HC Deb 13 December 1949 vol 470 cc2523-74

Order read for consideration, as amended.

Bill re-committed to a Committee of the Whole House in respect of the Amendments in Clause 16, page 13, line 32, and Schedule 4, page 56, line 22, standing on the Notice iPaper in the name of Mr. Ede,

Bill immediately considered in Committee.

[Major MILNER in the Chair]


The Secretary of State for the Home Department (Mr Ede)

I beg to move, in page 13, line 32, to leave out "seventy-five," and to insert "sixty-five."

This carries out an undertaking which I gave in Committee in response to a Debate originated by the hon. and learned Member for Brighton (Mr. Marlowe). It will bring into this category the non-county boroughs of Stockton, Newcastle-under-Lyme, Hove, Swindon and Chesterfield, all of which are above 65,000. The next borough below that figure has a population of over 57,000 so that there will be no point in dropping the figure to 60,000. I think it is desirable that these magistrates' courts committees which are to be established in these non-county boroughs should, as far as possible, have the assurance that they will get a full-time clerk. I think, therefore, that we should keep the figure as high as possible.

Mr. Marlowe (Brighton)

I should like to thank the right hon. Gentleman for meeting the request I made to him on this matter during the Committee stage. When I moved the Amendment which stood in my name on that occasion I was interested only in the non-county borough of Hove, and although the fact that one or two others have fortuitously fallen into the same group is a good thing for them, I must say that I was not in the least concerned in any other place except Hove, to which I referred on that occasion. As I then pointed out to the right hon. Gentleman, there was a particular problem in relation to Hove, especially having regard to the fact that although the borough has a population of 69,000 a population of 85,000 is catered for by the Hove court. In those circumstances I am grateful to the right hon. Gentleman for meeting me on that point. The right hon. Gentleman will appreciate that the freedom of the borough of Hove is not in my gift, but I will do my best for him.

Amendment agreed to.

Clause, as amended, ordered to stand part of the Bill.


Mr. Ede

I beg to move, in page 56, line 22, to leave out "seventy-five," and to insert "sixty-five." This is consequential.

Amendment agreed to.

Schedule, as amended, agreed to.

Bill reported, with Amendments; as amended (in Committee and on recommittal), considered.


  1. (1) The Secretary of State shall, in consultation with the Law Society set up a Justices' Clerks Examination Board.
  2. (2) The said board shall, in accordance with rules to be made by the Lord Chancellor, be responsible for holding examinations for the purpose of examining candidates desiring to qualify as justices' clerks.
  3. (3) Such rules shall require any candidate to satisfy the examiners as to his proficiency in such subjects as the Lord Chancellor shall determine are required to be known by a justices' clerk, including criminal law, evidence and procedure and general principles of law.
  4. (4) Notwithstanding anything contained in section twenty of this Act a person who has satisfied the examiners in such examination as aforesaid shall be eligible for appointment as a justices' clerk.—[Mr. Marlowe.]

Brought up, and read the First time.

Mr. Marlowe

I beg to move, "That the Clause be read a Second time."

I do not want to repeat at length the arguments which we considered very fully, I think, when this Bill was in the Committee stage.

Mr. Ede

On a point of Order. There is an Amendment in my name to Clause 20, which I regard as an alternative to the proposal which the hon. and learned Gentleman has put forward, and I do not know whether it would be for the convenience of the House for us to take both discussions together.

Mr. Deputy-Speaker (Major Milner)

I am in the hands of the House. I agree to that suggestion, if there is no objection.

Mr. Marlowe

I agree that the two proposals should be discussed together. The argument in favour of not having the ordinary solicitors' qualifications were canvassed extensively on the last occasion by hon. Members on both sides of the House. An Amendment was moved by the hon. Member for York (Mr. Corlett) dealing with the question of abandoning the solicitors' examination altogether. In that discussion it became apparent that the Government were not prepared to retreat fully from the standard required of qualifying as a solicitor or a barrister, and I am disappointed with the Amendment which the right hon. Gentleman has today suggested as a compromise.

The view which I now put forward is that if it is not possible to accept the idea that there should be no solicitors' qualification at all, then at least something on the lines I have suggested ought to be accepted as providing the necessary standard which a justices' clerk ought to possess. My main objection to the qualification under the solicitors' examination was that it involved the justices' clerk, or the assistant justices' clerk who is endeavouring to become a justices' clerk, in taking his mind and his training off the essential part of his task and compelled him to devote a considerable amount of his time to subjects which would have no interest to him whatever when he came to discharge his functions in court. As everyone knows, the solicitors' qualification requires an extensive knowledge of conveyancing and the law of property and those are not matters in which the clerk will have any interest when he comes to sit below the justices.

Mr. Turner-Samuels (Gloucester)

Under the Amendment which is to be proposed by the Home Secretary there will be no need for any other qualification than that of the law relating to the clerkship.

Mr. Marlowe

I do not think the hon. and learned Member understands the Amendment which the right hon. Gentleman has placed on the Order Paper. The new suggestion of the Home Secretary is that a justices' clerk needs to qualify as a solicitor in every respect other than that of service of articles. That is the suggestion which the right hon. Gentleman has made. I will deal with that proposal in a moment. I want to deal first with my own Amendment, which suggests an entirely different examination. I was pointing out that when we accept either standard—either that which we had before, that of qualifying fully as a solicitor, or the standard suggested in the Amendment on the Order Paper today—we shall still compel the candidate who is endeavouring to qualify as a justices' clerk to devote a large part of his time and his training to subjects which are not necessary for him in the efficient discharge of his duties.

Mr. Turner-Samuels

Such as?

Mr. Marlowe

As I said before, conveyancing and the law of property. I do not think justices' clerks need to know those subjects to carry out their job efficiently. They make the examinations extremely difficult, and a lot of people find it hard to pass. I do not know whether I am, perhaps, retaining some resentment from my youth against those examinations, but I know that I hated them both and that I found them extremely difficult, and it may be that I have not got rid of the hatred I had for them.

4.0 p.m.

I can sympathise with the younger men now who have to try to pass them, and I would save these men from the necessity of passing them. If they are required to pass those examinations it seems to me that they are required to devote a large part of their training to them at the expense of training for the job they ought to learn and the things they ought to know—that is, the principles of criminal law, the administration of courts, the rules of evidence and of procedure. Those are the matters which are most important to a justices' clerk. I am not suggesting that there are not other matters also that are important to him, but I would say that those were the ones in which it was most necessary to qualify.

Mr. Leslie Hale (Oldham)

Would the hon. and learned Gentleman allow me? As he knows, in the case of justices' clerks the essentials can be obtained in preparation for the preliminary examinations. The intermediate is really on the general principles of law, which are referred to in the new Clause. Has it occurred to the hon. and learned Gentleman that what he is proposing will do great harm to justices' clerks? It will mean that they will be trained only for the job of a justices' clerk, and will be limited to that extent, and that they will never have a chance of going into private practice if they want to.

Mr. Marlowe

I do not think those arguments are any good at all. We have accepted the principle that in certain circumstances men may continue to be justices' clerks though they are not qualified. I have forgotten the second suggestion the hon. Gentleman put forward.

Mr. Hale

They will not be able to practise.

Mr. Marlowe

If a man wants to go into private practice there is nothing to prevent him from taking the qualifying examination. I would not make it necessary for him to take that examination in training for the job of a justices' clerk. If he wants to do both, to be a solicitor and a justices' clerk, he can be trained as a solicitor, and I have no objection to his qualifying for both.

Mr. Hale

Would the hon. and learned Gentleman train people especially to be High Court judges, and so follow the line of his argument throughout?

Mr. Marlowe

I do not really think the hon. Gentleman is doing justice to my argument. I am not suggesting and have never suggested that this type of examination, of which I speak in my new Clause, would be suitable to persons occupying high judicial office. I have never suggested anything so far-fetched as that. I am dealing only with the question of justices' clerks. It is idle to argue that we must have men highly qualified in the law to be justices' clerks when we have admitted the principle of having unqualified men in the job. In practically all the big industrial towns, the most crowded areas, where the task of the justices' clerk is, probably, most important, because in those courts there are a vast number of cases and a varying programme of cases almost daily, so that the clerks have to switch their minds from one sort of subject to another in the course of only one sitting—there are men, it is admitted, who shall remain.

I agree that my argument would be considerably reduced in force if we accepted the principle that every clerk has to be qualified, but as things stand at the moment that will not be the case until 1960 and afterwards; there are 10 years, at least, before that even begins to be a reality. There are young men who have the ambition to become justices' clerks and who may be permitted to become so by showing themselves proficient in the task.

I confess I have no evidence for it, but one has the impression, when one views the number of justices' clerks who are unqualified at the present time, and views them against the background of the living which qualified men can make, that it is extremely unlikely that we shall get the number of clerks we need to fill the posts. It will lead to many difficulties, and particularly to the one I emphasised the other day, that we shall tend only to get the man who is not a successful solicitor. It is most undesirable that we should have that type of man. I would far sooner have the kind who made the work of justices' clerk his living and became qualified for it in some such way as I have suggested, rather than a man who started with the ambition of becoming a solicitor, and, because he failed, turned to being a justices' clerk for the sake of a safe post where he could receive a regular income.

I want to deal with the suggestion made in the Government Amendment, which I do not think is satisfactory. I assume, as it appears on the Order Paper, that it must be acceptable to the Law Society, but I must say I am surprised that the Law Society should have permitted themselves to join in this sort of Amendment, because I, frankly, think it undesirable that a man should qualify without serving his articles. This suggestion, as it were, reverses the point made by the hon. Member for Oldham (Mr. Hale) when he interrupted me a moment ago. According to this proposal, we are going to do nothing to prevent the man of what I called in our last Debate "devalued qualification" using it in the full exercise of the solicitors' profession, and nothing to prevent him from becoming qualified as a solicitor and, in the process, a justices' clerk. He can pass this somewhat emasculated solicitors' examination without serving any articles at all, and when he becomes qualified as a justices' clerk there will be no power to limit his activities to that work.

Therefore, there will be created a kind of solicitor who has not had the advantages of having to train for the examinations and has not had to serve his articles, which I think is a very important part of the training of a solicitor, for it is that period of serving the articles that a man who is endeavouring to pass the examination spends in his solicitor's office, and it is in that period that he acquires the status and the standard of honour which the profession requires, and the experience which he needs when he sets out on his own account. I believe that part of training in the legal profession to be of immense importance, and I think it most regrettable that a Government Amendment should propose a means whereby there will be created a kind of solicitor who has not gone through the proper training and the full programme of training which the profession has heretofore demanded.

The practice of the law demands, apart from knowledge, many other things. It demands a standard of honour particularly, which can only be acquired by long association with those who have practised it. It would be most regrettable if we were to create a new type of solicitor—that is to say, one who has taken this somewhat easier examination, and has not gone through the process of being articled to a man of experience, as has been the practice heretofore. Therefore, I do not find the Government Amendment satisfactory. I should prefer to make an entirely new approach to the training and qualification of justices' clerks, abandoning the idea that they should qualify as solicitors, and, instead, making arrangements whereby men can qualify for the job of justices' clerk.

Mr. Charles Williams (Torquay)

I beg to second the Motion.

I do not wish to be drawn into an argument between lawyers about the merits of the particular form of examination which is needed, but during my hon. and learned Friend's speech I was rather struck with the fact that, as far as I can understand, there ought not to be a too complicated examination for this purpose. I see that the Home Secretary is in one of his mellow moods today, and I believe that he and I have this much in common: that although we realise that some examinations are necessary, we both think that real experience, as my hon. and learned Friend has pointed out, is most necessary for this and for many other types of work. T am not yet prepared to say whether this new Clause or the Home Secretary's Amendment would be best for the purpose. I shall decide that for myself when I have heard both sides. But I welcome the fact that apparently the Home Secretary is prepared to meet this request in some way.

Mr. Ede

Let me remind the House of how we have got into this position. We had a long and rather complicated argument about this matter in Committee on an Amendment moved by my hon. Friend the Member for York (Mr. Cor-lett), who withdrew his Amendment on an undertaking given by my right hon. and learned Friend that this matter would be considered. We felt there was a great deal of substance in the arguments adduced in favour of my hon. Friend's Amendment, and we were very anxious to meet it, although I think that the hon. and learned Member for Brighton (Mr. Marlowe) has this afternoon rather receded from some of the arguments that he advanced against us in Committee.

We take the view that it is desirable that, within a reasonable space of time, every justices' clerk should be qualified. I take that view as a lay magistrate very strongly. When I am sitting on the bench endeavouring to discharge my oath as a magistrate, I think that I should have skilled advice on which I can rely from the professional adviser to the court, particularly when I have adduced in front of me an argument by two trained lawyers. It is very essential that I should feel I have a right to rely on the advice that is being tendered to me as being skilled.

We are then faced with two, and perhaps three, difficulties. In the first place, there is the fact that we have a substantial number of men who have served as justices' clerks for some years, and who have by experience acquired a competence in the matter that we cannot ignore. I cannot imagine I shall be reproached by hon. Members opposite if I say that we feel bound to respect the vested interests of these men in the calling they have been following. It would be grossly unfair to wipe them out at the moment, and we have therefore said that there shall be a limited time during which this matter will arise; there shall be a date beyond which no fresh appointments of unqualified people shall be made. By an Amendment we have put down we propose to make that date 1st January, 1960, so as to give ample time for other people to be qualified.

4.15 p.m.

One of the things that rather amazed me before was that my hon. Friend the Member for York should be in favour of any Amendment that recognised unqualified people in any profession, for he and I, as members of the National Union of Teachers, together with my hon. Friend the Member for Epping (Mrs. Manning), have spent a great part of our lives declaiming against the unqualified people in our own profession, and we were always met with precisely the arguments that we were met with the other night: first, that we have got these people, and that they are the victims of a system; and secondly, if we get rid of them where are we to get the others from? Now, precisely those problems confront us here: Where are we to get the properly qualified clerks from?

We had a proposal that would have relied upon only solicitors and barristers entering their respective professions through the existing means being the people from whom the choice would be made. Then we were faced with the problem that was put by my hon. Friends, particularly by my hon. Friend the Member for South Nottingham (Mr. N. Smith), and I think endorsed by the hon. and learned Member for Brighton, that there would be in the offices of the present unqualified clerks a number of assistants, who might be men of parts, who were perfectly capable of qualifying as solicitors, but who because they were not employed by a solicitor, could not serve their articles.

When I looked at the Act I was rather astonished to see the ring fence that the solicitors' profession has managed to put round itself. The man employed in the magistrates' clerk's office cannot find some friendly solicitor in the neighbourhood who would enable that clerk to read with him, and things like that, because the man must have no other employment but that of the solicitor to whom he is articled. That meant that the men who are now in these offices would never be able to qualify, although some of them may be quite suitable young men, who I imagine all of us would like to see acting as justices' clerks.

The hon. and learned Member for Brighton also said on the last occasion that he did not want to debase the solicitor's certificate. I am thoroughly with him in that. But neither do I want to train up a number of men into a blind alley occupation. After all, what the hon. and learned Member's new Clause does is to say that certain people shall be trained as justices' clerks, and their training shall fit them for nothing else but being justices' clerks. Let us suppose that for some reason or another, perhaps physical infirmity, they cannot carry on as justices' clerks but would not be debarred from acting as solicitors if they were qualified. Surely it would be a matter of great hardship if, owing to the way in which they were admitted to this post, they were debarred from carrying on any other professional occupation.

Mr. Marlowe

I have not suggested that this should be exclusive. It is additional to Clause 20. I have no objection at all to their qualifying as solicitors as well if they wish to.

Mr. Ede

But the hon. and learned Member wants them to qualify as solicitors in the ordinary way. I think I have already dealt with that phase of his argument.

I object to people being trained in narrow specialist groups. I am quite sure that in the experience of every magistrate here there are occasions when, even in the most humdrum magistrates' court, one comes up against some point quite unexpectedly where a width of experience and training on the part of the person who has to advise the magistrate is of the very greatest advantage. Perhaps I speak with some feeling, because more than once I have had to preside over the Petty Sessions at Epsom on the day after the Derby, and if the gentlemen who then appeared in front of me could not think up some fresh intricate point with which to befog the bench it was a poor morning. There are other matters that unexpectedly crop up in which wide reading, knowledge and training are of advantage to the person who has to advise the bench.

After the House adjourned the other night, I gave instructions to those who advise me that we should endeavour to meet leading solicitors and representatives of the Justices' Clerks Society to see if we could not find some means by which the people in the justices' clerks offices, who at present are debarred by the Solicitors Act from obtaining their full qualifications, could have an opportunity of qualifying. I must say that the first reaction of these people was not very friendly. I do not think they will object to my saying that everyone appears to be in favour of his own closed shop. It was not easy to get them to agree; but they are very anxious to secure that at some time or other the requirements for qualified persons shall become operative; and it is quite clear that some such arrangement as that enshrined in my Amendment will become necessary. We can put the date 1960 in the Bill, and grey-headed people like myself can say, "Thank goodness, that means that we shall not have to deal with this problem when it arises."

Mr. Manningham-Buller (Daventry)

There will not be a Socialist Government then.

Mr. Ede

The hon. and learned Gentleman is a prophet. As a native of Epsom, I never argue with prophets because, in my experience, when the numbers go up on the board the prophets are generally contradicted. Whatever Government may be in office in 1960, unless some arrangement is made by which the people in these offices can get their qualification as enacted, they will be faced with the fact that they will have to pass some Amendment to secure that the date shall again be postponed. I think that is dishonest legislation. I believe that qualification should be demanded. I believe that the people in the existing offices cannot be disturbed because we have allowed them to grow up under the conditions of the existing law, but I am concerned for the young men in the offices who will have to face the time when a qualification can be demanded.

The solicitors to whom I spoke were leading members of the Law Society, but clearly they cannot bind the Law Society, although they undertook, at a meeting of the governing body of the society which is to be held on Friday, to stand by what they arranged with me. After a very long consultation and drafting conversation, which went on to a late hour last night, we managed to arrive at the Amendment on the Order Paper, subject to one small manuscript Amendment which I do not think it is essential to mention on this discussion of general principle.

I think that these leading solicitors and the representatives of the Justices' Clerks Society faced this issue in a thoroughly practical spirit, and they have enabled the Government to come before the House with an Amendment that is workable, that secures that existing holders of the office of an unqualified justices' clerk shall not be disturbed, that their assistants shall not suffer from the grave disability that they cannot qualify, and that enables us to feel that at the time when this matter becomes fully operative there will be a sufficient reservoir of qualified people on which to* draw.

There was one thing that the hon. and learned Member said on which I cannot profess to express an expert opinion. He expressed the view that the salaries likely to be paid would be unattractive and that we should get left with the failures of the profession. The hon. Member for South Nottingham (Mr. N. Smith), who referred to me as Jezebel the other night, and who now appears to have gone off to find the dogs with which to have me devoured, said that one solicitor in his family had earned more than five other brothers put together. I was assured, when I discussed this matter yesterday with the Law Society, that they did not think that the salaries offered for full-time justices' clerks were likely to be unattractive, and they thought there would be reasonable competition among competent men who would prefer that sort of life.

This represents, as I hope the hon. and learned Member for Brighton will agree, a genuine effort on the part of the Government to meet the arguments which were adduced against us the other night. It does enable us, although we postpone the date by five years, to feel that there will come a time when the justices will have the advantage of being advised in court by a qualified clerk. I ask the House to reject the hon. and learned Gentleman's new Clause, and, for the purpose of dealing with this problem which we are both trying to solve, to adopt the Amendment which I have put on the Order Paper to Clause 20.

I should like to express my particular thanks to the representatives of the solicitors whom I saw yesterday on this matter, because they met a very difficult and practical point in a spirit of co-operation and with a desire to ensure that the principles which I have enunciated in the course of this speech should be made practical of enactment as the law of the land.

Mr. Corlett (York)

I regret that I cannot support the hon. and learned Member in the new Clause he is now proposing. He gave me such generous support in my Amendment on Second Reading and in the Commitee stage that I rather feel that I am deserting him. But I am surprised at the line he has followed after the discussion which we had. All of us, I think, were in the difficulty to "Which the Attorney-General pointed, that is, that we were seeking by the Amendment to perpetuate indefinitely the employment of non-professional qualified clerks. I think that he was entitled to make that charge. But we were faced with the bigger difficulty that we wanted to secure justice for the assistants who, under Clause 20, were not going to receive it. We were faced with the still greater difficulty that under Clause 20 there would not be an adequate supply of justices' clerks to meet the need, so in spite of the charge which the Attorney-General made against us, which was quite justified, we had to take this stand and put down our Amendment.

When I read the hon. and learned Gentleman's Clause, I was at first attracted towards it. I had discussed this question over the week-end with many of my friends who were interested, but the more we looked at it the less attractive it seemed. Tt seemed to me that it would mean that there would be inferior qualifications for this particular type of solicitor, if such they would be called. I do not think any of us want to see inferior qualifications in any profession. In any profession there should be a basic qualification with as many additional qualifications as one may like to secure, but there should not be two qualifications, one inferior to the other.

4.30 p.m.

I have considered whether London University might be able to supply an external degree in law for this type of post, and I know some assistant clerks who hold such a qualification, but the more I thought about it, the more I realised that it would be just as easy to take the professional qualifications as to take the external degree. I am driven, therefore, to support the proposals that are now put forward by my right hon. Friend. He has found, I believe, an admirable solution for a very difficult problem. In the first place, his solution will satisfy the Law Society. I did not express any great love for the Law Society when I spoke in the Second Reading Debate, but they are entitled to be considered fully in regard to the professional qualifications of their members. If my right hon. Friend has satisfied them that the proper qualifications will be available for these clerks, then he has done a great service.

In the second place, he has satisfied the assistants. The assistants now serving are completely covered. Every assistant now serving has the same protection that he had before Clause 20 appeared, which is all to the good. Indeed, assistants will be better off, because all these assistants will now have an opportunity to take the full professional qualification, which will make their chances for appointment to justices' clerk greater than now, when they have only a statutory qualification. A man will now have the statutory qualifications plus the additional professional qualifications desired by the Law Society.

In the third place, my right hon. Friend will satisfy the lawyers who appear before the bench. The point was raised by my hon. Friend the Member for Central Newcastle-upon-Tyne (Mr. Wilkes) that lawyers do not like appearing before a bench that is advised by a non-profes-sionally qualified magistrates' clerk. I attempted to rebut that, but if it is the case that lawyers feel in some difficulty, the position will be greatly eased by the fact that the bench is to be guided by a fully professionally qualified man. It is also a good thing for the magistrates that my right hon. Friend should have found this solution. They will know, when they make their appointment, that they are making it from an adequate list of able, and efficient justices' clerks. The justices ' clerks will appear before them with their full professional qualifications, and in addition to these qualifications they will have acquired the experience which can only be acquired by service in the courts.

It only remains to be certain that the Law Society will generously implement the promises they have given to my right hon. Friend. I have no reason to doubt their sincerity in this regard, and I am certain that they will do everything possible to remove every financial embarrassment to an assistant who wishes to become professionally qualified. If ' they do that, then, instead of having Clause 20 as originally drafted, we shall have a Clause that will satisfy everyone concerned about this problem. I offer my sincere congratulations to my right hon. Friend for having found such an admirable solution of this very difficult problem.

Mr. Hale

My right hon. Friend has dealt with this matter so fully, so effectively and so clearly that I should not have thought it necessary to have added anything but for certain misconceptions which still appear to exist in the minds of the hon. and learned Member for Brighton (Mr. Marlowe) and some of my hon. Friends as to the position of solicitors. When I was articled some 32 years ago, we had to pay a stamp duty of £80 on the articles, and my father had to pay a premium of 300 guineas. I served for five years without a penny by way of remuneration, which was the normal procedure, and paid a £30 stamp duty on the admission certificate. My boss then offered me £3 a week, which I refused, and I got a job at £4 a week, which I left, and spent £2 12s. 6d. on a brass plate and started on my own. That was the net return for five years.

Mr. Cecil Poole (Lichfield)

What has it been since?

Mr. Hale

I could supply the earlier figures, if my hon. Friend likes.

Mr. Poole

We want them up to date.

Mr. Hale

I so rarely see my practice that I should have to ring up to find out whether we are making a profit or not.

That was the normal procedure, and in fairness to the Law Society it is right to point out what is the position now, and also in fairness to the Government. The £80 stamp duty was abolished by this Government, and so was the £30 stamp duty. It is not now the normal practice for a premium to be paid, although in some districts it still goes on, and I have protested about it in Lancashire. I have had many articled clerks without any premiums of any kind being paid. It is open to a lad to go to a solicitors' office as an office boy, and then, if after a few years' service he shows himself to be efficient and bright, it is in the solicitor's interests, as well as in the interests of the lad, to article him and pay him wages, as well as giving him time off to take his examinations.

The hon. and learned Member for Brighton, who knows how easy it is to pass the Bar examinations, seemed to think that the examination will be recondite and will demand special ability, but if he looks at some of the solicitors he will know that is nonsense. One does not need any brains to qualify as a solicitor, but one has to go through hard toil and graft, and it is right that one should. It is reasonable that a person should qualify with a fairly wide knowledge of the law, which I am bound to say has not become any less complex during the last four and a half years. If we are to continue with the lay justices at all—and this Bill is very much in favour of that, and so am I, because taking it by and large they are one of the best tribunals in the country—then the really essential thing is that a qualified clerk should rule on law.

Mr. Manningham-Buller

Not "rule," advise.

Mr. Hale

That has been the policy.

Mr. Manningham-Buller

The hon. Member says that a qualified clerk should rule on law.

Mr. Hale

That is precisely what I meant to say. My view has always been that, on matters of law, the learned clerk should rule. The hon. and learned Member is quite right that this is not the position at the moment; that they advise and the bench can reject the advice. I am more attracted to the position of a judge advocate at a court martial—

Mr. Manningham-Buller

However much attracted the hon. Member may be to the position of a judge advocate in a court martial, the magistrates' clerk has no power to rule.

Mr. Hale

If the hon. and learned Member will allow me to finish, he will understand what I am saying. I am much more attracted to the position of the judge advocate who has to rule on the law in a public court, and having done that, takes no further part in the proceedings. Similarly, the clerk should give his ruling, although this is not relevant to the proposal now before us.

The whole trend has been to appoint full-time clerks, although one knows of many cases where solicitors are very excellent part-time clerks and loyal servants. The position of the practising solicitor who is also a clerk to the magistrates gives rise to an anomaly that was mentioned earlier today in a slightly different type of case. There is an inevitable conflict of interest where the clerk to the magistrates finds himself advising the bench when it is trying one of his own clients. The position is very difficult, because justice must not only be done but appear to be done. Therefore, the trend of events is towards a full-time clerk and the combination of adjoining magisterial districts.

I accept the view that the position of the qualified clerk to the unqualified clerk is an impossible one. The unqualified clerk serving a qualified clerk is also in a difficult position, and this Clause will go far to deal with that. I am sure that once it has been put to the Law Society they will accept that point of view. I do not always agree with the Law Society, but I had a letter from them on this matter, which I read with pleasure before writing back to say, "For once I agree entirely with you. This is progress," although we have not agreed on whose part the progress has been made.

Everyone accepts that the new Clause which has been moved by the hon. and learned Member for Brighton (Mr. Marlowe) was put before the House with com- plete sincerity to meet a point of view that most of us had in mind. It was put forward with the intention of helping the so-called unqualified clerks, many of whom are better qualified, from the point of view of long experience, than some of the qualified clerks. One of the best clerks I ever appeared before had no qualification at all until a few days ago, but he was, nevertheless, an exceedingly able lawyer. The trend of this discussion shows that a real difficulty will be met by the Home Secretary's proposed Clause and that the proposal of the hon. and learned Member for Brighton would create a highly anomalous and unnecessary position for the half qualified men in a limited job, who would be worse off at the end of the process, than they are without it.

Mr. Manningham-Buller

My hon. and learned Friend the Member for Brighton (Mr. Marlowe) has made an attempt to solve a problem to which attention was drawn on the Committee stage. I disagreed with him then, and supported the Home Secretary in his stand for a qualification for justices' clerks. That being so, I am a little sorry that my hon. and learned Friend should have been subjected to some criticism by the hon. Member for Oldham (Mr. Hale) for pursuing that course. I think most of us will agree that the Home Secretary has found the better solution of the two, and I shall certainly support the right hon. Gentleman's Amendment when it comes before us. I really rose, however, to express the hope that, having considered both these matters, we could now call a halt to this discussion. I hope my hon. and learned Friend will feel satisfied that his new Clause has achieved his object and that we shall be able to get on with the other parts of the Bill, on which I hope discussion need not perhaps be so lengthy.

Mr. Marlowe

I do not wish to detain the House for more than a few moments, as we have had a full discussion, but I cannot accept the invitation of my hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller) to withdraw the Clause, although, from the tone of the Debate, I have no doubt that it will be negatived. I cannot leave—

Mr. Deputy-Speaker (Mr. Bowles)

I thought the hon. and learned Member was about to withdraw his Motion; he cannot make a second speech.

Mr. Marlowe

As I moved the Motion I thought I was entitled to reply. If not, may I, with the leave of the House, say that I appreciate that the Home Secretary has made an effort to go some way with me on this matter? The position is better than if it had never been raised at all, and I think we can feel that we have achieved something.

Question put, and negatived.


Mr. Deputy-Speaker

Mr. Ede.

Mr. Manningham-Buller (Daventry)

On a point of Order. Is not my Amendment, in page 5, line 23, after "partners," to insert "all employees," being selected, Sir? It is an Amendment which the Government said they would consider. The point raised by this Amendment is not, I think, raised by the next Amendment on the Order Paper in the name of the Home Secretary. If my Amendment is not selected, it prevents me from inquiring into the reasons why this particular point has not been met, although the Government said they would consider it.

The Attorney-General (Sir Hartley Shawcross)

Further to that point of Order. I had hoped that we had met the point, Mr. Deputy-Speaker. I was going to deal with it on the Government Amendment.

Mr. Deputy-Speaker

Mr. Speaker decided not to select the Amendment in the name of the hon. and learned Member for Daventry (Mr. Manningham-Buller) because he was satisfied that it was covered by the next Amendment.

Mr. Manningham-Buller

Then in case I can convince the Government that the words of my Amendment ought to go into the Bill, could we not take my Amendment and the Government Amendment together?

Mr. Deputy-Speaker

Yes, I think I have power to allow that.

Mr. Manningham-Buller

I appreciate the improvement in the Government Amendment in page 5, line 27, but I should like to explain why, in my view, that Amendment does not meet the point I raised on Clause 7 during the Committee stage. The right hon. and learned Gentleman will see that the people who are prohibited by subsection (2) from behaving in a particular way are in only two categories, namely, the solicitor, who is one of the justices, or any partner of his. These are the only two people who are prohibited from practising. The rest of the Clause in its original form, and as it will no doubt be amended, merely goes on to say what they shall not do. The Clause as drawn, and as it will be amended, does not apply to anyone else but the solicitor, who is one of the justices of the peace, and his partner. I suggest that it ought to apply one degree further, to the qualified person in the employment of a solicitor who has no partner.

4.45 p.m.

Mr. Sydney Silverman (Nelson and Colne)

Has the hon. and learned Gentleman quite appreciated that a solicitor can only practise either by himself or through his partner or an employee?

Mr. Manningham-Buller


Mr. Silverman

If his employee were practising, he would be practising himself, so that the words "or employees "are unnecessary.

Mr. Deputy-Speaker

I have been considering this matter. The hon. and learned Member for Daventry has not moved his Amendment, which Mr. Speaker did not select, and I must call the Amendment in the name of the Home Secretary.

The Attorney-General

I beg to move, in page 5, line 27, to leave out from "to." to the end of line 28, and to insert: act in connection with proceedings before any of those justices as solicitor or agent for the solicitor of any person concerned in those proceedings. We have given careful consideration to this matter, and I entirely agree with the view which the hon. and learned Member for Daventry (Mr. Manningham-Buller) has expressed. I said so in Committee, and I say so again today. We think that this Amendment covers the position of the solicitor who has a managing clerk or other employee who appears before the court. The employee can only appear in that capacity, and the justice-solicitor is properly described as practising before the court when his employee, the managing clerk or whoever it may be, appears for him.

I should like to assure the hon. and learned Member for Daventry that we considered other forms of this Amendment which put in the words "or employees," but after taking advice we came to the conclusion that the form of words in our Amendment was the most appropriate to cover the point in his Amendment. Our Amendment also precludes a solicitor appearing by his agent, so I think it is inconsistent with the Amendment which the hon. and learned Member has put down in page 5, line 28.

Mr. Manningham-Buller

I shall not move that Amendment.

The Attorney-General

We take the view that it might be open to serious objection if a justices' clerk who was a solicitor, although unable to appear himself, were able to employ an agent to appear in his cases for him.

Mr. Manningham-Buller

I appreciate that there is nothing between us as to our intentions under this Clause. Indeed, as I said in Committee, the Amendment I tabled was of a drafting nature. I must confess that when I first looked at the Amendment which the right hon. and learned Gentleman has moved—I had only a short time at my disposal then—I was under the impression that it did not fully cover the point I wanted to see covered. I am grateful to the right hon. and learned Gentleman for the trouble he has taken and the assurance he has given. I agree with him that there are certain difficulties about the next Amendment in my name, that in page 5, line 28. I do not know whether it will be selected or not, but if it is, I do not propose to move it. All I can do in those circumstances is to thank the right hon. and learned Gentleman.

Amendment agreed to.

Further Amendments made: In page 5, line 37, leave out from "not," to end of line 38, and insert: subject him or any partner of his to any disqualification under this section.

In line 41, leave out from "not," to end of line 42, and insert: subject any partner of his to any disqualification under this section."—[The Attorney-General.]


The Attorney-General

I beg to move, in page 6, line 36, at the end, to insert: which shall be subject to annulment by resolution of either House of Parliament. During the discussions in Committee, the hon. and learned Member for Daventry (Mr. Manningham-Buller) and the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) pressed for the insertion of a requirement that the regulations to be made under this Clause in regard to travelling and lodging allowances to justices should be subject to the negative Resolution procedure in this House. We have considered that matter and agree that it should be done. This Amendment makes provision for it.

Amendment agreed to.


The Attorney-General

I beg to move, in page 7, line 29, to leave out "June," and to insert "December."

This Amendment must not be taken to commit the Government to any final policy in any other matters as to the respective merits of June and December. It is a procedural Amendment in regard to the particular matters dealt with in Clause 10. The Amendment is made because if the population were taken to the nearest 1,000 as at June, 1948, Wednesbury, which had a population on that date of 34,460, would be excluded. Nelson, the next borough in population above Wednesbury, had at the end of June, 1948, a population of 34,500. There was, therefore, a difference of only 70 between them in population, but that 70 was critical on the point whether or not they would be within the scope of the Clause.

It would be obviously wrong to differentiate between these boroughs, and if the population at the end of December, 1948, is taken they are both included, Nelson having at that time a population of 34,540, having gone up by 10 apparently, and Wednesbury a population of 34,660. Accordingly, the Amendment provides that the December date shall be taken so as to include those two boroughs. There are no other boroughs, as far as we have been able to ascertain the position—and we have examined all of them—affected by this Amendment so far as the position of any quarter sessions within the limit of 20,000 are concerned.

Mr. S. Silverman

I do not want to delay the House in considering this matter, but may I be permitted to intervene for one moment to congratulate the Government on the realisation of the value of the extra 10 people who came to live in Nelson between June and December. 1948, whoever they may turn out to be.

Amendment agreed to.

The Attorney-General

I beg to move, in page 7, line 34, at end, to insert: (c) that at the end of that month the borough had a separate commission of the peace and court of quarter sessions, and the Lord Chancellor makes an order under subsection (5) of this section saving the grant to the borough of its commission and quarter sessions. This is the first of three Amendments to page 7 which gives the Lord Chancellor discretion to save a court of quarter sessions and the commission of the peace with which it is associated in certain exceptional circumstances where, both in the interests of justice and because of historical or geographical reasons, he deems it desirable so to do. The Amendments have been introduced to give effect to an undertaking which I gave during the discussion on an Amendment which the hon. and learned Member for Daventry (Mr. Manningham-Buller) put down. That Amendment was withdrawn. It was one which contemplated saving recorderships with their associated commissions of the peace in exceptional cases, and it also contemplated in some cases saving commissions of the peace although they were not associated with any recordership.

Reading through the OFFICIAL REPORT of our Debates in Committee, I am sorry to find that there seems to have been some misunderstanding about the matter. My hon. Friend the Member for Taunton (Mr. Collins), in the course of my speech, in which I was accepting the principle of the Amendment which had been put forward by the hon. and learned Member for Daventry, interrupted to say: May I put a point to my right hon. and learned Friend before he sits down? While I thank him for the manner in which he has dealt with the matter, I should like to point out that he mentioned only recorderships. In accepting the principle of the Amendment, does he also accept that part of the Amendment which refers to separate commissions of the peace? I said, "Yes, Sir," and if I had said that alone it might well have been thought, and indeed would obviously have been thought, that I had in my mind that other part of the hon. and learned Gentleman's Amendment which dealt with commissions of the peace standing on their own in boroughs which were not quarter sessions boroughs. That was indeed the point to which my hon. Friend the Member for Taunton had addressed his question. I am afraid that he and I were at cross purposes as appears quite clear from the qualifications that I gave to that answer. I said: Yes, Sir. We have taken the view that it would be impossible, without a considerable and complicated alteration in the law, which certainly could not be accomplished in the scope of this Bill, to separate a recordership from the commission of the peace with which it is associated."—{OFFICIAL REPORT 7th December, 1949; Vol. 470, c. 1940.] I am afraid at that time I had very much in mind the position of those boroughs which had their own courts of quarter sessions. I should very much regret if I led my hon. Friend the Member for Taunton—I do not think I misled the hon. and learned Member for Daventry or any other hon. Member—to think that I was accepting the Amendment in its fuller scope as including separate commissions of the peace in boroughs which had not got their courts of quarter sessions. I am afraid I had no intention of doing that, and on the Debate on the hon. and learned Gentleman's Amendment we concentrated our attention on those boroughs which had their courts of quarter sessions. Indeed, almost every speech was directed to the position of quarter sessions and the question whether or not the work of those courts might be made to provide a greater contribution to the administration of justice than they had done sometimes in the past. It is fair to say that the whole emphasis of our discussion was laid on the position of quarter sessions, and we did not deal in any detail with the situation which might arise of boroughs which had not a court of quarter sessions but where there might be special reasons in regard to the commission of the peace.

5.0 p.m.

I am very sorry if my answer on that point misled my hon. Friend the Member for Taunton, as indeed I am afraid it must have done. I can only say, on the merits of the matter, that the Committee having only just fixed the figure of 35,000 as the appropriate one, the optimum figure, below which boroughs ought not to have a separate commission of the peace, we would not have felt then, nor could we feel now, that it would be reasonable to give discretion to the Lord Chancellor to make an exception in those cases. I think that the House would agree that, in discussing that question of separate commissions of the peace, we went a very long way to meet the views of the Committee. Indeed, we accepted exactly the figure which had been put forward by the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe). After a very full Debate on that matter, I think that the general consensus of opinion was that the figure 35,000 was right and that it would not be appropriate to go below it.

I have made an. explanation which goes a little wide of the present Amendment in order to make it clear that, through my own fault, I am afraid, we were at cross purposes when that question was put to me by my hon. Friend the Member for Taunton, and that it was not our intention, in accepting the principle of the Amendment put forward by the hon. and learned Member for Daventry, to include the case of the borough which had no quarter sessions. This Amendment, the first of the three connected with this matter, does not relate to the separate commission of the peace unless there is a court of quarter sessions with which it is associated. We shall have an opportunity on the main Amendment to consider the position of the quarter sessions and the circumstances in which it may be saved by the Lord Chancellor. It may be more appropriate to do it on that Amendment, but I thought it right to make this explanation immediately and at this stage.

Mr. Manningham-Buller

The right hon. and learned Gentleman has been frank with the House in pointing out and making quite clear that his proposals do not now fully comply with the Amendment which I tabled and moved on the Committee stage. I do not know whether the right hon. and learned Gentleman thought that my Amendment was difficult to interpret. As it was drafted, it seemed clear. I think that he must admit that the Amendment giving power to depart from the ceilings imposed by Clause 10 applied to the whole of Clause 10 and not just to the cases where there were recorderships. It applied to cases where there were separate commissions of the peace.

I must express regret that the right hon. and learned Gentleman did not, perhaps, pay enough attention to what I was saying in moving the Amendment. I clearly drew attention to the matter at the very outset of my speech. I said: I am not satisfied, even though some boroughs have now been given a new lease of life so far as commissions of the peace are concerned, that the administration of justice would not be interfered with as the result of the fixing of an arbitrary figure. Further, I said that the Amendment was designed to try to state principles which should be applied in determining whether a recordership or, indeed, a separate commission, should be retained when the population is below the ceiling specified in Clause 10. The right hon. and learned Gentleman, in replying to me and before the question was put to him by his hon. Friend the Member for Taunton (Mr. Collins), said: … if the hon. and learned Gentleman will now withdraw his Amendment. We undertake to accept his Amendment in principle and to put down an appropriate Amendment on the Report stage."—{OFFICIAL REPORT, 7th December, 1949; Vol. 470, c. 1928, 1929, and 1940.] Hearing those words, I must say that I thought at the time that the right hon. and learned Gentleman was accepting my Amendment in principle completely.

The Attorney-General

Did not the hon. and learned Gentleman think that I had gone very much further than he expected me to go?

Mr. Manningam-Buller

I thought that my persuasiveness had reached undue heights on that occasion. I hoped that the weight of my argument would make some impression upon the right hon. and learned Gentleman, and I was delighted to find that it had made a considerable impression I thought that the right hon. and learned Gentleman had gone the whole way when the question was put to him by his hon. Friend the Member for Taunton and the answer was "Yes." From what he went on to say, I think it is clear that the mind of the right hon. and learned Gentleman was quite wrongly fixed at that moment only upon the case of the recorderships. That being so, while I must express my regret that the right hon. and learned Gentleman has not been able to go with me quite as far as I hoped, I do not intend to try to pin him down to what was said upon the Committee stage. I would prefer to reserve such comments as I have upon the proposals he has tabled to embody the principles I put forward with regard to recorderships till we come to the particular Amendment.

I am sorry that the Government have not been able to go the full way in giving this discretion where there are separate commissions of the peace, although I appreciate, as I think the whole Committee appreciate, that the Government have gone a considerable way in reducing the ceiling applicable to such commissions. It is a pity that the Lord Chancellor should not have reserved to him power to retain a separate commission of the peace when the population of the borough is below the prescribed ceiling and it could be shown to the Lord Chancellor that there was strong argument on geographical or historical grounds, or on grounds of better administration, for the retention of the separate commission of the peace.

Mrs. Leah Manning (Epping)

I quite realise, reading through the report of the Debate, that while one's mind was fully occupied at the time with saving those boroughs which had a separate commission of the peace and which conformed to the new ceiling, it was only natural that when the Attorney-General replied "Yes, Sir," it should have made us feel that we had got the whole of what we were asking for, and that the Attorney-General had accepted the full Amendment of the hon. and learned Member for Daventry (Mr. Manningham-Buller). I must agree that, reading the whole of what the Attorney-General said it is clear that we rejoiced a little too early and that we were, so to speak, travelling in the street car named "Desire" at that moment.

I cannot help feeling that my hon. Friend the Member for Taunton (Mr. Collins) was not alone in jumping to that conclusion. If the House will look at the OFFICIAL REPORT they will see that after my right hon. and learned Friend finished his speech, some other people realised that they had rejoiced too early, because the report says: Several hon. Members rose —."— [OFFICIAL REPORT, 7th December, 1949; Vol 470, c. 1940.] I can only conclude that the hon. Members who rose at that time might have wanted to say a little more about the subject and about the misunderstanding, and might have tried to plead with the Attorney-General. I see that the hon. and gallant Member for Daventry does not quite agree with that. I think he might take my part for once and not get me wrong about it. After all, nobody knows why those hon. Members rose. I can only assume that they rose for that purpose. In response to an appeal by the Deputy-Chairman, those hon. Members sat down, so that we might get on with the next business.

I suppose it is no use at all to plead with the Attorney-General on this point. I hope that another occasion may arise when we shall be able to ask him for more discretion in this matter. There are some boroughs which, certainly on historical grounds and perhaps also on geographical grounds, ought to be brought within the minimum.

The Attorney-General

I am very much obliged for the way in which the hon. and learned Member for Daventry (Mr. Manningham-Buller) and my hon. Friend the Member for Epping (Mrs. Manning) have dealt with the matter. When my attention was drawn to the obvious misunderstanding that had arisen, we gave the most careful consideration again to the question whether we could deal exceptionally with commissions of the peace with which there were no associated recorderships, and we came to the conclusion that we could not do so. I should be very sorry to think that my answer had misled hon. Members with the result that they did not put down Amendments on the Report stage. It may be some consolation to them to know that if they had put down Amendments on Report stage, we should have had to reject them. For the rest, I must confess that that was not one of my more lucid moments. I can only appear in sackcloth and ashes and throw myself on the mercy of the House.

Amendment agreed to.

Further Amendment made: In page 7, line 35, leave out from "the," to "His," and insert "passing of this Act."—[The A ttorney-General.]

The Attorney-General

I beg to move, in page 7, line 40, to leave out "seventy-five," and to insert "sixty-five."

This is really consequential on the matters we discussed when the Bill was re-committed this afternoon.

Amendment agreed to.

The following Amendment stood upon the Order Paper in the name of The ATTORNEY-GENERAL:

In page 8, line 18, at end, insert: (5) The Lord Chancellor may make an order saving for the purposes of subsection (1) of this section the grant to a borough of its commission and quarter sessions if—

  1. (a) the borough council applies for the order not later than two months after the date of the passing of this Act or within such further time as the Lord Chancellor may allow; and
  2. (b) the Lord Chancellor is satisfied that it is desirable to save the grant to the borough of its commission and quarter sessions on account—
    1. (i) of the assistance the borough court of quarter sessions has given or is likely to be able to give in the administration of justice in the county which includes the borough; and
    2. (ii) of historical or geographical reasons; and it shall be the duty of the recorder for the time being of any borough named in an order under this section, before he fixes the date for holding any quarter sessions for the borough, to consult the chairman of the court of quarter sessions of the county or quarter sessions division of a county in which the borough is situated or (failing the chairman) the deputy chairman or one of the deputy chairmen of that court.
(6) The power of the Lord Chancellor to make an order under this section shall be exercisable by statutory instrument.

The Attorney-General

This is the second and the main of the three Amendments dealing with the power which will now be given to the Lord Chancellor to exercise an exceptional discretion to save the commission of the peace and the court of quarter sessions in boroughs having a population of under 20,000. We have discussed this matter very fully on the Amendment which the hon. and learned Gentleman the Member for Daventry (Mr. Manningham-Buller) put down in Committee and I think that I need say very little about it. I should perhaps say that we would not want it to be thought that this power was going to be exercised very widely. It is on the face of it a power to be exercised in exceptional circumstances, and the Lord Chancellor will have to look with great care at any applications which may be made to him for the exercise of the power.

When we discussed the matter in Committee I pointed out that owing to the dates at which quarter sessions had frequently been fixed, and perhaps also to other considerations, the procedure of cross-committals under the Criminal Justice Act, 1925, had not very frequently been employed and that there were few, if any, courts in this category—I mean the category of boroughs with a population of under 20,000—which were at present making any significant contribution to the administration of justice, but I said that it seemed to me that there might be a few cases—not many—in which an alteration of the dates of the sessions might result in the courts attracting a certain amount of work from the county and consequently making a useful contribution to the administration of justice in the county.

Under this Amendment the Lord Chancellor will be prepared to consider whether in a particular case by altering the dates of the sittings and by other arrangements the courts could usefully assist in the administration of justice in the county as a whole. If the Lord Chancellor comes to the conclusion that arrangements could and are likely to be made which would enable the courts so to do and that there are historical and geographical reasons—

Mr. Manningham-Buller

Historical or geographical.

5.15 p.m.

The Attorney-General

I am much obliged—historical or geographical reasons in addition which make it desirable to save the grant of quarter sessions and a separate commission to the borough, he will do so. If he does so it will become the duty of the recorder—this is a point of some importance, although there is no immediate sanction attached to it—to consult with the chairman of the county quarter sessions in order to see at what dates it would be most convenient to fix the borough quarter sessions so as to secure cross-committals and assist the county quarter sessions in its work.

I think that is all I need say at this moment about the Amendment, except to add that applications for the exercise of this discretion by the Lord Chancellor have to be made within a period of two months from the passing of the Bill. I thought at first sight that that seemed a rather short period in view of the Christmas vacation and so on, but on studying the matter it seems necessary that the period should be a short, limited one if the rest of the Bill is to be brought into operation. A great deal depends on the end of the financial year in the case of these boroughs, and that to some extent governs the stages at which the Bill can be brought into operation. We want to get this matter out of the way before the end of the financial year, which is 31st March, and it follows that if the applications are to be properly considered they ought to be in before the end of two months after after the passing of the Bill.

Mr. Deputy-Speaker (Mr. Bowles)

Before the right hon. and learned Gentleman moves the Amendment I would point out that he said a few minutes ago that that was all he wanted to say at the moment. He, like any other hon. Member, cannot speak again without permission.

The Attorney-General

I am much obliged, Mr. Deputy-Speaker. I beg to move the Amendment.

Mr. Manningham-Buller

The right hon. and learned Gentleman concluded his lucid exposition of the Amendment by a reference to the time within which an application can be made under it. I agree with him that at first sight the period of two months seems a very short one. Unless action is taken by the borough council within two months of the passing of the Act the new provision will be of no effect. The right hon. and learned Gentleman talked about the end of the financial year, the effect of Christmas, and things of that sort, but I fancy that he has not given sufficient consideration to the position of recorders who are candidates for Parliament. In the event of the election taking place within the next two months, they may find it very difficult indeed to take advantage of these provisions. I assume that should such an event occur the Lord Chancellor would be willing to grant some further time for the making of the application. Of course, the right hon. and learned Gentleman may be able to say that there is no possibility of that occurring and that the question does not really arise.

As to the rest of the Amendment, I was sorry to hear him say that it gave a power which would only be used in exceptional cases. I think it is a power which should be used when the case can be brought within the categories specified in the Clause. I believe that a great deal more use can be made of these courts of quarter sessions in boroughs with small populations, more use with an improved administration of justice and at less cost, and I hope that great regard will be had to that in considering such applications made under this Clause.

I am sure that by a re-arrangement of dates, which can be done very often by agreement—therefore I welcome the provisions in the Bill dealing with that—the burden can be more fairly shared between county quarter sessions and borough county sessions in many areas. Merely by taking the population limit without regard to the nature of the communications that exist in the area and the presence of big camps which are not included in the population of the borough, one may do something in letting the recordership go which will not help but will impede the administration of justice.

I thank the right hon. and learned Gentleman for meeting so fully and so adequately the question of dealing with recorderships which I raised in Committee stage. I hope that as the result of this power we may retain some of these recorderships which can play a useful part even if they have not done so in the last few years, and also those recorderships of boroughs with small populations which have been playing a useful part. Berkshire in particular has had a system with small recorderships which has proved extremely useful and beneficial.

Mr. C. Poole

I only intervene in this Debate because of a little wordy duel I had with the hon. and learned Member for Daventry (Mr. Manningham-Buller) which may have conveyed a false impression as a result of something you said, Mr. Deputy-Speaker. When the hon. and learned Gentleman was suggesting that certain boroughs not falling within the numerical ceilings should be retained, he mentioned one or two, finishing with Leamington. I interjected "Lichfield" and we got into a discussion regarding the merits of Lichfield. You said, Mr. Deputy-Speaker, that this had nothing to do with the matter. That was true, but Lichfield has everything to do with this subsection and I am glad that the Government has departed from a purely numerical test for recorderships and commissions of peace.

I have listened to many of the cases put forward by hon. Gentlemen speaking for the areas they represent. Those I have not heard, I have read, and I shall not make the case for Lichfield today although that case is probably outstandingly superior to any other case put in this House. I say that because Lichfield has had a recorder and a separate court of quarter sessions for over 400 years. As a matter of fact, Lichfield has been in existence since the year 300 and its first charter was granted as far back as 1387. We have been interested in the administration of justice in Lichfield for probably longer than any other centre in this country.

I was sorry that the learned Attorney should have suggested that there would only be a few, if any, of these recorder-ships and separate commissions of the peace retained because Lichfield adequately fulfils every test laid down in this Government Amendment. It is 16 miles away from the county sessions, and although on the numerical test, which was originally the only test in the Bill, it falls lamentably short in the ratio of population, it being only around the 10,000 mark, by its geographical location in a mining area covering a population of something like 40,000, it can fulfil a need in assisting the county sessions.

If I were to advance the historical claims of Lichfield, the House would be sitting here for the greater part of the night, but I am sure that the Attorney-General will be fully competent and, I hope, ready and willing to look at the historical associations of Lichfield in the administration of justice for the last 1,600 years. I hope he will say that, because of its geographical location, it is one of those recorderships which ought to be retained and that, on the basis of population and assistance to the county sessions, it also fills the bill.

The Attorney-General

On that point, perhaps the hon. Member would like to add to his claims for Lichfield that it tried 17 cases this year and 10 the year before, which was well above the average.

Mr. Poole

I am grateful to the Attorney-General for helping me with my brief. I hope that the Lord Chancellor will take due note of the partisan approach to the claims of Lichfield for the retention of its recordership. [An HON. MEMBER: "Don't spoil a good case."] I will now sit down, advancing only one point which I admit had escaped me but which the hon. and learned Gentleman made, that further strengthens our claim. He mentioned the proximity of camps with their large populations as having had an impact upon the crime factor. Lichfield has Whittington Barracks., the headquarters of the South Staffordshire Regiment. Occasionally, through alien regiments being located in the barracks, our crime factor is influenced in an upward direction. I feel sure that in view of all those circumstances Lichfield must be one of the few, if any, to be retained.

Brigadier Thorp (Berwick-on-Tweed)

I rise to thank the Home Secretary for putting down this Amendment, which meets the case of Berwick-on-Tweed. I was glad that the hon. Member for Lichfield (Mr. C. Poole) was here today to put his case because it backed up my case and I mentioned Lichfield as one of the four boroughs that had been made counties in 1836.

Mr. Turner-Samuels

I rise to support an observation of the hon. and learned Member for Daventry (Mr. Manningham-Buller) in regard to the exercise by the Lord Chancellor of the discretion conferred upon him by this new subsection. I should be sorry if this were to be carried out merely on the test that the case for retaining any of the recorderships in question has to be an exceptional one. I should have thought that the point of this subsection was that in nearly all of these recorder-ships there is a considerable amount of work from other areas which can be shared by them if arrangements for that purpose are made, and that therefore on practical grounds they should be retained.

I agree that historical grounds are important and ought to be considered and respected, but that ought not to be the salient test. The paramount test should be the practical question whether that quarter sessions can help in expediting and cheapening justice and making it possible for the administration of justice to be worked more effectively and smoothly. Therefore I ask the Attorney-General, in considering this matter, not to be so influenced, as he appeared to be when introducing the Amendment, by his view about exceptional cases since the ' only test ought to be whether quarter sessions can be retained in aid of the better and cheaper administration of justice.

Mr. Hollis (Devizes)

I shall not make another speech on this topic, but may I intervene on a layman's query? With great respect to the learned Attorney, I am not so much concerned about how any exceptional cases will be considered by him because it will be the Lord Chancellor who will consider these cases. With regard to the period of two months, the Amendment says: not later than two months after the date of the passing of this Act or within such further time as the Lord Chancellor may allow. Does that mean that each application for extending the time limit will be considered or that some general ruling of extension might or might not be given? From the speech of the learned Attorney it appeared that it was not within the contemplation of the Government, at the moment at any rate—though sometimes they do things they have not contemplated—to extend the period of two months in general. Therefore, if the further condition "or within such further time" has any meaning, it presumably means that in a particular case for some reason—such as my hon. and learned Friend instanced, that the recorder was standing for Parliament—an extension of time may be granted. That is my understanding and I shall be grateful to know if my understanding is right.

5.30 p.m.

Mr. Marlowe

I want to take up another aspect of the point to which my hon. Friend the Member for Devizes (Mr. Hollis) has referred. The drafting of the Amendment is not entirely satisfactory. As I understand the position, the two months' time limit is a period in which the application has to be made, but thereafter there is no time limit of any kind as to how the matter is handled. Once the application is in within' two months, the situation is saved, so to speak, for the time being, and thereafter the Lord Chancellor decides whether he grants the application or not. I do not regard that as the most satisfactory method. I would much prefer the approach which was made in our Amendment, namely, that all the recorderships should be saved and the Lord Chancellor should consider each one on its merits and come to a decision which of them should be allowed to continue. The method proposed in the Amendment now before the House seems to put matters in reverse.

I cannot see the argument of the Attorney-General in referring to the end of the financial year, for there is nothing which requires this matter to be completed by the end of the financial year or by any other date. It might drag on interminably, as far as one can see, because no action is required by the Lord Chancellor. That is why I want to know what is to happen in practice to a court which is due to sit after the Bill has received the Royal Assent and before the time limit of two months has expired.

On the face of it, under the Bill the recordership or the court of quarter sessions would appear to have been abolished; yet, pending the decision of the Lord Chancellor, it would presumably be entitled to sit. Under what warrant would it then be acting? The drafting on these points is not very satisfactory and appears to have been done hurriedly. I well understand there has not been a great deal of time for full consideration on all these points. One is led to the conclusion, therefore, that our Amendment, which was more deeply considered, is far more satisfactory because it deals with the matter from the opposite direction.

Can the right hon. and learned Gentleman say whether there is any time limit for consideration by the Lord Chancellor? It does not seem to me that there is; apparently he makes a final decision at any time as to whether a recordership is to be abolished. It would be far better to impose a time limit somewhere, otherwise an application from a borough might remain in the Lord Chancellor's office for five years before he ever dealt with it. During the whole of that time, nobody would know whether the court of quarter sessions was to continue or be put an end to.

The way I should like to see the problem dealt with would be to give every existing recordership an opportunity to justify itself. I fully appreciate that there are many which it is difficult to justify on the ground of being necessary for the administration of justice. As the Attorney-General pointed out at an earlier stage, however, in many instances the existing situation arose because of bad timing by the recorder as to when he took his court. Some of them, quite properly, have been open to hostile criticism in that respect.

There have been recorders who have deliberately reduced their work to a minimum by adjusting the sitting to a date immediately following that of an adjacent court where all the cases had been dealt with, and there was nothing left for the recorder to do except to pick up his pair of white gloves. That matter could easily be remedied by some such regulation or enactment as the right hon. and learned Gentleman has put into the Clause. I would have preferred the matter to be left as it is for the time being, without the two months' limitation, for an opportunity to be given to each borough to see whether by an adjustment of its dates it could justify its existence. This would give an opportunity for full consideration and would allow each case to be considered on its merits.

It may well be that the Lord Chancellor in considering one of these applications will have before him figures for recent years and will say, "Only four or five cases have been tried at each sitting of this court over the last few years and, therefore, I abolish it," although by arranging different dates for the sittings of the court entirely different figures might be produced. I would prefer, therefore, that the opposite way of handling the matter should be adopted in order to give an opportunity for rearrangement of dates, and that recorder-ships should not be considered by the Lord Chancellor until they had taken this action; and it is against that background that the decision could be arrived at as to whether or not they should be abolished.

The Attorney-General

I do not know whether the House will allow me to reply to the points which were raised by the hon. and learned Member for Brighton (Mr. Marlowe) and by the hon. Member for Devizes (Mr. Hollis). I cannot help thinking that the right hon. and learned Member has failed to appreciate that the course he proposed—namely, that boroughs should have unlimited time within which to put forward applications for the retention of their recorderships and commissions of the peace—would make it quite impossible to implement the main provisions of the Bill within any set time-table. Until it has been settled whether or not a commission of the peace in a borough of under 20,000 inhabitants is to be retained, no arrangements can be made in regard to the magistrates' clerks' committee and the other arrangements for the appointment of a joint clerk and so forth which are contemplated and are part of the main structure of the Bill. If the Bill is to be brought into operation, it is quite obvious that there must be some time limit.

Mr. Marlowe

I did not suggest that there should be no time limit, but that the Lord Chancellor should approach the matter from the opposite direction and should consider each case on its merits. I would do away with the question of application altogether so that the Lord Chancellor can take action whenever he likes.

The Attorney-General

That is a quite unfair burden to put upon the Lord Chancellor and might result in his imposing on boroughs, courts which they no longer desired to maintain. The whole case which was put forward, and which we accepted on the Committee stage, was that there were some boroughs which urgently desired to retain their commissions of the peace and their recorders courts. If they cannot make up their minds within a limited period, I am afraid that those separate commissions and recorders courts will have to go. The Clause definitely throws the onus on the local authority, in consultation, I have no doubt, with the recorder, to say whether or not they consider that they come within the special provisions of this discretionary power. It is only in that case that the Lord Chancellor will be able to consider this matter.

Mr. Manningham-Buller

May I put to the Attorney-General a question with which, I think, he ought to deal? Suppose that the application is made towards the end of the two months—say, at about the end of next February—some time must elapse for the application to be considered, and perhaps the Lord Chancellor would want further information. I do not imagine that the application would be turned down because that information was not sent with it. What is to happen about the holding of quarter sessions in that borough in the first quarter of next year?

The Attorney-General

I had intended to deal with that. It is an important point which was touched upon by the hon. and learned Member for Brighton. The Lord Chancellor will obviously have to place himself in a position to deal with all the applications which may be made under this Amendment, and to have dealt with them before the Clauses of the Bill which would otherwise involve the abolition of the separate commissions of the peace and the recorderships come into operation.

The hon. and learned Member will recall that under Clause 45 there is provision for bringing different parts of the Bill into operation at different times, and we shall meet the situation by the use of that Clause. The position will therefore be that for the first two months after the passage of this Bill at all events, these courts will continue to exist because those Clauses which will eventually abolish them will not be brought into operation. On the other hand, the Amendment which we are seeking to put into Clause 10 will be brought into operation immediately. There will therefore be two months' interval during which the courts will continue and the commissions of the peace will subsist, but the local borough council will have to make up its mind. After that, the matter may well be delayed for a little time for the Lord Chancellor to decide how to act on the application He may want to have further information, etc. That situation will be protected by the power under the Bill not to bring into operation the Clauses abolishing the courts until he has disposed of all the applications made to him.

It will be quite clear that some period has to be set to the time in which the borough councils will make their application. The reason why two months has to be fixed—I avoided explaining it when I was previously addressing the House because it is rather complicated—is that if the financial provisions of Clause 27 are to be brought into force, as is hoped, on 1st April, 1951, the magistrates' courts committees must be set up at least six months before then in order that they may deal in the intervening period with the questions relating to salaries of the clerks, etc. on which their determinations will take effect on 1st April, 1951. Before the magistrates' courts committees can be set up under the Measure, the provisions of Clause 10 abolishing separate commissions of the peace and separate recorder-ships must have been brought into operation. The result is that unless we set back the whole administrative programme contemplated under this Bill these questions of what commissions of the peace are to survive have to be dealt with, and they have to be included or not included as the case may be in the area of the magistrates' courts committees, before the end of this financial year, which really leaves only two months.

I come to the point raised by the hon. Member for Devizes. The power taken enables the Lord Chancellor to make an extension of two months either generally or in particular cases and the reason why that power was included was two-fold. There might be some special reason in a particular case, or for one reason or another the administrative programme might be delayed and therefore there would be no need to insist even generally on the two months' period. I considered this matter very carefully because two months seemed a short time as a timetable to be laid down in the Clause, but subject to the power I have mentioned it appeared essential.

Mr. York (Ripon)

Does the Attorney-General consider that the Amendment precludes the Lord Chancellor from considering the case of liberties?

The Attorney-General

I do not think that liberties are covered by the Amendment. Now that I am on my feet I should add, to remove misconceptions, that when I said that the Lord Chancellor would only be able to deal with these cases exceptionally I did not mean that if particular boroughs satisfied the criteria laid down in the Clause they would even then only be treated exceptionally. It seemed to me, as I said in Committee, that only exceptionally would boroughs be able to bring themselves within the criteria.

Amendment agreed to.

Further Amendment made: In page 8, line 31, leave out "June," and insert "December."—[The Attorney-General.]


Amendment made: In page 9, line 25, leave out "1925," and insert "1949."—[The Attorney-General.]


5.45 p.m.

The Attorney-General

I beg to move, in page 10, line 38, at the end, to insert: (4) Notwithstanding the foregoing provisions of this section the confirming authority in any borough mentioned in Part III of the Third Schedule to this Act or in an order of the Lord Chancellor under section ten thereof shall be a joint committee of the borough justices and justices for the county in which the borough is situated (constituted in accordance with section four of the Licensing (Consolidation) Act, 1910), if and so long as it appears to the borough justices expedient having regard to the small number of the borough justices available to act as members of a confirming authority constituted as provided by subsection (2) of this section. This is in order to provide for licensing authorities which retain their commissions under Part III of the Third Schedule, or exceptionally under an order of the Lord Chancellor.

Amendment agreed to.

Mr. Deputy-Speaker (Mr. Bowles)

Mr. Manningham-Buller.

Mr. Marlowe

On a point of Order. Is it not intended to select the Amendment to Clause 16 which stands in my name—in page 13, line 33, at end, insert: (d) With the consent of the Secretary of State there may be a magistrates' courts committee for an area or any part of an area which at the end of June, nineteen hundred and forty-eight, constituted a petty sessional division consisting of two or more contiguous non-county boroughs if at the aforesaid date each of such boroughs had a population of thirty-five thousand or over.

Mr. Deputy-Speaker

That Amendment is not selected because it is out of Order. It would increase the charge on the counties.


Mr. Manningham-Buller

I beg to move, in page 15, line 8, at the end, to insert: (c) shall be subject to annulment by resolution of either House of Parliament. I think that this Amendment is in the right place although I have some doubts whether it should, with a slight alteration, be in line 1 or in line 8. I do not think this point was raised on the Committee stage. The right hon. Gentleman said that he would look at all these questions and I gather that he has had a talk about them with my right hon. Friend. I do not want to press the Amendment with any great vigour but it is a position which the right hon. Gentleman should be able to meet. It is a case in which it should be possible to pray against a statutory instrument. Clause 18 gives the Secretary of State power to alter petty sessional divisions, and that power is of course exercisable without objection when the local authorities agree. There is no likelihood of a Prayer in those cases in which what is done is done by local agreement, but the House will see that the Secretary of State can override the local authority. Subsection (3) says that the Secretary of State may make an order: either in the terms of the draft or with such modifications as he thinks fit; Where a committee do not want to do what he wants, that is, where it fails to comply with a direction order, or the Secretary of State is dissatisfied with the draft order which they have sent or the report they have submitted in pursuance of such a direction: he may by statutory instrument make such order as he thinks fit about the division into petty sessional divisions of the area to which the direction related. Where there is disagreement between the Secretary of State and the magistrates' courts committee representing the area as to the division of the area into petty sessions, and where the Secretary of State overrides the magistrates' courts committee, there ought to be power for those who represent that part of the country, wherever it may be, to raise the matter on the Floor of the House if they think fit to do so by putting down a Prayer against a statutory instrument. This power of the Secretary of State has to be exercised by a statutory instrument.

This provision really gives him very dictatorial powers if, as the Bill in its present form says, he can override the magistrates' courts committee as to the division of the county into particular petty sessional areas. He can override it by statutory instrument, and if he does that no one can say anything about it. He has complete power delegated to him under this Clause. We can ask Questions and move to reduce this Vote, and that sort of thing, but we can do nothing effective. I would suggest to the right hon. and learned Gentleman, who has been very good in meeting us on the earlier cases, that a case does exist for this one.

I think that in Committee, when the question of Clause stand part was being discussed, I ought to have drawn his attention to this argument in addition to the others. I doubt whether, until this Amendment was put on the Order Paper, he had applied his mind to this question. Perhaps he has not had the time. I am not complaining, I am apologising for not having raised this particular point earlier. Having made that apology, I hope that the right hon. and learned Gentleman will see that there is some substance in the point and that he will accept this Amendment to meet it.

The Attorney-General

The hon. and learned Gentleman has very fairly said that he did not raise this matter when we discussed the general position on Committee, but my right hon. Friend did then undertake to 'consult with hon. and learned Gentlemen opposite. He in fact wrote to the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe), and later had a talk with him about the matter, and this Clause was not one of those raised at that time. But my right hon. Friend has given the most careful consideration to the desirability of having this Clause made subject to annulment by resolution in either House since the Amendment was put down in the name of the hon. and learned Member for Daventry (Mr. Manningham-Buller). We have come to the conclusion that in this case, although we have been most anxious to meet, and have met the hon. and learned Gentleman on other Clauses, it would be inappropriate to make the powers of the Secretary of State subject to the negative resolution procedure.

The House will appreciate that in this matter the Secretary of State is dealing with questions which are really of local interest. He is concerned with matters which, at the most are ones of county administration in regard to the alteration of petty sessional divisions. Under the existing law, as the right hon. and learned Gentleman knows, this is a matter for quarter sessions, which can deal, without any reference either to the Secretary of State or to Parliament, with the alteration of petty sessional divisions. But the procedure under the existing law is very cumbrous.

This Clause institutes the new procedure by which the main responsibility for reviewing the county area and proposing alterations in the petty sessional divisions, if those are thought desirable, will repose with the magistrates' courts committee. That committee is required, in coming to a conclusion about these matters, to consult all the local authorities and the magistrates concerned, and to comply with requirements as to the notice to be prescribed, which it is intended should include a public notice of the proposals.

The final responsibility rests with the Secretary of State. He is given power to cause a local inquiry to be held in the matter, and no doubt he would exercise that power if it appeared that there was local disagreement, and he might have to act in a way which would result in imposing some decision of his own against the wishes of some part of the area concerned. We think that in those circumstances the local interests are fully protected under this Clause in regard to what is after all a local rather than a national matter. There is no reason why Parliament, which has no concern with this problem at all at present under the existing law, should require the right to annul the action of the Secretary of State.

The Clause provides every possible safeguard for the interests of the local authorities and ensures that local opinion is fully consulted and taken into account when an order is made. At the end of the day, after that has been done, and perhaps after a local inquiry has been held, the matter will still remain one of local concern. Moreover, if one were to add to the procedure under the Clause the further requirement that the order of the Secretary of State should be subject to the negative Prayer procedure in this House, there would be an additional delay of machinery which already will involve a considerable lapse of time before the Secretary of State is able to make his order. Indeed, there are some people who think that the Clause already provides for too much delay and too much local inquiry and consultation with local interests—

Mr. Manningham-Buller

And not enough centralisation.

The Attorney-General

—and I hope that on reflection the hon. and learned Gentleman will feel that he need not press this Amendment.

Amendment negatived.


Mr. Deputy-Speaker

The next Amendment, in page 18, line 7, in the name of the Home Secretary, is to be moved with two alterations in the wording on the Paper, namely, in paragraph (b) to delete, "in an employment," and after the word, "made," to insert: "after he has had five years' service as such an assistant and."

Mr. Ede

I beg to move, in page 18. line 7, at the end, to insert: (3) A person who has not been bound by and served under articles as required by paragraph (a) of section fourteen of the Solicitors Act. 1932, but has served as assistant to a justices' clerk, may be admitted a solicitor of the Supreme Court, subject to the following provisions—

  1. (a) the person to be admitted shall have had not less than ten years' service as such an assistant and, out of that service, not less that five years shall have been before the 'first day of January, nineteen hundred and sixty, and not less than the required number of years shall have been approved service;
  2. (b) for the purpose of the foregoing paragraph "approved service" means service either as an articled clerk or with respect to which the person to be admitted has obtained from the Law Society a certificate under this section on an application made after he has had five years' service as such an assistant and before the said first day of January, and the required number of years of approved service is the number which that person would, apart from this subsection, be required by the said Act to serve under articles entered into at the date of that application:
  3. 2568
  4. (c) the Law Society may grant a person a certificate with respect to service in any employment as assistant to a justices' clerk if they are satisfied that at the time of granting the certificate it is not practicable for him to serve as an articled clerk in that employment, and the certificate shall relate to any service by him in that employment after that time;
  5. (d) subject to the foregoing paragraphs, the Solicitors Acts, 1932 to 1941, shall apply, with any necessary modifications, in relation to a person's certificate under this section and a person applying for or obtaining such a certificate as if the certificate were articles of clerkship and the service to which it relates were service under those articles."
We had a full discussion on this Amendment earlier this afternoon and it then commended itself generally to the House. I do not think it necessary to say anything further in support of it. The alterations which you have read out, Mr. Deputy-Speaker, make known the essential difference to the Clause, and they are the result of negotiations I mentioned earlier which have been effected at very short notice.

Amendment agreed to.

Mr. Ede

I beg to move, in page 18, line 20, to leave out "fifty-five" and to insert "sixty."

This also carries out an arrangement which is really part of the previous Amendment.

Amendment agreed to.


Amendments made: In page 19, line 15, leave out from beginning, to end of line 20.

In line 20, at end, insert: and section four of the Married Women (Maintenance) Act, 1949, shall apply to orders under any enactment directing payment to a justices' clerk as collecting officer on behalf of any person as it applies in relation to orders under the enactments mentioned in that section directing payment to him on behalf of a married woman.

In line 26, leave out "1925," and insert "1949."

In line 30, leave out, "under the said section thirty."

In line 32, at end, insert: Provided that, in relation to an order made under section five of the Licensing Act, 1902, on the application of the husband, there shall be substituted for the reference in this subsection to the applicant for the order a reference to his wife.

In page 20, line 9, after "personally," insert: and in relation to an order made under paragraph (c) of subsection (2) of section five of the Licensing Act, 1902, and not directing payment to the applicant's wife personally.

In line 11, leave out from "1914.' to end of subsection.—[Mr. Ede.]

6.0 p.m.

Mr. Deputy-Speaker

Mr. Ede—the Amendment in page 45, line 42.

Mr. Manningham-Buller

On a point of Order. On the question of Clause 31, the Minister said during the Committee stage that he would reconsider that provision and an Amendment has been put down in my name to leave out that Clause so as to hear the result of that consideration.

Mr. Deputy-Speaker

Mr. Speaker's marked Order Paper shows a query there. I understand that during the Committee stage the Amendment was withdrawn after 25 minutes' discussion.

Mr. Manningham-Buller

It was withdrawn when the Minister said that he would look at the position again. I have the passage in HANSARD from which I can quote.

Mr. Deputy-Speaker

The hon. and learned Gentleman may move the Amendment.


Mr. Manningham-Buller

I beg to move, in page 32, line 14, to leave out Clause 31.

This Amendment was tabled in this way to find out why it was that the right hon. and learned Gentleman has come to the conclusion that Clause 31 was so perfect that it could not be improved upon. He will remember that earlier I drew attention to the fact that under subsection (2) the requirement of seven years' practice at the Bar immediately before appointment as a stipendiary magistrate was dispensed with, and that in future it would be quite enough for a person to become a solicitor, to be called to the Bar, never to practise either as a solicitor or as a barrister, and still be eligible for appointment as a stipendiary magistrate. That is setting a wide field.

Mr. Harrison (Nottingham, East)

Is the hon. and learned Gentleman moving the Amendment to delete Clause 31?

Mr. Manningham-Buller

I am sorry if the hon. Member has got lost. I will try to put him on the right road again.

Mr. Harrison

We were lost between the Amendments that were moved formally and the one which the hon. and learned Gentleman is now moving.

Mr. Manningham-Buller

I am sorry, that the hon. Gentleman is in such a fog. I fear that it may be a chronic condition, but I hope that it will ultimately, disappear.

Mr. Harrison

The position is clear now.

Mr. Manningham-Buller

I am glad that the fog has been removed. If there are any other questions I can answer I shall be glad to do so.

I should like to ask why the Clause has not been amended to make it clear that no one can be appointed to one of these responsible positions unless he has practised either as a solicitor or as a barrister. That requirement is not in this Clause. In, my opinion, it is a necessary requirement. It would be very bad if the field were so enlarged that anyone following another profession—a civil servant, a soldier or a sailor—could qualify as a barrister or as a solicitor and could carry on in their old profession for another seven years and become eligible for appointment. I am sure that the right hon. and learned Gentleman does not intend that. As a matter of drafting, I think he ought to have reworded the Clause to make it clear that that cannot be done. I must say that I am disappointed that he has not done so, and I should like to hear his reasons-for the omission.

Mr. Marlowe

I beg to second the Amendment.

It is rather unsatisfactory to leave this, matter in its present position, because the Clause as drafted would allow the appointment of anybody who has never practised at all. It has always been part of the requirement of the law for appointment to the Metropolitan magistrates' bench that a man should have been a barrister in practice—not merely in practice but in practice in the seven years immediately preceding the appointment. I remember particularly this matter arising when an appointment was made during the war. I took up the question on that occasion. There was some question about whether the person appointed had actually practised in the period immediately preceding the appointment. It was suggested to me at the time that it was an unwise subject to pursue, inasmuch as many people were away at the war and if there was a literal requirement of having been in practice immediately before appointment, then on their return from war service people might be debarred from appointment because they had not been in practice but had been engaged on war service.

It always seemed to me that the proper answer was to introduce legislation to deal with the point. It is a subject which would have met with general sympathy everywhere. The principle ought to be maintained that these appointments should require the person appointed to have been in practice and to have been in practice up to the time of appointment. Particularly is that so of the stipendiary magistrates' bench in Metropolitan police courts, because theirs is a difficult task. It is one which they must perform without great assistance from advocates. Very often they have to deal with cases with-out any advocate appearing on either side. They have to grasp rather quickly a number of different cases of a very varied type one after the other. In a morning's work they may be faced with a dozen different problems, all of them requiring not mere knowledge of law but that grasp and that quickness in dealing with the matter which can come only from constant years of practice and which the lawyer acquires almost as his second nature.

It would be most unfortunate if a person engaged in some other entirely different occupation merely by reason of having qualified as a barrister should be capable of appointment, although he has had no experience whatever in practice. There are vast numbers of people who read for the Bar and pass the examinations and then go to some other occupation and never practise at all. I am bound to say, judging from some of those whom one has seen, that one would hesitate very much before appointing them to the magisterial bench. I hope that the Attorney-General will agree that this is a principle which ought to be safeguarded and that, unless some undertaking is given, the Clause as it stands ought to be deleted.

The Attorney-General

We discussed this matter rather fully during the Committee stage of this Bill, and I think I promised the hon. and learned Member for Daventry (Mr. Manningham-Buller) that I would look into the position. I have looked into the matter and I hope that I shall not need to take up a great deal of time now in reviewing the position. I accept fully the general argument that candidates ought not to be appointed to positions of this kind without having had practical experience. I would add also what I think the hon. and learned Member's original Amendment in Committee did not contemplate, that it ought to be practical experience in this class of work—criminal experience—which should be taken into acount. The hon. and learned Gentleman's Amendment that we considered in Committee provided only for practical experience in the practice of the law and not in any particular branch of it. I think that one can, so far as legal provisions are concerned, only provide for practical experience in the practice of the law.

The view put forward by the hon. and learned Member for Daventry and the hon. and learned Member for Brighton (Mr. Marlowe) would be satisfied if one put in a provision that the barrister or solicitor concerned must have had experience in practice as such for seven years, notwithstanding the fact that the practice might have been in relation to patent or Chancery matters which could not fit him in the slightest degree for the duties of a stipendiary magistrate. We take the view that the Lord Chancellor in making these appointments should, of course, have regard to the extent to which the candidate for appointment has had practical experience in the practice of the law and, in particular, in the practice of that branch of it with which he will be concerned if and when he comes to be appointed as a stipendiary magistrate.

Mr. Marlowe

That is precisely the argument which I used on qualified clerks, and which the right hon. and learned Gentleman rejected.

The Attorney-General

Yes, but I am dealing with the particular argument which the hon. and learned Member put forward with regard to this Amendment, and I do not think it would be useful to take up an argument which he used in regard to some other Amendment. We have looked at this matter and have come to the conclusion that it would not be useful to include the Amendment in the Bill, because it would not secure the kind of experience which all hon. Members agree it is desirable that stipendiary magistrates should have. To include any Amendment of that kind would be quite inconsistent with the existing law on the matter. It really would be impossible to require that candidates for appointment as stipendiary magistrates in the Metropolitan district should have these qualifications without a similar requirement in regard to stipendiary magistrates outside the Metropolitan district, in regard to recorders or in regard to the holders of high judicial appointments.

These matters have hitherto been regarded as matters which might be safely left in the hands of the appointing authority, in this case the Lord Chancellor, who will have regard to all the circumstances and all the qualifications, and will not doubt pay the greatest attention to the question whether or not a candidate has had practical experience of the work of a magistrates' court. I hope that, in these circumstances, the hon. and learned Gentleman will accept my assurance and will see fit to withdraw his Amendment. I would also point out a matter which has caused some confusion on this side of the House: that whereas in the Committee stage the hon. and learned Gentleman sought only to delete subsection (2) of this Clause, he now seeks to throw the whole Clause out of the Bill, and, according to my instructions, that is similar to throwing out the baby with the bath water.

Mr. Manningham-Buller

I can speak again only with the leave of the House. May I point out that it was not my desire to inflict any cruelty on the baby, but that I thought this to be the simplest way to raise this particular point. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


Amendments made: In page 45, line 42, at end insert: or in any order of the Lord Chancellor under section ten of this Act.

In page 46, line 42, leave out from "for," to "shall," in line 44, and insert: any of the cinque ports, other than a borough losing its commission.

In line 49 at end insert: (2) This paragraph shall apply in relation to the ancient town of Rye as if it were one of the cinque ports.

In page 49, line 39, leave out from "of," to "which," in line 40, and insert "any borough."

In line 44 leave out "those boroughs," and insert "any such borough."—[The Attorney-General.]


Amendment proposed: In page 54, line 26, leave out from "Cambridge" to end of Schedule, and insert:








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