HC Deb 07 December 1949 vol 470 cc2036-41
Mr. Marlowe

I beg to move, in page 53, line 13, after "county" to insert, "and the deputy-chairman."

This and the next three Amendments standing in the name of my hon. and learned Friend the Member for the City of Chester (Mr. Basil Nield) all go together. I understand he takes the view that, as the chairman is included here, and many quarter sessions have a person identifiable as a deputy-chairman—often a salaried deputy-chairman—it is advisable that he should be included in the capacity in which the chairman is included. There may be many occasions when the chairman is not able to be present and it may be desirable that the deputy-chairman should carry out his functions, but in paragraph (2) the deputy-chairman is not recognised, although he is recognised in respect of many other of his functions.

The Attorney-General

I am afraid we cannot accept the Amendment. It is a complete non sequitur to suggest that because the chairman should be a member of the magistrates' committee, therefore the deputy-chairman should be a member. In some areas there is also an assistant-chairman. The next suggestion would be perhaps that he should go on as well, in case the chairman and the deputy-chairman happened to be unavailable. It was decided in another place, as something of a concession, that the chairman should automatically go on, but to say that the deputy-chairman should go on as well is, we think, rather over-doing it and simply provides an additional member to fulfil a function which normally can be fulfilled by the chairman, who normally will be available to attend. I hope that the hon. and learned Member, who I think did not press the Amendment with any very great conviction as to its merits, will now be able to withdraw it.

Mr. Marlowe

I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Marlowe

I beg to move, in page 54, line 22, to leave out from "over," to the end of line 23, and to insert: unless the Secretary of State orders to the contrary in which event he shall, if required, state his reasons to the council of the non-county borough concerned. Perhaps, with this, we could discuss the next Amendment in my name, in line 29, to leave out from "county," to the end of line 30, and to insert: unless the Secretary of State orders to the contrary in which event he shall if required state his reasons to the chairman of any quarter sessions concerned. The Amendment standing on the Order Paper in front of these two Amendments, also in my name, has already been dealt with by the right hon. and learned Gentleman and I will not, therefore, pursue it. The position as it now stands requires clarification because under Clause 16 it appears that every non-county borough with the required population of 75,000 will get a magistrates* committee. That is the impression one gets, although I agree that it is permissive in the sense that the word "may" is used in this paragraph, whereas the word "shall" is used elsewhere. Of course, the idea that a non-county borough with a population of 75,000 will get a magistrates' committee is wholly illusory, for when we turn to this Schedule it appears that it is by no means a necessary consequence that it will have a committee merely because it has the required population. The Schedule reads that the committee will be appointed if, but only if, it is for the time being so directed by an order of the Secretary of State. I would prefer the emphasis to be the other way. My Amendment suggests that they should get their committee unless, for good reasons, the Home Secretary directs otherwise, and I have coupled with that the suggestion that in the event of the Home Secretary so doing he should state his reasons to the responsible person. The latter suggestion is not, perhaps, so important, but it seems to me that the emphasis in the Schedule should be that the committee will automatically follow on the attaining of a population of 75,000 unless there is good cause for the contrary. The Schedule does not give any guidance as to the grounds on which the Home Secretary shall withhold the committee; it is rather arbitrary. There is nothing to prevent the Home Secretary, if he feels like doing so, exercising the power in a purely arbitrary way and saying, "I just do not think I will give a committee to these people "; he need give no explanation for exercising the power in an arbitrary way. That is not a satisfactory position and I hope some Amendment will be made on the lines I have suggested.

The Attorney-General

The argument which the hon. and learned Member for Brighton (Mr. Marlowe) put forward that there was nothing to prevent the Home Secretary from exercising his functions under this Schedule in an arbitrary way is one which can often be put forward on a purely theoretical basis. Legally there is not, but the fact is that the Home Secretary, like other Ministers in whom discretionary powers are vested, is responsible to Parliament, and the assumption of constitutional practice is, I think, that where powers of this kind are vested in a Minister or Secretary of State he can be trusted to exercise the discretion given to him in a responsible way, in a way for which he is prepared to answer to Parliament, and not in an arbitrary way.

11.15 p.m.

I would have thought that it was not right to say that these rights should be given to boroughs automatically on their attaining the population figure of 75,000. There are a number of circumstances to be taken into account. In the case of a large borough regard would be had to the question whether the clerk was a whole-time clerk; to whether, even if it were a whole-time clerkship, two adjoining petty sessional divisions could be added to his duties because he was not fully occupied in the work of the borough.

In the case of the quarter sessions for a county, there would have to be consideration of whether the division was large enough to be saddled with matters like the scales of remuneration of the clerks and the staffs independently of the other divisions of the county: also, for instance, in counties like Lancashire, whether a magistrates' courts committee for the whole of the county would be, as it might well be in Lancashire, too large and unwieldy for efficient working. There are all sorts of considerations of that kind which it would be proper for the Home Secretary to take into account in the exercise of his functions under the Schedule.

I do not think the hon. and learned Gentleman had very much confidence in the second part of his Amendment, which suggested that if the Home Secretary refused to make an order he should state his reasons. That, I think, would be a very unreasonable thing, quite an unusual thing. In fact, I should think it would be an unprecedented thing where discretionary powers of this sort are vested in a Minister responsible to Parliament for the exercise of them. I hope that on reflection the hon. and learned Member will not wish to press the Amendment.

Mr. Marlowe

When the learned Attorney-General says that I pursued the latter part of the Amendment without confidence he is right. I was confident that it was a good Amendment, but I had no confidence that the right hon. and learned Gentleman would accept it. As to the earlier part of the Amendment, I accept the explanation which the right hon. and learned Gentleman has given, although I would have thought that in many respects it would have been desirable that the consideration which he says the Home Secretary will take into account should at least be indicated in the Bill. But I do not wish to pursue the matter further, because the Home Secretary did say, earlier, that he appreciated that there was a particular problem in relation to Hove, and that he would have to take that into consideration and would give the matter his thought.

I would like to emphasise to the Home Secretary that every one of the considerations which the right hon. and learned Gentleman gave as desirable criteria is applicable to Hove. That, I think, should keep him to his promise. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Marlowe

I beg to move, in page 55, line 12, after "a," to insert, "justices' clerk to act as."

The principle behind this Amendment is similar to that behind the one I moved in relation to Clause 26. I thought there was some justification for it, and the right hon. Gentleman said that it was not quite clear. The point which I have in mind, and which the Home Secretary will appreciate, is that usually the clerk of the peace is a person who acts as clerk to the county council. I want to ensure that the clerk of the magistrates' courts committee shall be a justices' clerk, and that we prevent his being the clerk of the county council. I do not want the clerk of the peace to be capable of being magistrates' courts committee clerk and county council clerk, because these two may, from time to time, come into conflict, particularly over matters of expenditure. There must be occasions when the magistrates' courts committee desires to recover expenditure from the county council. Then there would be the unfortunate position of the clerk of the peace acting as the clerk to the magistrates courts' committee and the clerk to the county council. I do not think it is desirable, and it might give rise to a conflict of interest. If the Amendment is accepted, I hope this difficulty will be obviated.

The Attorney-General

I appreciate the point which the hon. and learned Gentleman has in mind but I would have thought that the magistrates' courts committee, in considering the various candidates for the position, would also have it in mind. I should have thought it would have been one of the factors when deciding that a particular candidate is not suitable. There is some disagreement about this matter. The Society of Clerks of the Peace, without organising a dinner, have expressed the view that the clerk to the committee should be the clerk of the peace, and the Justices Clerks Society, also without organising a dinner, take the view that he should be a justices' clerk. We think that the matter should be left to the committee to decide who their clerk shall be. This was fully discussed in another place, and there the view taken was that it would be wrong to tie rigidly the hands of the committee in a matter of this kind, and we feel that this is the right view.

Mr. Marlowe

In view of the fact that it is impossible to carry this Amendment, I beg to ask leave to withdraw it.

Amendment, by leave, withdrawn.

Schedule agreed to.