HC Deb 07 December 1949 vol 470 cc2004-11
Mr. Manningham-Buller

I beg to move, in page 31, line 16, to leave out subsection (2).

This Clause introduces an Amendment of the Metropolitan Police Courts Act, 1839, an Amendment which I consider to be of a rather serious nature. Under the existing law it is not possible to appoint anyone to be a stipendiary magistrate within the Metropolitan area unless that person has practised as a barrister during the seven years immediately preceding his appointment. That is a very desirable provision because it ensures that the person appointed as a stipendiary magistrate in London has some practical knowledge and experience of the courts. of this country. The effect of subsection (2) is to dispense with that requirement, and it seems to me that in future under subsection (2) it will only be necessary for someone to be called to the Bar and wait seven years while earning his income in some other capacity, perhaps as a civil servant, and then at the expiry of that seven years, without any practical experience of the administration of justice and without seeing how it works in the police courts, he will be eligible for appointment as a stipendiary magistrate.

I dare say that thoughts will spring to the minds of some hon. Members of an appointment which was made some time ago and which caused a certain amount of discussion. I am not raising this subject tonight with a view indirectly to bringing into the Debate any question relating to that case. That appointment was made under the law as it now is—without this alteration. The question I want the Committee to consider is whether it is right to make this alteration in subsection (2). I can quite well conceive that the introduction of subsection (2) might be regarded as a civil servants' charter. It is a very convenient subsection for anyone who is able while following another occupation to pass the examinations and to be called to the Bar. The subsection is contrary to the recommendations of the Royal Commission; I should like to ask the Attorney-General why the Government have departed from those recommendations. There was no suggestion by the Royal Commission that this should take place. The Commission recommended that the field for appointment of stipendiaries should be enlarged to include solicitors, but I have seen nothing dispensing with the requirement of seven years' practice as a barrister.

Thinking over the subsection, it has occurred to me that it may be intended to provide for the appointment as a stipendiary of someone who has been serving in a judicial capacity outside these Islands and who is now back in this country and is eligible for appointment. It may be that the subsection was intended to cover that kind of case, but the wording goes much too far. What one ought to insist on in any case is that to be eligible for appointment the person must have practised as a barrister for at least seven years, even if owing to the holding of an appointment overseas the practice was not immediately preceding the appointment. I hope the right hon. and learned Gentleman will say that he will give this further consideration before the Report stage.

The Attorney-General

The existing law on this matter is a most curious anomaly. In connection with no other legal appointment—recorder, county court judge, High Court judge, or whatever it may be—is there this requirement that there should have been continuous experience during the seven years immediately preceding the appointment. It seems quite wrong that that requirement should be insisted upon in the case of a stipendiary magistrate. Moreover, the Clause as it now stands merely provides, in the case of Metropolitan magistrates, for the same qualification as that which has existed under the present law ever since 1882 in the case of the stipendiaries appointed for courts outside the Metropolis. I do not think experience has shown that it has been either a useful or a satisfactory provision. It is inconvenient that in recruiting magistrates one should be limited to those who happen to have gained their experience for a continuous period of seven years immediately preceding the appointment.

The case that the hon. and learned Gentleman thought of, those who may have served abroad, is one of the cases, that would be covered by this subsection. Another kind of case—and there are a few of these—is where a member of the Bar or a solicitor has been in practice in this country, has been persuaded often as a matter of public duty to take up an appointment for a limited period, perhaps on the Control Commission in Germany, and then has come back again to practise in this country. There may be other exceptional cases. I think most of them will turn out to be exceptional cases where a person has had to withdraw from practice perhaps for family reasons to go abroad for a year or because he has been ill for a period. In cases of that kind, those people who, for quite good reasons, have not been in continuous practice during the seven years immediately preceding the appointment but who have had in all at least seven years standing at the Bar, will be eligible and qualified for appointment.

I will only add that it seems to me in the highest degree unlikely that the Lord Chancellor would recommend to His Majesty the appointment of a person who, although he has been called to the Bar or qualified as a solicitor for seven years, has had no practical experience. That is certainly not the purpose of bringing the law in regard to the appointment of stipendiary magistrates into line with that relating to county court judges and High Court judges. We think there is no reason for discriminating in this matter against the stipendiary, but I have no doubt at all that practical experience will be required.

Mr. Boyd-Carpenter

I have some sympathy with the reasons which the right hon. and learned Attorney-General has given for this Clause, but I think he will concede that it goes far beyond any necessity which those reasons have shown. It would be perfectly possible, if he so desired, to include in the qualifications some specific provision, such as judicial service abroad or service with the Control Commission, but he is providing that the only qualification for this appointment shall be first, call to the Bar and, secondly, the passing Of seven years during which the person appointed may have done something wholly out of line with legal practice.

The first point I want to make, therefore, is that the Clause does more than, according to the Attorney-General's argument, is necessary. Secondly, if there is any appointment in which actual practical experience of the rough and tumble of the courts is absolutely essential, it is that of a Metropolitan stipendiary magistrate. He requires to understand the ordinary workings of the criminal courts and the way in which people who practice in those courts think and conduct themselves. He needs to be in daily practical contact. In fact, this qualification has over a good many years worked perfectly satisfactorily. I do not think the Attorney-General will dispute that the Metropolitan stipendiary magistrates who have been appointed under successive Governments have given very general satisfaction; and I suggest that the qualification which has existed has had something to do with that fact.

It is a very easy argument for the Attorney-General to say, "But, of course, the Lord Chancellor would not appoint anybody who lacked any practical experience." If that is a valid argument at all, it is a valid argument for laying down no qualifications at all and leaving it entirely to the free direction of the Lord Chancellor. There may be something to be said for that, but that is not what is being done under the Clause. A qualification is being provided; Parliament is being asked to say what it thinks is an appropriate qualification. That being so, surely we cannot ride off on the easy argument that, "We provide an inadequate qualification and then trust to the Lord Chancellor to do what is right." We should either put the responsibility squarely on the Lord Chancellor by providing no qualification at all, or we should take the responsibility of providing what we regard as an adequate qualification.

It seems to me that to provide that someone who has been called to the Bar seven years ago and has had no practical experience of the courts since should be eligible for appointment to one of these difficult, arduous and vitally important posts, is entirely unsatisfactory.

Mr. Janner (Leicester, West)

I should like to reply to those who ask for the Amendment. I think they have overlooked one or two have rather important matters. First, they have overlooked the position of a solicitor who has had very many years' practice and who chooses to apply to be called to the Bar after one year's absence from the solicitors' branch of the profession. If we insist upon seven years' continuous practice beforehand at the Bar, that solicitor, no matter how experienced he might have been in the courts, would be excluded from becoming a stipendiary magistrate. He would be in a worse position than the solicitor of not less than seven years' standing who had been appointed a magistrate under subsection (1). That is one example of how the proposal now before us could not work in view of the introduction in the Bill of new opportunities for solicitors.

The second point I should like to make is that there are many people who have had extremely long experience in the administration of justice in the courts—for example, police officers and chief constables, who after their term of office become barristers. They have quite as good qualifications as many of the stipendiaries who now sit in judgment upon those who come before them in the Metropolitan area.

Some people would say that the stipulation of seven years' previous experience has sometimes not been altogether an unmixed blessing. Anyone who sat in some of the courts and heard what some of the stipendiary magistrates sometimes said would regard the seven years' experience as having been experience that was rather wasted and not helpful to them in the job they were undertaking. The important matter is that when a stipendiary magistrate is appointed, the qualifications and experience he has should be taken into consideration, and I assume they are taken into consideration. If he has been in practice for seven years, and is a barrister of seven years' standing, that should be quite sufficient to enable a proper choice to be made.

9.45 p.m.

The Attorney-General

If the object of the Amendment is, as the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) suggested, to ensure that those appointed should have practical experience of the magistrates' courts, it entirely fails in its purpose. Under the existing law in relation to the Metropolitan area, which the Amendment would restore, seven years' experience as a barrister at the Patent Bar or seven years as a conveyancing solicitor provides the necessary qualification for appointment, and one has under the existing law to rely upon the discretion of the officer of State who makes a recommendation to His Majesty about it.

It is impossible to provide by statute, and this Amendment does not seek to do it, that the seven years' experience in the period immediately preceding the appointment must be in the police court, and, in fact, the Amendment would entirely fail of its purpose. I do hope, in view of the late hour, that we shall be able to move from this Amendment and that the hon. and learned Member will accept the view that it is really illogical to insist upon a requirement for Metropolitan magistrates which is not expected in respect of those outside the Metropolis which has not been needed, apparently, in areas outside the Metropolis, and is not required in the case of the county court judge, the High Court judge, the Lord Justice in the Court of Appeal, or the Lord of Appeal in Ordinary.

Mr. Scollan

The more I listen to the discussion of this Bill, the more I am convinced that the lawyers who drew up the Bill not only want a closed shop, but actually are going to make provision for the halt, the blind, the lame and the incompetent at all times to get a job. Anyone with any knowledge of the ordinary magistrates' court where the stipendiary magistrate takes the great bulk of cases which would come before a lay magistrate, knows perfectly well that there is no lawyer, no matter how clever, who, unless he has had some experience in his seven years, would not be more dangerous than useful in that job. I do not think any justification can be found for including this provision after listening to the discussion on the need for experience which took place in regard to justices' clerks. The whole of the argument adduced on that occasion was that experience was the main essential, and here it is brought forward that experience is of no value, and that what counts is simply the imprimatur of having passed as a barrister and been called to the Bar. I do not think there is any justification for that.

Mr. Manningham-Buller

I am not sure whether I followed the speech of the hon. Member for Western Renfrew (Mr. Scollan) and if I followed it at all, that I understood it correctly, but it seemed to have little relation to the point under consideration. No doubt it will be considered with care by lawyers in Scotland.

I must say I am not wholly satisfied with what the right hon. and learned Gentleman has said. The metropolitan stipendiary magistrates have always held a high reputation, and it may be that this particular qualification has been useful. The right hon. and learned Gentleman has not really given much of a reason for its abolition. There is no suggestion, is there, that it has prevented good appointments from being made? Good appointments have been made. This new found passion for uniformity rather astonishes me, but I should be content if the right hon. and learned Gentleman would look at the wording of this Clause again because there is nothing in it which requires any person to have practised. It is only in the provisos in subsection (2) and (3) that there is any reference to practice. It really is making the Clause far too wide to say that a person shall be eligible for appointment if he is called to the Bar and waits for seven years. It may be someone who has done that and who holds a high position in the Civil Service. It may be that he is engaged in conducting or arranging prosecutions, but I do not think that that should be sufficient unless he has had seven years' practice as a barrister.

The hon. Member for West Leicester (Mr. Janner) thought that this provision was a remarkably good one because it enabled retired police officers to qualify as stipendiaries. I do not know how the idea would be welcomed in West Leicester, but I very much doubt whether it would be welcomed in the Metropolis. That was an argument in support of the right hon. and learned Gentleman which really showed the weakness of his argument. I should be content not to press this matter further if the Attorney-General would say that he will have another look at the wording. I do not think that it is right.

The Attorney-General

I am much obliged to the hon. and learned Member. We will certainly do that and look at the wording again. I can assure the Committee that my noble Friend attaches great importance to experience and practice.

Mr. Manningham-Buller

I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.

Clause 32 ordered to stand part of the Bill.