerks who have practically five years' experience to continue to be eligible for appointment as clerks. Will my right hon. and learned Friend look at Clause 20 wherein it seems that an assistant clerk is allowed to apply but will never get the job because he has to convince the magistrates and the Secretary of State that special circumstances exist? What special circumstances could there be?
§ The Attorney-General
That leaves it to the discretion of the magistrates and the Secretary of State. I suppose one kind of special circumstances would be 1985 that he was a person possessing not only long experience but demonstrating a particular ability in the discharge of his duties. Another consideration might be a shortage of qualified applicants for the appointment in that area. However, special aptitude would, I think, be a consideration that the magistrates and the Secretary of State could have regard to within the meaning of this Clause.
§ Mr. Manningham-Buller
We have all listened to what the right hon. and learned Gentleman has said upon this difficult question, difficult because we all have considerable sympathy with the unqualified clerks, so many of whom have been doing their jobs extremely well, as we know in the bigger cities. However, my view is that the Attorney-General has come to the right conclusion. We cannot have the position where the tribunal and the court relies for its advice as to the law upon someone who is not qualified in the law. After all, if one goes to a doctor one expects a certain standard of competence. One advantage of this legal qualification is that it ought to ensure, and usually does, a minimum standard. Therefore, it is right to aim at that.
It is interesting to note that the Roche Committee were by no means uncertain in their recommendation on this point. They said:Our first recommendation must be the legal qualification of the clerk and we have come to the conclusion after careful deliberation, that nothing but a professional qualification will fully meet the circumstances. A clerkship to justices is a public office. It has become an accepted principle in the public service that appointments requiring specialised knowledge—whether it be in engineering, medicine, architecture or law—should be filled by persons who have the appropriate professional qualification which ensures not only a standard of competence, but also the status and discipline of an organised body.Those words set out the position, and the conclusion to which this Committee should come. Indeed, I do not think we ought to have any hesitation in coming to that conclusion provided—and it is an important proviso—that a sufficient opportunity exists for the unqualified justices' clerk to become qualified. If that exists, if the door is open wide enough to let in the experienced justices' clerk, I shall vote in support of this Amendment with the utmost confidence if it is pressed to a Division.
1986 That is the point to which I have been paying some attention, whether the facilities are sufficient to enable the unqualified clerk to become qualified. In my opinion they are. There is an interval of 10 years, and I understand that at the request of Lord Roche the Law Society in 1939 prepared a scheme for the special examination of justices' clerks to facilitate their entry into the legal profession. In fact, a great number of assistants have already taken advantage of that provision. That is a good thing, and in view of that, and the reaction of the Law Society to the proposal of Lord Roche, one need not fear that the people who want to become qualified will find it impossible to do so.
The question has been raised, to whom can the unqualified assistant of the unqualified clerk be articled? I do not feel that that is really an insurmountable objection. Steps have been taken, I understand, by the Law Society to enable articles to be served to the deputy clerk when he is a solicitor. I am sure that, if necessary, steps can be taken to provide for those exceptional cases. I feel on careful consideration of this difficult problem that the Committee are right to aim at the imposition of a professional status for justices' clerks and I hope, therefore, that the Government will adhere to their decision.
§ Mr. Norman Smith (Nottingham, South)
The last two speeches to which the Committee have listened prove that we who are sponsoring the Amendment have our opponents well and truly on the run. The hon. and learned Member for Daventry (Mr. Manningham-Buller) had to fall back, I thought rather pontifically, on the ponderous announcement that, after all, the Roche Committee had recommended what they did recommend, and by implication suggested that the Committee ought to accept that. Not at all. A majority of the Roche Committee were qualified lawyers and, therefore, in their recommendations they were merely acting as judges in their own cause. The greatest weakness, however, of the hon. and learned Member for Daventry, as, indeed, of my right hon. and learned Friend, was that they gave away their whole case by falling back upon this pitiable little bit of a bait, this infinitesimal concession, that, "We will arrange that the only boys who can do the job 1987 shall have facilities for becoming qualified." That gives the whole thing away.
The Attorney-General was in a cleft stick. He had ignored the most potent and devastating argument of the hon. and learned Member for Brighton (Mr. Marlowe) that if these appointments, which have a full-time salary, are to be reserved for qualified lawyers, then we shall get only the worst of the solicitors—those who cannot do any good in anything else. I know what I am talking about in this, Mr. Bowles, because it so happens that of my father's six children the only one who became a qualified solicitor has in the last 20 or 30 years made more income than the remaining five of us put together have done. It is perfectly obvious that full-time appointments as justices' clerks at a salary—I apologise for repeating the argument of the hon. and learned Member for Brighton, but the Attorney-General ignored that argument, which was devastating; that is why I repeat it—will not and cannot attract men of the calibre of that particular member of the Smith family who happens to be a solicitor.
Another argument which was advanced by my hon. Friend the Member for York (Mr. Corlett), in a very cogent and, I thought, wholly admirable speech, was completely ignored by the Attorney-General. It was this: my hon. Friend referred to simultaneous courts. In my constituency of Nottingham there are two courts sitting each day. One is taken by the clerk and the other by his chief assistant, who is. personally known to me. It has sometimes happened that the clerk, being only human, has fallen ill, and the chief assistant has carried on for eight or nine weeks. If he can do that without a chief assistant, what is the use of arguing that he is not competent to fulfil the office of clerk? Indeed, the Attorney-General did not argue any such thing. He admitted that these assistants were the people who knew the job best and could do it best.
The right hon. and learned Gentleman said, "We have given much thought to this." But what was the use of his telling the Committee that, when earlier he had said that the Government had been moved by second thoughts? I should like 1988 to know from my right hon. and learned Friend if, when he said that much thought had been given to this, the "much thought" had been given originally in drafting the Bill, as it first left the draftsmen's office, or after the dinner to which the hon. and learned Member for Brighton referred.
To me, who am not a solicitor, or lawyer, and never go to courts, except occasionally in the capacity of defendant, the whole thing appears—as it must appear to hon. Members of the Committee in the light of the pontifical utterance of the hon. and learned Member for Daventry about the Roche Committee laying down the law on Mount Sinai or somewhere else—to me the whole thing looks like a rather human, but slightly sordid attempt by the Law Society to get a closed shop.
Why is it that these solicitors want to take away this little plum from a very worthy section of the community, these assistants? They are not numerous, I know; and socially, I suppose, they are a little obscure. They do not command battalions of votes, but they are respectable people in the literal meaning of that much misused adjective, in that by their work they have earned the respect of the community and they have been doing it over many years before I was alive. It was a Conservative Government, the Earl of Beaconsfield's last Administration, which put them on a statutory basis, but they had been doing the work before that.
I have some feeling in this case because it used to be said of my father, who was a solicitor's managing clerk, that he was the brains of the firm. I know that within a year of his demise the firm amalgamated with a rival firm of solicitors in the same street, and I argue in that case post hoc, ergo propter hoc. If this Clause is allowed to stand as it is, what will happen is that the highest posts the magisterial service can offer to men who have given to that service their youth and middle age will be quite subordinate posts. The Attorney-General betrayed the most painful awareness that, as a result, we are not going to attract the right type of young people into this service.
I do not know if the Home Secretary is to reply to this discussion, but, as he told the Committee yesterday, he has a Nonconformist conscience. The whole 1989 thing suggests to me the First Book of Kings, in which there was a tragedy, and that tragedy is being re-enacted here with the justice's clerk in the rôle of Naboth, the Law Society in the rô1e of Ahab and, I am rather afraid, the Home Secretary in the rôle of Jezebel. I ask the Committee to stand firm against the Government in this. We do not want to divide the Committee, but I ask them to stand firm.
My interest arose in this manner: three or four of these assistants came to me in Nottingham. Not one voted in my constituency and what their political allegiance is, or was, I do not know—I should imagine it was certainly not Labour. They satisfied me, first, that they had a good case, and, secondly, that they were politically helpless. I think that here the House of Commons in this Committee can rise to its best tradition. Let us show by what we do now that we are motivated by other considerations than big battalions of votes, and do justice to these forgotten men
§ Miss Colman (Tynemouth)
I feel that the Attorney-General did not reply tonight to the arguments of my hon. Friend the Member for York (Mr. Corlett) any more than he did when he spoke on the Second Reading of this Bill, except with regard to the possible shortage of the supply of clerks. During the Second Reading Debate, the Home Secretary appeared to me, reading his speech, to be doubtful about the wisdom and practicability of the Clause, and I cannot see that the reply of the Attorney-General tonight has proved that the Clause is either wise, or practicable.
In the Second Reading Debate the Home Secretary referred to the fact that the Clause would render the justices' clerks service much less attractive to the right type of man for the future. He went on:On the other hand, there must be balanced against this consideration the positive recommendation of the Roche Committee that eventually these appointments should be limited to professionally qualified men, …He then said of the Clause as it now stands in the Bill that it:strikes a fair balance between these considerations. …It does not; it means that no one who has become an assistant since 1945 has any hope of being promoted to the posi- 1990 tion of clerk unless he qualifies as a solicitor. That is perfectly clear.
That raises the question of the cost of qualification as a solicitor. I am not now speaking of assistant clerks who become clerks and who are articled to clerks but about the young man or woman who chooses the law as a profession and enters it from school. I am informed the normal cost of qualification as a solicitor includes an outlay of £100 to £400 for the premium, examination fees, etc., and on top of that he or she has to live for four to six years either on no pay at all or on a very small salary. That means that the cost is prohibitive in the case of sons and daughters of people without large incomes. Thus this Clause as it stands closes the profession of clerk to anybody who is not able to bear the cost of qualifying as a solicitor unless he had become assistant to a justices' clerk before 1945.
The problem of supply was raised by my hon. Friend the Member for York. The Attorney-General referred to it but he did not seem to me really to deal with it. The Home Secretary referred to that aspect in his Second Reading speech, when he said:There is, therefore, a serious risk that if a requirement of professional qualification were universally applied upon the Bill coming into force it would not be possible to fill all the vacancies for whole-time clerks which may arise."—[OFFICIAL REPORT, 28th November, 1949; Vol. 470, c. 810–811.]I believe that that danger remains, that the Clause does not avoid it, because the source of recruitment for clerks will be limited to solicitors, who may still be unwilling to become clerks even though they have become qualified by being articled to clerks as assistants, and to the pre-1945 assistants who are considered to be eligible. The number of those is not large, so that it does not appear to me, and I am sure that it does not appear to my hon. Friends, that this very real problem of a shortage of the supply of clerks if this Clause is passed has been dealt with.
In addition, one has to recognise the real danger of a shortage of assistant clerks, because, as the Home Secretary said, the occupation will become much less attractive. The only other point I wish to make is that in the making of a good clerk experience is, as has already been 1991 said, of great importance. Many solicitors have not that experience. They may know the law, but they have not had experience of a court. This Amendment, if accepted, would provide an adequate safeguard against appointing the wrong person. The Government have already had first and second thoughts on this matter and I would ask them to have third thoughts, possibly on Report stage, and to accept the Amendment which my hon. Friends and I have put down.
§ The Attorney-General
We will, of course, give further consideration to this matter in the light of the strong views expressed by those hon. Members who have spoken on the Amendment. In saying that I must not be taken as holding out any promise that we shall be able on further consideration to give way. I do not want to mislead my hon. Friends into withdrawing their Amendment now in the hope that we have given any kind of definite undertaking about this matter. I am not in a position to give an undertaking about it, and we have attached great importance to this principle.
I thought I had dealt with the suggestion which was made that the effect of this provision in the Bill, if we pass it as it now stands, would result in only those who have failed in practice as solicitors seeking appointments as justices' clerks. I do not think that is true at all. I do not think that experience in other occupations where a similar kind of problem has arisen has shown that to be the case. In many walks of life, in commerce, in the Civil Service, in banking, solicitors are employed as legal advisers. I have had a lot to do with them and I should be very far from thinking that they are the failures of their profession.
Some people, for reasons which appear good to them, may prefer the comparative security of the more placid life of a salaried and pensioned, but important officer of justice to all the risks of the hurly-burly of competitive professional practice. It is by no means true to say that the people who prefer that other course are the failures in their profession. Very often they make their decision at an early stage. They think, perhaps for family or other reasons, that they would prefer that kind of occupation to going into the competitive practice in their pro- 1992 fession. I am quite sure it would be wholly wrong to say of the hundreds, I suppose thousands, of solicitors who occupy salaried appointments that they are failures in the legal profession. That really is completely untrue.
It was said, quite truly, that unqualified clerks do sit, and will continue to sit and take courts in those towns in which more than one court is sitting at the same time. In Liverpool, and in Manchester—in both of which places I had a lot of experience—that was the case. But what is done in those circumstances so far as my experience goes, is that by consultation between the stipendiary magistrates, whom one generally finds in these large provincial centres, and the qualified clerk, arrangements were made to ensure that cases likely to involve legal problems were taken either by the stipendiary, sitting with an unqualified clerk, or by the lay justices, sitting with a qualified clerk. A really difficult case, by which I mean a case involving points of law, is taken in a court where there is somebody with legal qualifications.
I admit it sometimes happens that the qualified clerk is away ill and the unqualified clerk has to sit and take the court. That may happen in the best ordered courts, but that does not prove that the system works completely satisfactorily. We think that is an undesirable situation to arise and that we ought to minimise it as far as may be. My hon. Friend the Member for Tynemouth (Miss Colman) raised the question of the eligibility of those who have joined the service since 1945, expecting perhaps that they would be entitled in the course of time to become appointed as full justices' clerks, who will under the Clause as at present drafted not be able to get the 10 years' qualifying service by 1st January, 1945.
I will undertake—and I hope that this will be a concession which will at least meet the views of some members of the Committee—to consider putting down an Amendment on Report stage so as to take account of war service on the part of those who joined this service as assistant clerks in 1945, or to extend the date by a year or perhaps two years so as to bring in a few more of the present assistant clerks. That, no doubt, will assist us the better to get over the 1993 interim period before we get a new flow of recruits from those who have been able to take their articles whilst acting as assistant clerks.
What I venture to think that in the end this Clause will do—and this is the long-term purpose of it—is to ensure very largely the advantages both of experience and of qualification, because the bulk of the recruits, I believe, will come from those who have gained experience as assistant clerks and have taken their articles with the qualified clerk to the justices whom they have been assisting. I can assure the Committee that we shall do all we possibly can to facilitate the making of arrangements whereby those who enter the service of justices' clerks are able to take their articles as cheaply as may be and become qualified whilst they are serving in the capacity of assistant. I hope that the Committee will feel that they may now adopt the Clause as it stands and that my hon. Friends will be prepared to withdraw their Amendment.
§ Miss Colman
I want to ask my right hon. and learned Friend a question. He said that the main source of supply of clerks will be from the assistant clerks who are articled to clerks and who will thus become qualified, but he did not meet the point made by the hon. and learned Member for Brighton (Mr. Marlowe) that many clerks are now not qualified and, therefore, assistant clerks cannot be articled to them. That means the source of supply is very much more limited than he suggested.
§ The Attorney-General
That is true only in a limited number of towns. That situation is a temporary one. Year by year the number of cases in which there is an unqualified clerk with no opportunity in that court of being articled to a qualified man will be diminished. The unqualified clerk is inevitably, under this Bill, a dying class. As each one goes, a qualified clerk will be appointed in his place and assistants will then have the opportunity of qualification. But it often happens in these large areas where the justices' clerk may be an unqualified man, that some of the assistants—the deputy-clerks, for instance—have already qualified and in that case unqualified assistants will be able to take their articles with them.
1994 I am prepared to cover this interim period as far as maybe—and the problem that the hon. Member for Tynemouth raised is an interim problem only; eventually it will disappear completely—by considering, as I have promised to do, an Amendment extending the period. I said I would consider one or two years. I do not want to make this a Dutch auction, but I will consider whether we cannot go a little further than that so as to ensure that those who joined the service in 1945 with the expectation that they might reach the top of it, will not be prejudiced by what has been done now.
§ Mr. Marlowe
When the right hon. and learned Gentleman began by saying that he would look at this matter again, I began to think that there was perhaps some hope that he would meet the point of view which has been expressed in favour of the unqualified clerk, but he has now made it clear that such looking at it as he will do is limited only to the question of the time of bringing it into operation, or was related to the possibility of arranging some special facilities in regard to the examination on account of war service. That does not go any length to meet my objection to the principle to which the right hon. and learned Gentleman adhered when he insisted upon universal qualifications before one could become a justices' clerk. The right hon. and learned Gentleman said that he was trying to get both experience and qualifications together, but that is only a hope. As the Bill stands, no experience of any kind is required of a solicitor who has been qualified for five years as a solicitor, and he is immediately qualified to become a justices' clerk without any kind of experience in a justices' court.
I take this opportunity of putting forward this further weight into the scale. Under Clause 19 (8) of this Bill as it now stands, no justices' clerk can be appointed without the approval of the Home Secretary. Therefore, there is a safeguard there, and I should have thought it was ample. The Home Secretary approves the appointment after consultation, of course, with those who advised the appointment, because, first of all, the appointment has to come from the magistrates courts' committee which makes the first selection and sends the name to the Secretary of State, together 1995 with the qualifications and experience of the proposed nominee. I should have thought that that was an ample safeguard to ensure that only properly fitted persons were appointed to these offices. I cannot see that the right hon. and learned Gentleman has made, nor that he could indeed make, anything of the point about facilities for passing examinations other than that to which he referred about war service. I do not think it is desirable to debase the value of the solicitor's examination, but nothing in this Bill can ensure that any such facilities are given.
If the right hon. and learned Gentleman and his right hon. Friend want to make a compromise on this matter, it might be satisfactory if there was instituted, instead of this solicitor's qualifications and justices' clerk's examinations, some proposal for a man to qualify as a justices' clerk by a suitable examination. Personally, I should regard that as satisfactory. One of my principal objections was that, whereas justices' clerks require mostly to be proficient in the criminal law, they have to spend a large part of their time in gaining the necessary experience in learning conveyancing and the law of real property in order to qualify. That seems to me to be taking their attention right off the qualifications which they really need, instead of the training being directed to that which would make them most proficient. If it were possible, instead of this Clause, to institute some qualifications for justices' clerk, I would regard that as satisfactory; there could be an examination in the appropriate subjects for justices' clerks.
§ Mr. Medland (Plymouth, Drake)
The Law Society?
§ Mr. Marlowe
I am sure the hon. Gentleman does not expect me to redraft the Clause while on my feet. It is a proposition which has only just occurred to me as satisfactory.
§ The Attorney-General
I am sure that, on reflection, the hon. and learned Gentleman will realise that it is not so.
§ Mr. Marlowe
It does seem to me that, on general principles, an examination might well be directed towards ensuring the possession of certain qualifications for the job that has to be done, and that that 1996 is preferable to an examination in subjects in which the justices' clerk will have no interest when he comes to carry out his duties. As the right hon. and learned Gentleman has not given any satisfactory assurance on this point, and as I feel that this is a matter about which there is a large body of opinion in the Committee which feels that the position of the unqualified clerk ought to be secured, I hope that those who are interested in this matter will divide on the Amendment now before the Committee.
§ Mr. Corlett
In view of the fact that my right hon. and learned Friend has agreed to consider the whole matter, but has held out no hope that he will accept the Amendment, my hon. Friends and I reserve the right to divide the House on the Report stage, but at the moment I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause ordered to stand part of the Bill.