Clause 2.—(LORDS COMMISSIONERS OF JUSTICIARY (CIRCUIT ALLOWANCES).) (Hansard, 19 February 1952)

§ Mr. John Wheatley (Edinburgh, East)
On a point of order. There is an Amendment in my name in relation to Clause 2, the purpose of which is to have the additional emoluments granted under the Clause to the Scottish judges antedated to the date at which the increased emoluments of the English and Northern Ireland judges take effect. It seems fair and equitable that that should be done and I should like to know for what reason the Amendment is out of order.

§ The Chairman
If the right hon. and learned Gentleman would take another look at the Money Resolution he will see that paragraph (a) covers only the Schedule at the bottom of the Resolution. By his Amendment he is trying to bring into the Bill something which is not covered by the Money Resolution. The Government have had to cover their own Clause 1 (3), by including it in the Money Resolution. The right hon. and learned Gentleman is asking for something to be done which the Government could not do unless it were put in their Money Resolution. The right hon. and learned Gentleman's Amendment is, therefore, out of order, and I did not call it.

§ Mr. Wheatley
I am obliged to you, Sir Charles, for the explanation. It only makes it all the more regrettable that the Money Resolution was drawn in its present form, to which I objected.

§ Mr. Emrys Hughes (South Ayrshire)
Before we accept this Clause, we should have some elucidation from the Lord Advocate as to exactly how the new scale of expenses will affect Scotland. The Lord Advocate may remember that on the last occasion I put what I thought was a very relevant question to him, and he looked as if I had asked a very indecent question indeed, and then he disappeared. Later, I sought further elucidation from the hon. and learned Gentleman the Attorney-General. At Question Time on 4th February, I asked the Attorney-General: …what allowances, in addition to their salaries, are received for circuit court expenses for judges in England and Wales; and what is his estimate of the cost of the proposal that such allowances shall apply to Scotland. I secured information on that occasion which made me look upon this Clause with further suspicion, because the Attorney-General said: Since the year 1884, allowances at the rate of £7 10s. a day have been paid to H.M. judges going circuit in England and Wales for every day in which they are necessarily absent from London. In Scotland, where the circumstances are very different, —and I agree that they are different— the allowances for circuit expenses which will be payable if Clause 2 of the Judicial Offices (Salaries, &c.) Bill becomes law in its present form, will be determined from time to time. The annual cost is unlikely to exceed £450. I asked a supplementary question: Is the hon. and learned Gentleman aware that if £7 10s. or anything like it is allowed for Scottish judges coming to Ayr, public opinion will want to know whether they are going to the High Court or to the races?"—[OFFICIAL REPORT, 4th February, 1952; Vol. 495, c. 630.] Could we have an assurance that Scottish judges will not receive for circuit expenses what I think is the very excessive sum of £7 10s. a day? Even in these days, even with copious allowances for whisky, it is impossible to justify a judge receiving £7 10s. a day in allowances.

§ Mr. Wheatley
On a point of order. Is it right to suggest that an allowance for whisky is given to Scottish judges? I thought it was a rule of the House not to allow murmuring of judges.

§ The Chairman
It does not matter whether they spend their expenses on whisky or lemonade.

§ Mr. Hughes
My case is hypothetical. If allowances are not made for whisky—and I should not dare to make a suggestion to the contrary—then the argument of the former Attorney-General surely means that not so much as £7 10s. a day would be required. If either the present Lord Advocate or the ex-Lord Advocate are raised to the judges' bench they will, presumably, live in Edinburgh. Supposing they travel to Glasgow. Are they to be paid, in addition to their salaries, a sum of £7 10s. a day? If they stay in Glasgow for four days in a week, are these judges to be entitled to allowances of £30 for the four days?
If that is not to be the situation, can we be told exactly what it is? I do not wish to be ungenerous to the judges, but I suggest that these circuit expenses should approximate more closely to the expenses incurred by members of local authorities when they go on their business. We are not entitled, in what appears to be a non-controversial Bill, to give very considerable allowances, unjustifiable out-of-pocket expenses, to judges at a time when we are being urged on all occasions to exercise the maximum of discretion and economy. I ask the Lord Advocate to give us some assurance that this excessive scale, which apparently prevails in England, will not apply to Scotland and that something more reasonable will be put in the Bill.

§ Mr. Anthony Marlowe (Hove)
I should not have intervened in what appears to be a purely Scottish part of the Bill but for the rather backhanded way in which the hon. Member for Ayrshire, South (Mr. Emrys Hughes) made an attack upon the allowances paid to English judges. I imagine I should be out of order if I pursued the matter very far, but I hope an opportunity will be given to answer what the hon. Gentleman said.
He suggested that these allowances should be similar to the scale of allowances in the case of representatives of local authorities. It is evident that the hon. Gentleman is not aware of what has to be paid by English judges out of the allowances given to them.

§ Mr. Emrys Hughes
Tell us the worst.

§ Mr. Marlowe
I cannot go into detail, but judges have to take with them a retinue, which is extremely expensive; they have to maintain the very considerable dignity of Her Majesty's judges on circuit; they have to entertain on quite a lavish scale; they have to meet various high officers, including the sheriffs of the county; and they are put to considerable expense indeed. I think that anybody who has any knowledge of the matter will know that the amount of these allowances, which was fixed 60 or 70 years ago, is by no means excessive in modern circumstances. Indeed, many judges find it difficult to carry out the duties which are required of them on these allowances.

§ Mr. Rankin (Glasgow, Tradeston)
I do not propose to interfere in any way with the manner in which a judge may dispose of his expenses—whether he chooses to utilise them along the lines suggested by my hon. Friend the Member for Ayrshire, South (Mr. Emrys Hughes), of on the lines suggested by you, Sir Charles. I leave that to their choice.
However, there is one point on which I feel we should have some enlightenment. Subsection (2) states that the allowances are payable out of moneys provided by Parliament. I submit that if we are to make these funds available to meet these expenses we ought to have a rough idea of the total amount of money that we have to provide.
I submit that that is a figure of which some assessment ought to have been made by the Lord Advocate or his learned colleague the Attorney-General sitting beside him, and I feel we are entitled to receive an answer to the question. What is the total sum that the Government believe is necessary to meet this outlay?

§ The Attorney-General
I do not think that the hon. Gentleman could have heard what his hon. Friend the Member for Ayrshire, South (Mr. Emrys Hughes) said. He referred to an answer to a Question, in which he was told that the estimated figure was £450 a year.

§ Mr. Rankin
A year?

§ The Attorney-General
Yes.

§ Mr. Wheatley
I think it is desirable that I should say a word in view of the discussion that has taken place, because, 53 in my opinion, this is a proposal that is fully justified and of which I personally fully approve. When the salaries of the Lords Commissioners of Justiciary, the Judges of the Court of Session, were consolidated by the Criminal Procedure (Scotland) Act, 1887, it was specifically enacted that the salaries would include circuit expenses that had been paid prior to that date. The normal salary of a judge of the Court of Session is only £3,600 a year, compared with the £5,000 which is paid to English High Court judges, and the salaries of the Scottish judges have not been increased since 1887, despite the fact that the circuit expenses which they have to bear out of their salaries have become increasingly heavier as the years have passed.
It has to be remembered, as my hon. Friend the Member for Ayrshire, South (Mr. Emrys Hughes) has pointed out, that the English judges do get circuit expenses at a fairly substantial rate and that at the present time the Scottish judges do not; and I cannot see that there is any justification in principle for the continuation of that differentiation. When a Scottish judge goes on circuit he does not indulge in the wholesale entertainment referred to by the hon. and learned Member for Hove (Mr. Marlowe), but he must have appropriate accommodation in an hotel in the circuit town to which he goes.
He does not only require a bedroom, but he requires a sitting room in which to work in the evenings, as the nature of the work on which he is engaged is highly confidential and makes it undesirable for him to perform that work in the public rooms of a public hotel. He has to prepare his examination of the evidence that he has heard in the case. He has got to go into the law to enable him to prepare his charge to the jury. He is dealing with confidential documents. Manifestly, that is not the type of work which can be done in the public rooms of an hotel.
Moreover, I think it is desirable that he should be protected in a way from the embarrassment of being spoken to in the public rooms of an hotel by people who indiscreetly may wish to discuss with him the case he is trying.
4.45 p.m.
In these circumstances I think that the case for privacy for the judge is fully 54 made out, and, having regard to the fact that he has to bear the expenses of that out of his own pocket at the present time this change, in my opinion, is overdue. I did make inquiries at the time when this was first mooted, and I found that the charge in an hotel in any of the big centres for the type of accommodation required was quite considerable.
I think that in all other branches of the public service such expenses are met out of the public funds, and also in industry, be it public industry or private industry, expenses of this nature, when people go from their base, are always met out of company funds. I think that, when one remembers that, the principle here is entirely justified. On the merits, therefore, I can see no justifiable ground for opposition to the proposal; in fact, I am very glad that I was associated with the negotiations with the judges last summer which brought about this badly needed reform.
I have only one other point to make. It is in reference to the nature of the Clause and the way in which it has been drafted. I am sorry that it does not follow the pattern of the Clause which refers to the English judges, in that it does not make the payments retrospective to 1st July, 1951. I tried to embody that protest in an Amendment which you, Sir Charles, ruled out of order, and, accordingly, I cannot develop it. Subject to that minor criticism—and I leave my protest in this comparatively mute and tacit form—I commend this Clause to the Committee.

§ Mr. James H. Hoy (Leith)
It is a little surprising that two of my hon. Friends should be pressing the Attorney-General to declare what is to be the law in Scotland in regard to this matter. I ask the Lord Advocate to say, without ambiguity—because, after all, the Lord Advocate's Department, along with the Scottish Office, must have made some estimate of what this is to cost, and must have concluded how many of these judges would be travelling on circuit, and at how much per day they were to be paid —what those estimates are. I am certain that if the right hon. and learned Gentleman could tell us this information he would remove any misconceptions about what the allowances are which are to be paid to the Scottish judges.

§ Mr. Scholefield Allen (Crewe)
As, from these benches, certain observations have fallen I think it is incumbent on some of us who practise in the law to say why we support this Clause, and to state that we support it. It has always been regarded as undesirable in this country that judges should stay in hotels at all, and, therefore, in all the circuit towns there was provided something rather in the nature of a Victorian mansion for the judges.
The judges have to provide the staff for the mansions—the cooks, or any of the servants—and these large establishments have to be maintained by Her Majesty's judges during the course of the assizes. Her Majesty's judges are expected to provide entertainment on a fairly lavish scale for the local dignitaries.

§ Mr. Emrys Hughes
On a point of order. In this debate, up till now, three legal Members have taken part. Is it not proper for legal Members, who may, presumably, become judges at some time, to declare their interest?

§ The Chairman
That is not necessary at the moment.

§ Mr. Scholefield Allen
I would disclaim any such interest—certainly, such a premature interest.
However, I wish that there should come from this side of the Committee a voice in support of the proposal to pay these allowances. I think that the allowances, if anything, are inadequate at today's rates. What people so often fail to remember is that these salaries and allowances were fixed in other times. We on these benches have pressed for increased salaries and increased allowances for all manner of persons, but the judges have not had such increases and are still having to provide the same services with the same old allowances.

§ The Lord Advocate (Mr. J. L. Clyde)
Perhaps I might add a word or two on this Clause, in view of the questions which have been asked about the actual amounts. I ask the Committee to agree to this Clause, and I am obliged to the right hon. and learned Member for Edinburgh, East (Mr. Wheatley), for the help he has given. I shall not delay the Committee by going into details to justify it; I merely want to give the figures; for which more than one hon. Member has asked. There is no intention, under this 56 Clause, to make extravagant allowances. The object is to secure, as far as possible, the covering of the outlays to which the judges in Scotland are put on criminal circuits. The Clause is, therefore, drawn in elastic form, so that the allowances are to be such as the Secretary of State may from time to time, with the concurrence of the Treasury, determine. We have made an estimate of what we think these expenses will be, and taking into account the fact that the judge will have railway fares to pay, and that where the sitting lasts more than one night he will have hotel accommodation to provide for, the expenses it is estimated he will, on average, require to meet are something in the neighbourhood of two guineas where he does not require to stay overnight and five guineas where he has to stay overnight.
Hearing those figures hon. Members will realise that, taken on the average, where there are journeys sometimes to Aberdeen or Inverness and other journeys which are shorter and less expensive, say, to Glasgow, these are in no way excessive. The total sum it is estimated will be required—and I think this was what the hon. Member for Leith (Mr. Hoy) wanted to know—to be provided by Parliament per annum in respect of these expenses is £450. That, of course, is not for one judge but is spread among something like 12 judges.
Accordingly, the amount involved here is not excessive. It is, in my view, an expense which should be met in this way, and I consequently recommend the Clause to the Committee.