§ Order for Second Reading read.
§ 7.23 p.m.
§ The Secretary of State for Scotland (Mr. William Ross)
I beg to move, That the Bill be now read a Second time.
This Bill is one of the consequences of local government reform. Under the Local Government (Scotland) Act 1973 the burgh and the county, as local government units, cease to exist on 16th May 1975. Thus, the administrative structure on which the existing burgh and justice of the peace courts are based is removed, and fresh arrangements are needed for the disposal of summary criminal cases.
It may be for the convenience of the House if, before describing the Bill in detail, I give some account of the steps leading up to it. The best starting point is probably the report of the Royal Commission on Local Government in Scotland, published in September 1969. The Royal Commission did not make detailed recommendations about the administration of justice but expressed its belief that the lay courts of summary jurisdiction could conveniently be reconstituted within the new structure of the district authorities and in association with them. That is in paragraph 1102 of Cmnd. Paper 4150.
As the House will appreciate, the Bill accords very closely with the commission's belief that the courts could be reconstituted within the new structure of district authorities. There were, however, several other steps—or, should I say, false starts?—between the commission's report and the Bill. In April 1971 the then Secretary of State said that the existing justice of the peace system should be developed with stipendiary magistrates appointed by the Crown in large centres of population to meet the need for a new system of courts after the reform of local government. A working party was set up which carried out a detailed examination of the existing arrangements and considered various aspects of the proposed new system. A White Paper called "Justices of the Peace and Justices' Courts" was presented to Parliament in March 1973. It took account of the working party's 1464 report and proposed a system of justices' courts based on the area of the island or district authority but financed by the Government and staffed by officers of the sheriff court service. Even then, in March 1973, the deadline of May 1975 was not too far distant, and much administrative work remained to be done.
The proposals were strongly criticised because they made no arrangement for the provision of legal advice to the lay bench. The clerk of the court, provided by the sheriff court service, would, like the bench, have had no legal qualification. The then Government decided to try again, and a second set of proposals was announced in October 1973. They did not attempt to deal with this main criticism but performed a complete volte face—certainly in my view—without adequate explanation. Those of us who were in the House at the time remember that it was done in the form of a Written Answer in Hansard. Instead of the strengthened lay court of the White Paper, they proposed to abolish the centuries-old tradition of lay participation in the administration of justice and transfer all the work done in the existing lay courts to the sheriff summary court, strengthened by the appointment of a new type of lesser professional judge.
Although no Bill to implement these proposals had been introduced, they still held the field when we came to office at the beginning of March 1974. We therefore, had to act quickly. We noted that the previous administration's White Paper proposals had come unstuck not because the vast majority of people objected to lay justice—far from it—but on the simple point that lay courts require a legally qualified clerk and that was not what the White Paper proposals would have given them. We noted also that the abolition of the lay courts subsequently proposed by the previous administration had not been well received in Scotland except amongst certain sections of the legal fraternity—no surprise there.
My colleagues met representatives of the local authority associations who represented strongly in favour of lay participation in the administration of justice and emphasised the part played by local authorities and their members in the existing system. They put forward a 1465 strong case—as, I am bound to say, did the previous Government's White Paper—for the continuation of lay judges in the lower courts. By July, I was ready, in consultation with my right hon. and learned Friend the Lord Advocate, to announce my proposals. It was clear to us that what was required, and what would be most acceptable to the Scottish people, was a continuation of lay courts with legally qualified clerks and the defects of the existing courts removed—and there are defects.
§ Mr. Malcolm Rifkind (Edinburgh, Pentlands)
I am interested in what the right hon. Gentleman is saying. Will he say whether there were any representations from anyone other than local authorities to retain the lay system of justice?
§ Mr. Ross
We could go on like this, all along the line.
We recognise that there were defects in the old system. In too many cases the existing magistrates receive insufficient training for the work they are called upon to do. The criminal legal aid scheme does not extend to these courts and no accused person before them, therefore, is able to obtain legal aid. The public prosecutors in the 280-odd existing lay courts are not members of a service and are not subject to direction by the Lord Advocate.
What the present Bill does is to provide for a continuation of lay summary justice in Scotland and, at the same time, to make provision for the removal of the defects in the existing system.
One of the most important features of our proposals and one which has been widely welcomed is the emphasis placed on the provision of training for the justices of the peace. All justices will be expected to accept training appropriate to their experience, if any, and there is a power in the Bill to disqualify any justices who fail to accept training from sitting on the bench. This will apply not only to new justices but to existing justices and burgh magistrates, and to the justices 1466 to be appointed by district councils, to whom I shall refer later.
Lack of training requirements and facilities for the judges of the existing lay courts is one of the great weaknesses at present, and those powers are designed to remedy this situation. In order to provide an immediate stimulus, a training officer will be appointed by the Secretary of State.
Legal aid at an estimated cost of £130,000 annually will be available from the setting up of the courts from 16th May 1975.
Under the Bill my right hon. and learned Friend the Lord Advocate will take over, through the procurator-fiscal service, prosecution in these courts. The take-over will be completed by 16th May 1976.
As the House knows, this Bill was introduced in another place on 13th November last year. The Bill provided for the appointment of judges from three sources—first, the burgh magistrates in office on 15th May 1975; secondly, nominations by islands and district authorities; and, thirdly, existing justices of the peace.
In Committee in another place, however, the provisions in Clause 11 on nominations of justices of the peace ex-officio by islands and district authorities were removed, against the strong advice of my noble Friend the Minister of State, who gave a clear warning that we would seek to restore these provisions.
As this is the first opportunity for me to comment on the matter, I wish to support what my noble Friend said and to repeat that we propose in Committee to restore these provisions in their original form.
The Bill was further amended in another place on Report, when an addition was made to Clause 5, against the advice of my noble Friend. That was in relation to the Secretary of State's duty to appoint stipendiary magistrates. Again, we shall propose a suitable amendment in Committee.
§ Mr. James Dempsey (Coatbridge and Airdrie)
Will the appointment of ex-officio magistrates include police judges who were attached to the former burghs?
§ Mr. Ross
That is a good point. There is a measure of doubt whether "magistrates" includes police judges. Police judges tend to be the most experienced of the magistrates in the present system. We shall make it absolutely clear that they are covered by moving an appropriate amendment in Committee.
I turn now to the detailed provisions of the Bill. Part I provides for the setting up of the system of district courts on 16th May 1975. There will be a district court for each commission area, except where the Secretary of State otherwise directs. A commission area is defined in Clause 26 asa district or islands area within the meaning of the Local Government (Scotland) Act 1973.There are one or two rural areas where there are virtually no burgh or justice of the peace courts at present because there are so few criminal cases to be dealt with. Those few are taken in the sheriff court. If the local authorities concerned take the view that a district court would not be necessary, I shall be prepared to consider directing accordingly, though I would not envisage that the power of direction would be used to any great extent.
Clause 1(2) transfers to a justice of the peace functions of burgh magistrates not otherwise provided for and the remainder of this clause provides for proceedings to be continued smoothly over the transition to the new system and for the transfer of records and documents.
Clause 2(1) provides that the commission area shall be the district of the district court and that the places at which it sits and the days and times when it sits shall be determined by the local authority concerned.
Clause 2(2) provides that the bench shall be constituted by a stipendiary magistrate or by one or more justices. This allows for the maximum flexibility. Scotland has a tradition of a single burgh magistrate on the bench, but the tradition is for two or more justices to sit together in the justice of the peace court. The Bill allows for local decisions on these matters.
Clause 3(1) gives the district court the jurisdiction and powers of the existing courts. Under subsection (2), when the court is constituted by a stipendiary magistrate it will have, in addition, the 1468 summary criminal jurisdiction and powers of a sheriff. This preserves the present position in the case of a burgh court constituted by a stipendiary magistrate.
Subsection (3) raises from £50 to £100 the fine which can be imposed by the lay court on convicting a person of a common law offence. Since the level was last raised in 1963, this increase is required to take account of the change in the value of money.
Clause 4 is concerned with procedure and practice and applies the existing rules of procedure and practice to the new courts. The High Court is given power to regulate procedure and practice in the district courts.
Clause 5 provides for the appointment of stipendiary magistrates. Since, as I have indicated, it is bound to be debated in Committee I shall not enter now into any argument about its scope. There is room for argument over the extent of the powers which the Secretary of State should have under this clause. We think that subsection (4), which was not in the Bill as we drafted it, goes too far.
Clause 6 is an important clause, concerning prosecutions. We have decided that prosecution in the new courts should become the responsibility of the procurator-fiscal service. The Crown Office has already been in touch with local authorities about the areas in which the procurator fiscal will be able to take over prosecutions from the beginning of the new system.
I am pleased that my right honourable and learned friend the Lord Advocate has felt able to take over the entire responsibility. This will be done in two phases. The first, from 16th May 1975, will cover about two-thirds of the commission areas. The second, from 16th May 1976, will cover all the remaining areas. Thus, the provisions in subsections (2) and (9) relating to district prosecutors are essentially transitional.
Clause 7 requires the local authority to appoint a clerk of the district court who shall be legally qualified. The local authority associations have already confirmed that authorities will be willing to provide staff and at their request the clause is drafted to allow for part-time appointments and for the employment by agreement of an officer of a regional council.
1469 Clause 8(1) requires a local authority to provide suitable premises and facilities for the purposes of the court. Subsection (2), without prejudice to the general duty, eases the transition to the new system by providing that premises used to any extent for the purposes of the existing courts should continue to be made available by the authority concerned.
Part II of the Bill is concerned with justices and clerks of the peace. Much of it is re-enactment of existing statute, and it may be sufficient if I describe briefly the new provisions in this part of the Bill. At present the appointment of justices is effected by the inscription of their names under the Secretary of State's authority in the commissions of the peace which have been issued in each county. Under Clause 9 from 16th May 1975 new commissions will be issued for district and island areas. Names will not be inscribed in these commissions, but appointments will be made by instrument signed by the Secretary of State.
Clause 10 provides for the appointment as justices of the peace of burgh magistrates holding office immediately before 16th May 1975. Such justices and those already holding office will be treated as though they had been appointed under the provisions of Clause 9.
In my announcement of the Government's proposals on 15th July 1974 I said that we intended that all police judges in office on 15th May 1975 would also be appointed justices of the peace as in many areas they are the most experienced judges in the existing courts, having generally been bailies before they became police judges.
Some doubt has been expressed whether the term "magistrate" in Clause 10 would cover police judges and, in order to put the issue beyond doubt in Committee we shall propose an amendment to include a specific reference to police judges.
§ Mr. Dempsey
This is a most important point. I should like publicly to thank my right hon. Friend for such profound consideration, but will he say, since a magistrate may act at the moment as a temporary justice of the peace, whether at the time of the dissolution of the burghs he intends the appointment of justices of the peace to be permanent?
§ Mr. Ross
It will be permanent within the restrictions of age and everything else. The retirement age for JPs is 70. I do not know whether there is any such restriction in relation to bailies or police judges.
Clause 10 also contains provisions about the determination of the commission areas in which justices are to hold office. Clause 11 in its amended form provides that all existing justices who hold office by virtue of any other office will cease to do so on 16th May 1975. As I have already said, we hope to restore to this clause the provisions on nomination of ex-officio justices by district and islands authorities which were removed in another place.
Clause 14 confers on the Secretary of State a new power to make schemes and provide courses for the instruction of justices. Justices' committees to be appointed under Clause 16 will be required to implement and administer the schemes. All justices will be expected to accept training appropriate to their experience and under Clause 15 it will be possible for the Secretary of State to disqualify any who fail to accept training from sitting on the bench.
Clause 16 on justices' committees is a new provision. There is no precise equivalent at present to the proposed justices' committee who under subsection (1) will be responsible for advising and assisting the local authority on matters relating to the administration of the court. The justices' committee will also approve the duty rota of judges and have special responsibilities for training of justices. The justices will elect the committee annually but any stipendiary magistrate will be a member of the committee by virtue of his office. Although Clause 17 is an important one, dealing with allowances, it is essentially a re-enactment of existing law to fit the new arrangements.
Clause 18 provides for the appointment of a clerk of peace by the islands or district authority. This name is being retained for reasons of tradition; the duties of the new clerk of the peace are those of a clerk to the justices as a body and are listed in subsection (4). This clause, like Clause 7 on the clerk of the court and Clause 22 on the clerk to the licensing court, allows for a full-time or part-time appointment and for the 1471 appointment by agreement of an officer of a regional council. Thus the local authorities are responsible on the same basis for three appointments under the Bill; there is nothing to stop the same person being appointed to all three, or to two of them, according to local circumstances. The existing office of clerk of the peace will be discontinued and there is due provision for compensation in Clause 19.
Part III, which is called "Miscellaneous and General", need not detain us long, tonight at any rate. The amendments to the Legal Aid (Scotland) Act 1967 and the Legal Advice and Assistance Act 1972 in Clause 21 pave the way for the introduction of legal aid in the district court. The annual cost of legal aid in the district court is estimated, as I have said, as £130,000. The introduction of legal aid will meet another of the main criticisms of the existing system, and our proposal for its introduction has been warmly welcomed. There has been a gap hitherto, in that there has been no provision for legal aid in the lower summary courts, and in view of Scotland's tradition of legal aid being available to all it is desirable that this gap should be filled.
Since there was some confusion in another place about the dates of the coming into operation of the Bill, perhaps I should say a word about Clause 27(2). The sections referred to specifically in subsection (2) will come into force when the Bill receives Royal Assent. The rest of the Bill will come into operation on 16th May 1975.
Finally, since I have given notice already of some amendments for Committee stage, I ought to let the House know that there will probably have to be some rather technical amendments made in Committee or on Report to take account of the passage through Parliament of the Criminal Procedure (Scotland) Bill—a consolidation measure now being considered in another place.
I hope that the House will agree that the Bill meets the objectives set by my right hon. and learned Friend and myself. First, it contains a system which can operate from 16th May 1975 without undue disruption. Secondly it avoids the 1472 extremes which caused the criticisms of our predecessors' two sets of proposals. Thirdly, it preserves the good and democratic features of the existing system while introducing some long needed improvements.
I commend the Bill to the House.
§ 7.46 p.m.
§ Mr. Alick Buchanan-Smith (North Angus and Mearns)
Like the Secretary of State, I welcome the introduction of a Bill to reform the system of summary justice in Scotland. However, I cannot share his enthusiasm for the form that the Bill has taken. As he said, when we considered this matter when we were in Government we did not come to anything like the same conclusion as he has. The Secretary of State rather unfairly referred to the false starts and the volte-face and so on. When we were in Government we looked at this question in considerable depth. We published a very good White Paper which set out many of the considerations which the right hon. Gentleman has adopted in the Bill. However, what I will not accept criticism for—and I make no apology for the change of policy that we adopted—is that, having published that White Paper and made the proposals, we were prepared to react to the various representations about the White Paper.
The Secretary of State does less than justice to the course of action followed by the Conservative Government and to the kind of representations to which we paid attention. The right hon. Gentleman has simply paid attention, as my hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind) pointed out, to one area of representation—that of the existing local authorities and the members of the existing burgh courts. Under our proposals we were much more prepared to react, and we reacted to a much wider breadth of opinion. I wish that all Governments were prepared to be more sensitive to representations made about their White Papers. In our reaction to the various representations we showed not only a flexibility but a willingness to consider the strength of opinion and the views put to us. There was no blindness or stubbornness on our part to push through proposals which were not wholly appropriate for the situation.
§ Mr. William Ross
I have never regarded White Papers as sacred documents. They should be liable to change, otherwise there could be no fruitful discussions as a result of them. Perhaps I could draw the hon. Member's attention to his Government's White Paper on local government reorganisation. His Government said that there were proposals in it which were non-negotiable, and these have proved terribly unpopular in Scotland. However, tearing up a White Paper and replacing it with a totally different system is a totally different matter.
§ Mr. Buchanan-Smith
I know that it is not in the right hon. Gentleman's nature to be flexible. Therefore, I see no point in pursuing the matter further. It shows an openness of mind and common sense to change proposals that are demonstrably wrong. I make no apology for that.
I shall explain why we changed our proposals, because that will help to show the wrongness of the conclusions to which the right hon. Gentleman and the Government have come. The change is a natural consequence of the reorganisation of local government. The basic position in our White Paper was that in the establishment of our new system of summary justice there should be a separation from the local authority of the new court set-up which was to replace the JP and burgh courts. The Secretary of State is now back to a close tie-up with the new local authorities. Our principle was one on which we received no opposition or representations. I believe that it was generally welcomed throughout Scotland that there should be a separation of the new summary courts from local government.
The questions raised, the ones to which we reacted, concerned the principle and practicality of lay justice. In the White Paper we came down on the side of the principle of lay justice, which the right hon. Gentleman has adopted in the Bill. The opposition to it turned on the question of practicality. It is true that much of the opposition to our White Paper and to the right hon. Gentleman's proposals came from legal opinion, from the Law Society of Scotland and the Scottish Law Agents Society. But the right hon. Gentleman 1474 should not denegrate that, as he tended to do tonight. He should not say that the opposition came only from legal opinion. Just as we must take account of the representations of those who constitute the law magistracy, we should also take account of the wider opinion expressed from legal circles generally. There can be no question of simple self-interest in that expression of legal opinion, though that has sometimes been hinted. Those who opposed our White Paper, and now oppose the right hon. Gentleman's principles, have practical, sensible grounds for that opposition.
Even among those who supported the lay justice, the problem turned on the practical question of staffing the courts and the essential need for them to be staffed by legally-qualified clerks or assessors. What was to be the source of those legally-qualified staff? We hoped to staff the courts through the sheriff clerk service, but that did not prove to be a practical possibility.
Therefore, we had to examine the servicing of the existing courts, which was through the local authorities. But it was a basic principle, which we accepted from the beginning, that we wanted to get away from the direct connection with the local authorities.
That left a third source of legally-qualified staff, which was lawyers already in practice in the different areas. It raised the whole question whether it was right to bring in people from private practice and the question of the availability of legal expertise in certain areas, particularly in the rural areas.
I have gone over the argument quickly because a number of hon. Members want to speak, but I think that I have shown that on practical grounds there was good reason for calling in question some of the assumptions which were in our original White Paper and which underlie the Bill. That is one reason why we came to the decision that we should have professional judges.
I believe that our proposals were justified on wider grounds than those, and it is on those wider grounds that I criticise the Bill. I was the Minister in the Scottish Office who had to handle the matter. I had to consider the higher principles on which this form of summary justice 1475 should be based. When we have a watershed in the reorganisation of local government, with the opportunity, of necessity, to reorganise summary justice and the whole system of justice throughout Scotland, it is important to return to the principles on which that justice should be based, and not simply try blindly to reproduce a system of justice similar to the existing one, as the right hon. Gentleman has done in the Bill.
Two things bore with me in my consideration, and bear with me just as much today. The first is the quality of the justice to be administered. There will be argument tonight as to whether the quality of justice would be better under one system or another. My judgment is that a professional system is better. We accept it in the sheriff courts, so it is no innovation.
The second important principle is a uniformity of justice, which I believe is better achieved through a professional system of magistrates and judges. Because he is professional and full-time, each judge handles a much greater number of cases, and, therefore, the opportunity for uniformity is that much greater. With due respect to the burgh courts—and there has been considerable criticism of them in another place and elsewhere—I believe that both quality and uniformity of justice are better achieved by professional judges than by amateurs.
It is to the customer of the system that the quality and uniformity matter, and, in my view, the customer is the person who finds himself having to stand in a court and have justice administered to him. Through the professional system we are much more likely to be fair to that person than if we seek to please those currently administering that justice, as the right hon. Gentleman has done. It is the person to whom the justice is administered that matters to me, rather than the person who administers it.
On those points of quality and uniformity of justice, and the standard of service received by those to whom it is administered, I believe that under the professional system we should have achieved a higher standard than we have achieved or are likely to achieve under an amateur system.
1476 There is another practical argument which I must adduce. I believe that the Secretary of State is losing the opportunity of unifying the whole system of summary justice throughout Scotland. The right hon. Gentleman rightly claims merit for unifying the system of prosecution. That is to be welcomed under the procurator fiscal system as administered by the Lord Advocate. The Bill offers an opportunity to unify the administration of summary justice in Scotland by bringing the justices within the sheriff court system. It is only a short time since the new sheriff court system was set up in Scotland. I am sorry that the opportunity has been missed.
As I have said, we have recently set up the new sheriff court system. It would have made common sense in terms of efficiency of administration if we had given that structure the work load of what are called the lower or inferior courts instead of introducing separate district courts. I very much regret that the Government have not followed the lead that we gave them. They have missed an opportunity to improve and modernise the administration of justice in Scotland.
I am by no means alone in making that comment. It will be interesting to see whether the Minister who winds up will be able to say any more on that topic. The right hon. Gentleman, when he responded to the intervention of my hon. Friend the Member for Pentlands, made it clear that in changing the policy of the previous Government he was doing so as a result of the representations that he had received from those already staffing the magistracy in the lay courts in Scotland and as a result of the representations that he had made. We must remember that. I beg him to look further. What he has done has by no means received universal acclaim. A leader in the Glasgow Herald of 16th January reads:It did not seem likely that he"—that is, the Secretary of State—would take the opportunity not only of creating more efficient and professional lower Courts, but also of making Scotland a progressive force in the administration of justice.Obviously, hopes were high. The leader continues:In dismissing the case for professional magistrates, Mr. Ross has ignored the clear case for lower Court reform.1477 That is what the right hon. Gentleman has done. In a leader in the Scotsman of the same date—this is informed opinion and not just the opinion of lawyers—it is saidA great opportunity of combining local government reorganisation with the reform of the lower courts is being thrown away.That is precisely what has happened. The headline of an article in the Scotsman of 20th January readsDistrict courts could become battleground.The right hon. Gentleman is letting us in for that sort of situation. I believe that he has missed a good opportunity to reform the whole system of summary justice in Scotland.
I now turn to one or two points of detail which I hope will be answered when the Minister winds up. The right hon. Gentleman mentioned some of the representations—they were limited representations—that he has received. The House will be interested to know about the representations that he received from, for example, the central advisory committee of the justices of the peace. That is a body whose members were responsible in one area at least for administering lay justice in Scotland. It would be useful to the House to know the terms of their representations and advice.
Secondly, is the right hon. Gentleman satisfied that from the ranks of the new local authorities he will obtain a sufficient number of justices of the peace? Those of us who sat on the Committee which handled local government reorganisation know that the job of the new councils, whether at regional or district council level, is much more onerous and more demanding than the job of the county and burgh councils. They have more people to represent and they have a more demanding task. Given that situation, and given the great keeness and enthusiasm of those who constitute the existing magistrates and justices, will the present attitude continue when the new authorities come into full operation in May and the increased demands are made?
Next, the right hon. Gentleman mentioned training. Training is essential for the operation of the system that he recommends, but it demands time. Given the time that the councillors will have to 1478 give to their various duties, will they have time for training? That is an important matter. I am grateful to the right hon. Gentleman for what he said about training and for his statement that a training officer will be appointed. But is there enough time between now and 16th May, when the new courts will come into being, when as yet no training has taken place? I hope that we shall hear what is being planned.
My next point concerns legal aid. I welcome the extension of legal aid to the lower courts. At the same time, I hope that the right hon. Gentleman has his eyes open to the fact that its introduction is likely to increase the work load of the courts. It is a good thing that legal aid should be provided, but it does not necessarily make sense to add to the work load at the same time. It makes little sense to do so when the right hon. Gentleman is retaining the lay magistrate administration of justice. As we all know, stipendiary magistrates can get through a far greater work load. It is contradictory to increase the work load and at the same time not introduce the sensible and logical reform of introducing magistrates who will be able to undertake a much greater work load.
I must stress that I was disappointed to hear the right hon. Gentleman's comments on the improvements made in another place. I hope that the Minister who winds up will have more to say about that. I do not believe that the appointment by local authorities of new justices of the peace is necessarily the most appropriate course to take. I would accept recommendation, but I believe that final consideration and appointment by the Secretary of State—namely, the practice that now exists—is a very much better way of proceeding. I ask the right hon. Gentleman to think again before he seeks to turn the Bill back in Committee about whether the initiative for the introduction of stipendiary magistrates is to lie in the hands of the Secretary of State or in the hands of the new local authorities. I hope that the Secretary of State will think again about that instead of steamrollering the Bill back to what it was originally.
Basically I do not like the Bill in the way that the right hon. Gentleman has introduced it However, we have to have a Bill of this type before 16th May. 1479 Whilst I do not like it, I do not advise my right hon. and hon. Friends to divide the House against it. With the exception of the matters that I have mentioned, I think that the Bill has been improved, and I do not think that we should divide against it. I warn the right hon. Gentleman that we shall reconsider our position if on Third Reading the Government have removed the improvements which were made in another place.
The Government have missed a good chance of reforming and making more efficient the system of summary justice in Scotland. It is my regret and the regret of many people in Scotland that the right hon. Gentleman has let the chance slip him by.
§ 8.10 p.m.
§ Mr. William Small (Glasgow, Garscadden)
I noted that the arguments of the hon. Member for North Angus and Meatus (Mr. Buchanan-Smith) were based on the legalistic point of view. My view is that the Secretary of State is right to retain a lay element on the bench. It is held in the Advocates Library in Edinburgh, and in other places, that laymen should not come to this House and attempt to alter the law without the advice of lawyers. When I introduced the First Offenders (Scotland) Bill in 1959 there were criticisms from the Advocates Library and elsewhere. People asked "Who is this man to intervene in the law?" My measure was later emasculated in the Criminal Justice Act.
All the wisdom in the world and all the social justice does not reside in legal textbooks. We had to call on the Official Solicitor to get the Tory Government off the hook on one occasion. That was the result of the advocacy given at that time. Lay magistrates give a good deal of attention to cases. Take the example of the old days, and the order to buy or quit. The advice given to the person affected, such as a small shopkeeper, was to go not to lawyers but to lay magistrates, the justices of the peace, and to ask what was to be done. These people had no books. All they did was to go to Kilmarnock or Ayr court and say "Your honour, who suffers the greater hardship? The landlord without his rent, or me without a house?" There is no legal textbook which will give an analytical 1480 description of subsections (3), (4) or (5) of the "Buy or Quit Act".
I sat for some time as a lay magistrate, so I do have experience on this subject. The will of the Sovereign means habitual obedience on the part of the subject. The lawyers listen to the case, nod, and then preen themselves thinking what splendid magistrates they are. Those who sit as justices of the peace are involved in expense. They have to go to court on Monday mornings and employers do not make up their pay. The lay magistrate occupies that position because of the will of the community. These men and women have the capability to interpret the law. They need a lot of guile. Often there may be a vacancy for the superintendent which has a nice house with the job. That could mean that a lot of cases of every kind are brought before the magistrates.
I am 100 per cent. behind the Secretary of State in his endeavour to preserve the lay element and to see that there is an even-handed administration of the law.
§ 8.15 p.m.
§ Mr. George Thompson (Galloway)
In the midst of so many legal luminaries of various shades of splendour I take heart from the fact that the Secretary of State was, like me, a teacher. If he is able to speak on the Bill I see no reason why I ought not to add my contribution. I have never been in a court, except perhaps once, on a minor charge in the Army. I was suitably admonished for skipping rugby practice.
If I were to appear before a court—which God forbid—I would rather be dealt with by a stipendiary magistrate who is trained in the law than by a lay magistrate. Many people in Scotland share that view, including some who have been dealt with by lay magistrates. Other professions do not accept laymen. They are not accepted in medicine. No matter how trivial my complaint, I go to a qualified doctor. I do not usually go to the village spaewife to consult her about what remedy I should take.
§ Mr. Thompson
That is the hon. Member's opinion. I dare say that self-medication is often equally effective.
1481 The teaching profession has always been most jealous of its prerogatives and has not normally accepted laymen. I could also quote the ministry and the Civil Service. We always want trained people to deal with these important aspects of our lives. If we will not allow lay folk in these professions, why should we allow them in the judiciary? If it is argued that lay justices introduce an element of democracy and if democracy is what we are seeking, we ought to be arguing for the election of lay magistrates and not for their nomination in one way or another.
If we have laymen on the bench in the lower courts I fail to see why we should not have them also in the higher courts. If a lay magistrate is needed in a lower court to understand the ordinary circumstances of people's lives, is it not equally true in the higher courts, which are dealing with people in severe difficulties? I do not think that a mixed system of lay and stipendiary magistrates has much to commend it.
In this case we are saying that the sole criterion for determining which sort of magistrate we shall have is the amount of business that passes through a court. It is not the amount of business but the fair administration of law which should be the criterion. Might it not be thought, from a reading of the Bill, that the lower courts are less important than the higher courts? In some respects this is true, but it is the case, too, that the lower courts are desperately important because so many people who become criminals make their first contact with the administration of justice through the lower courts.
It is essential to have a fair system of justice in these lower courts—a system that is seen to be fair. In that way there is a good chance that the budding criminal will give up the course on which he has set out. Such fairness is much more likely to be achieved by paid magistrates than by unpaid amateurs. If there is to be overall fairness in Scotland it is more likely to come about through the operation of a small corps of professional magistrates than by the operation of a large body of semi-trained magistrates.
I do not believe that the training envisaged in the Bill, unless it is spelt out much more clearly, will necessarily result in a trained magistracy. Naturally, we 1482 welcome the extension of legal aid to the district court. I commend this provision. If I might make a suggestion, it is that an accused person should, in certain circumstances, be allowed to opt for trial before the sheriff rather than the district court.
I would like to ask, is it envisaged that the prosecutor in the district court will be a qualified person? I understand that in the lower courts the prosecutor is often unqualified.
My hon. Friends and I will not divide the House tonight, because the district courts must be in being by May, but we must register our strong reservations on the method employed by the Secretary of State to continue the lower courts in Scotland.
§ 8.20 p.m.
§ Mr. James Dempsey (Coatbridge and Airdrie)
The Bill means a transformation of the operation of justice in the lower courts throughout Scotland. My right hon. Friend the Secretary of State emphasised that point. We shall lose some magistrates courts which have been in operation for nearly 700 years. In my constituency they have been in operation for 150 years and nearly 200 years, respectively. It is therefore only right that my right hon. Friend should apply his mind to the replacement of this system of justice in view of the reorganisation of local government.
I congratulate my right hon. Friend on his lucid presentation of the main purpose of the Bill and commend him on the deep penetrative thought he has given to the question of devising a system of democratic justice. No doubt he, like others of us, has been subjected to pressure to the effect that there should be a full-time legal representative known as a stipendiary magistrate or that there should be a system of lay justice.
I am at a loss to understand the argument of the hon. Member for Galloway (Mr. Thompson), who talked about the need for professionalism in local courts. There are all sorts of courts. There are industrial courts, in which a person may be found guilty or not guilty of misconduct. No one suggests that there should be a full-time legal representative in those courts. There are social insurance courts, in which a person may be found guilty or not guilty of failing to comply with the 1483 standard period of notice to entitle him to receive benefit. No one suggests that there should be a legal representative in those courts. There are children's panels. Would anyone in his senses suggest that a legally qualified person should determine whether a juvenile has committed an offence?
§ Mr. Rifkind
Does the hon. Gentleman accept that if a child who appears before a children's panel does not accept that he is guilty the matter must be tried by the sheriff? Does the hon. Gentleman know of any example in which a person may have a criminal offence on his record for the rest of his life, or for many years, which has not been determined by a legally-qualified person?
§ Mr. Dempsey
I have known of cases where an offence has appeared on a charge sheet in a local magistrates' court with no legal representatives on the bench.
I am at a loss to understand some of the arguments. A lay magistrate does not simply listen to the case for and the case against and decide the matter. A legal fiscal prosecutes on behalf of the authorities and a legally-qualified clerk advises him on the law. In October, in court, I gave a decision which has been appealed against. It was an important decision. It might be a test case. It was an unusual charge. I had the assistance of a legally-qualified clerk in drawing up the presentation of a stated case to the fiscal.
I am staggered that the hon. Member for Galloway should give the impression that unfairness results unless there is a legal representative on the bench. That is untrue. I say that as a practising justice of the peace. I do my stints during the parliamentary recesses. I did a stint during the Christmas Recess. I am already booked to do a stint at Easter.
We bend over backwards to assist the accused person. He may have no experience of courts, and therefore we go out of our way and give him every encouragement to ensure that his view is not only fully explained but fully understood before a decision is made. I cannot say the same about some of the sheriff courts. I could give examples of unfairness which have occurred while legal experts have been sitting on the bench.
§ Mr. Thompson
Does the hon. Gentleman accept that that is why we have a system of courts of appeal? I say to the hon. Gentleman and to the many excellent lay magistrates in Scotland that there is a feeling among some of us that the best traditions, of which the hon. Gentleman is an excellent representative, are not always followed.
§ Mr. Dempsey
I am surprised to hear the hon. Gentleman talking about a system of appeal for the legal intelligentsia. There is also a system of appeal for the local courts. I sent a person to an institution for training. Because of the remarkable progress which he made, an appeal was lodged with the Secretary of State, who wrote to the two justices of the peace who had sentenced him—he does not realise that I was one of them—and asked whether they agreed with the recommendation from the superintendent of the institution that there should be some remission of the sentence. After studying the recommendation, I agreed. There is therefore a system of appeal, whether it be for justice of the peace courts or sheriff courts.
One must decide whether one believes in full-time stipendiary magistrates. There is a case for and a case against. If one examines both attitudes, as I have done, it becomes a matter of opinion.
I give my right hon. Friend credit for arriving at the opinion that lay magistrates should continue. In these days there is too much expertise. We have only to set up a small department and, overnight, a huge army of experts appears. There are some in my right hon. Friend's Department. One of them wrote to me telling me that the JP courts were finished and suggesting that I, too, was finished. I have done JP service for 20 years and have never charged the authorities a halfpenny. I have never had my bus fare or even a cup of tea, but I am sure that the gentleman who wrote that letter enjoys a good fat salary. I am a great believer in voluntary effort. As long as we have voluntary effort our country will go from strength to strength. A valid reason for the Bill to be given a Second Reading is that my right hon. Friend recognises that voluntary effort.
In the administration of justice I am the first to concede that there are different attitudes, different decisions and different 1485 punishments in the enforcement of the law, but that is not all the responsibility of the lay justice; it is the responsibility of the courts. For example, under the Burgh Police Acts the maximum fine for a person who is convicted of committing a nuisance may be £2, but in the court in which I operate the first fine is £10. It would cost much less to spend a penny than to commit an offence in the main streets of any town that comes within the jurisdiction of my court. There is a disparity between the fines, not between the lay justices. We have to adjust the law to achieve the desirable degree of uniformity.
The extension of legal aid to lay justices' courts will mean much extra work for those courts. I predict that the first result of that extension will be in the increased number of trials that will take place in lay courts. Even in a JP court a trial might take several hours. No doubt there is an argument in favour of legal aid for certain offences, but the extension of legal aid will mean a substantial increase in the number of sittings of the court and the length of time the court will have to sit. My right hon. Friend must ensure an adequate supply of justices to serve those courts.
If the legal judiciary were to be concerned with minor offences, such as dropping litter, breaches of the peace, breaking glass and committing nuisances, it would clutter up the legal administration and there would be chaos. Minor offences must be kept separate to avoid chaos. In the sheriff courts the period of waiting before cases are tried is six months, nine months or even 12 months. What will happen if the courts are cluttered up with minor offences? I am glad that my right hon. Friend has absorbed that and avoided chaos by continuing the system of lay justice.
How are justices of the peace to be attracted? I sit as a JP in a court in the constituency of my hon. Friend the Member for Bothwell (Mr. Hamilton) in Bellshill. All JPs are expected to serve twice a year. Some do not, and we are lucky if half serve once a year. That is an illustration of how difficult it is to get JPs to turn out and fulfil the undertaking they give when they take the oath to serve. That is a weakness which my right hon. Friend will have to overcome.
1486 If we are amalgamating the courts and there is to be only one court in a town, that court will be busy. It will have to meet four and possibly five days a week, and it will be necessary to recruit more JPs to serve in the court. I do not understand the anomaly of having two JPs to decide cases. One magistrate can determine an issue, but it takes two JPs to determine the same issue on the same type of offence and to administer the same Act.
The Minister said that the situation would be at the discretion of the local authority. I hope that he will pay due attention to the situation, and that if cases tend to pile up and there is a shorage of justices, one justice of the peace will be able to determine them.
I believe that there should be some provision in the Bill to deal with non-attending justices of the peace—people who want the honour of the position but do not intend to fulfil their obligations. I see no provision in the Bill by which such people may be removed from the justices' panel. I hope that the Government will examine this matter before the Committee stage to determine a formula by which people who fail to satisfy their promise to the Secretary of State may be removed from the panel.
When the Minister replies, will he explain the system of allowances? The Bill covers travelling allowance and subsistence, but do the relevant provisions cover loss of earnings? Loss of earnings in pursuit of duty can be a large drawback to a lay justice of the peace. Many working people are unable to claim against loss of earnings, and this may hinder their enthusiasm to attend court sittings. I hope that we shall be given some assurance on this point tonight.
If loss of earnings is included in the definition of "expenses", may we be told whether there is a ceiling to the eligible amount which a person may claim? At my last court sitting I overheard a business man complaining about the amount of business he had lost by having to sit in the Bellshill Court. These are important considerations, which must be borne in mind before people accept nominations as justices of the peace.
With regard to the appointment of justices, is it intended to confine appointments solely to those from elected district 1487 councils, or will the system embrace other persons in the community who give excellent voluntary service? Under the present system, I know from personal experience that in Lanark such people are in the main not considered, because nominees are put forward by political parties. I have no objection to that system, but I am emphasising the fact that there are other people, who give wonderful voluntary service to the community morning, noon and night, who should be considered for these posts. I should like the Minister to consider extending the appointment of justices of the peace to those who are not elected, and I hope that we shall hear something on this score in the Minister's reply.
I believe that the Bill is an able, earnest and thoughtful endeavour to replace the existing court system. I have no doubt that these measures will succeed. We have a tradition of service, and it is a tradition of which we should be rightly proud. I refer to the administration of justice without fear or favour.
§ 8.40 p.m.
§ Mr. Russell Johnston (Inverness)
In view of the obvious long and worthy experience of the hon. Member for Coat-bridge and Airdrie (Mr. Dempsey) within the lay system, I wish that I could agree with him, but I cannot. I hold the view already expressed that these proposals represent an opportunity missed to improve the situation.
The hon. Member for North Angus and Mearns (Mr. Buchanan-Smith) pointed out that in the main the Government's proposals run counter to the advice tendered and representations made by the Scottish Law Society, the Bar, and many social workers. It is a pity that the Government have not taken this opportunity to replace lay participation with a fully professional judiciary. Basically we accepted the Conservative Government's proposals to bring all summary criminal work within the sheriff court system.
We feel that this Bill has many grave deficiencies. I accept that, time and the situation being what they are, it probably makes no sense to divide the House, but before the Bill goes into Committee the Secretary of State should be clear that 1488 many people are unhappy about the situation.
There are a number of objections to the Bill, but probably the most serious is the provision to enable district councils, if they wish, to appoint up to one-third of their number to serve as justices of the new district courts.
There is already a great deal of evidence to show that in some instances magistrates' decisions are very much coloured by their own views on and philosophy for dealing with crime. It is not uncommon for the rotation of magistrates to bring with it a complete change in sentencing policy.
The proposals in the Bill will still further politicise the lower courts. I think that the hon. Member for Coatbridge and Airdrie touched on that point at the end of his speech, when he encouraged the Secretary of State to consider whether some way could be devised to involve in the lay system persons not within political parties. If magistrates were appointed en masse from one political party it would have a bad effect on the community's respect for the law.
Another objection to lay magistrates concerns the lack of legal training and, therefore, the tendency for non-uniformity in sentencing. I doubt whether the proposals for the provision of specialised training courses will fill the bill. One of the serious faults in the present system is the lack of contact between the bailies on the one hand and the local sheriff on the other.
If this system is to work—I suppose that the system will come into being whether we like it or not—district court judges will have to be in regular consultation and contact with local sheriffs to achieve co-ordination and consistency of sentencing. I accept that at any level in the courts system there will be a certain inconsistency in sentencing, but we should attempt as far as possible to achieve consistency. I believe that it would best be achieved if we enabled those who have professional training to make the decisions. It will be even more important, in view of the intention expressed in the Bill to introduce legal aid into district courts. We applaud and accept that proposal, but it would be a bad thing if people found that it was 1489 easier to get legal aid in a sheriff's court than in a district court.
At the end of the day regular consultation between the district judges and the sheriff will probably be a more effective form of training for the judge than the proposed special courses.
I should like to ask the Minister, when replying, to explain something that I am not clear about. The Bill as it stands envisages that responsibility for prosecution in the district courts will be taken over by the Crown Office. Anyone who has been a Member of Parliament for any length of time knows that the Crown Office is already desperately short of procurators fiscal. Equally, there is a shortage—one may say so within brackets—of procurators fiscal of calibre. Where are men to be found to prosecute in the district courts? The process will probably occupy a considerable length of time, which is why the Bill provides for district councils to appoint prosecutors to function until the Crown Office is able to take over, as it presumably will, district by district.
What will happen then is that, first, the cities will be taken over, because they represent the largest and most serious problems. Gradually, the smaller towns will follow, so that in the end there will be a division between city and county for a fair period of time, with the city prosecutors being appointed and paid for by the Crown and with the county district prosecutors being paid for by the local authorities. I would have thought that that would be unsatisfactory. I should like to know what time scale the Government envisage, and whether they are taking any steps to accelerate recruitment in that regard.
Secondly, the hon. Member for Coat-bridge and Airdrie dwelt for some time on the justices of the peace whom we now have. He referred, in a way critically, to the fact that some justices of the peace are not exactly active attenders on the bench. That is undeniably true. Nevertheless, it is also true that although they are not very active in that regard they also serve a useful rôle in the community in doing those small things which JPs are able to do.
The hon. Member for Coatbridge and Airdrie said that it was an honour for a worthy citizen, and a recognition that 1490 he was a person of some value in the community. I am reluctant to see that honour—it is not simply an honour—taken away, so that we are left only with those who are on active service, so to speak. It might be better to call the new district JPs bailies, or something like that, because we shall not have bailies any more. Is it not possible to retain the usefulness of the existing JPs?
Thirdly, the Bill says nothing about honorary sheriffs, who are now an important part of the lay participation process. Will they be given training? What will happen to them? I cannot say that the system of honorary sheriffs, in general, is one which I greatly admire. I should like to know what the situation will be.
As to cost, I think the hon. Gentleman indicated that it will be about £25,000 per annum more than the present cost. That is perhaps not a very large sum for a country the size of Scotland. Nevertheless, at the end, we shall still not have a professional judiciary, which is regrettable.
On balance, I say in conclusion that we—I think this applies to most lawyers in Scotland—are opposed to the setting up of district courts in Scotland. Scotland has, rightly, long prided itself on having justice administered, in the main, by professional judges. Historically, the lay participation system came from England. I do not say that from a nationalist point of view. The Liberal Party prefer the sheriff court system.
We are bound to suspect that the influence of existing lay magistrates, many of whom are councillors, has played too prominent a part in determining the Government's view. I know that many lay magistrates do an excellent job. But, in the same way, there were many excellent teachers who were without qualifications. I must say that I accepted the view completely, at the time that we set up the General Teaching Council, that we were robbing the education service of a great many valuable people. However, on balance, we accepted the proposal, initiated as it was by the present Secretary of State. Liberals think it better to have professionals, and the lack of them cannot be remedied by training courses. I am sure that the Lord Advocate agrees that a judge develops a judicial mind over 1491 a long period of time, through sustained experience.
§ Mr. Johnston
As the hon. Member for Coatbridge and Airdrie said, there are different points of view. But that is basically our view. We lean towards the professional system, and do not believe the lay system to be satisfactory. However, we shall not divide the House, for the very reasons advanced by the hon. Member for North Angus and Mearns.
§ Mr. William Ross
The hon. Gentleman was a member of the Wheatley Commission. Will he tell us why that commission expressed the belief that lay courts of summary jurisdiction could be reconstituted conveniently within the new structure?
§ 8.47 p.m.
§ Mr. Frank McElhone (Glasgow, Queen's Park)
It is unfortunate that we have heard so many hon. Members on the Opposition benches who are looking for the professional.
§ Mr. McElhone
I agree with my hon. Friend. Nevertheless their comments about the lay magistrate and about the amateur are unworthy of the many dedicated justices of the peace and magistrates who have served in the lower courts for so many years. They have done yeoman service to the community. It was a grave omission on the part of the hon. Member for North Angus and Mearns (Mr. Buchanan-Smith) not to pay tribute, now that that service is to be ended, to the many thousands of men and women who have given their services voluntarily. Many have lost time from work and received no compensation. Many have lost promotion opportunities. Many with small businesses have suffered. But they have given their services willingly, and it is to the discredit of this House that no one so far has paid tribute to the long service given by the amateur, the lay, magistrate to the community. I hope that that error will be corrected before the end of the debate.
1492 There is also some misunderstanding, especially on the part of the hon. Member for North Angus and Mearns, about the job of lay magistrates. The hon. Gentleman appears not to understand the type of crimes dealt with by them. We are not talking about road traffic offences or assaults on bus crews. We are talking about trivial offences involving breaches of the peace, stairhead quarrels and similar matters.
It has always been our attitude that a man should be able to be judged by his peers. The quality of mercy can well come not from someone with a law degree, because there is such a place as the university of life—often a better place than Gilmour Hill, Strathclyde or Edinburgh.
A man who is an engineer, a railway engine driver or a shop-keeper can well understand the pressures and dilemmas of people living in the slums or in stress areas, with no community facilities for their young people. The quality of mercy rests better, on balance, with the lay magistrate because he is the person from within the community. It is claimed that sentencing in magistrates' courts is erratic, But anyone who has been to the Court of Session or any other high court, or has read their proceedings, can discover the number of times that these highly qualified and skilled people have been criticised because of misdirections of juries. Recently in Glasgow there was the case of a certain lady who, to all appearances, was guilty of a certain crime, but who, because of a technicality—misdirection of the jury—is no longer in the custody of Her Majesty.
One does not like to denigrate one's own constituency but, as the hon. Member for North Angus and Mearns knows, from his period of office as Under-Secretary of State, I am not without experience of writing to the Scottish Office on various matters. I have had lack of success on a certain case which is interesting my right hon. and learned Friend the Lord Advocate. It concerns a person with the same name as my right hon. Friend the Secretary of State for Scotland—which must demean my value to those of my constituents who are in the care of Her Majesty at present. But if my stock has gone down, it is because the attitude of my right hon. Friend has not corresponded to my thinking on that case.
1493 Be that as it may, having had experience of advice centres and service as a magistrate—as far as I know, I am still a police judge—I do not altogether agree with my hon. Friend the Member for Coatbridge and Airdrie (Mr. Dempsey), who castigated those magistrates who do not sit on the bench often. There are other rôles for justices of the peace besides sitting in court, such as witnessing and signing passport forms, and—dare I say it to those representing areas outside Glasgow?—forms testifying to lost pawn tickets. There are few of those in Glasgow today.
Therefore, there is still a vital rôle for a JP in many ways. Witnessing signatures is important. Many firms have gone into liquidation, and claims are made by workers for their wages or by small shopkeepers for their debts to be paid. Has anyone seen a form which has been signed or counter-signed by a JP in a bankruptcy case? I see that my right hon. and learned Friend the Lord Advocate nods. He should understand the position. There is a great deal of work for JPs within the community.
§ Mr. Dempsey
Would not my hon. Friend agree that if it were explained to them that all they had to do was sign forms no justice would be administered at all?
§ Mr. McElhone
I was merely making the point that, with the many forms which have to be signed today, and with many other duties, there is a rôle for the JP who might not have time, because of other commitments, to take his place often in the burgh court. There is room for both.
I make the same argument about stipendiary magistrates. I am not arguing for the one against the other. I am saying that in these large areas there is a rôle for the stipendiary magistrate and a rôle for the lay magistrate. With the new district councils in being, the hon. Member for North Angus and Meares expects there to be stipendiary magistrates instead of lay magistrates. I wonder whether he has sat in a court of the type we are talking about where one finds what I would call sausage-machine justice. Listening to perhaps 30 or 40 cases a day which are boringly repetitive, a stipendiary magistrate becomes apathetic.
1494 I believe that there is a true story of a stipendiary who got so fed up with the number of similar cases coming before him that he fell into a sort of daze and said to one defendant, without even listening to the evidence, "Thirty days—and if there had been a shred of evidence against you, I would have made it 60." That sums up the atmosphere of many stipendiary courts. There is nothing more melancholy than spending five days a week listening to a procession of similar cases.
There is no comparison with the sheriff court, where many cases take much longer and sheriffs do not have to spend so much time. There is a case for the lay person doing this work. It is no good arguing about devolution and bringing decision making down to the grass roots, with community councils or school councils, if, at the vital stage of a lower court, the lay magistrate is displaced.
Who will decide, under Clause 21, how legal aid is to be awarded? Anyone with experience of the sheriff court will know that the sheriff decides, that it is not an automatic right and that there is no appeal against refusal. I know of horrifying cases of legal aid being denied to people who, in my opinion and that of many solicitors, deserved it. When a person goes to a district court, will legal aid be automatic or will he have to apply to the procurator fiscal or the sheriff? At the moment, if the sheriff thinks that an applicant is guilty, he does not give legal aid; in other words, he prejudges the case. There is a complexity of laws about legal aid, and I hope that the criteria will be spelled out. If common sense had prevailed, my attempt to insert a clause about legal aid in the last Bill discussed today would have been successful. Nevertheless, I hope that the other place will think about this matter.
The district courts will now take over licensing functions. I have sat as a senior magistrate and chairman of a licensing court in Glasgow, which is no mean ex perience. Nothing is said in the Bill about confirmation courts which hear appeals from refusals to grant licences—sometimes about grant of licences. The quorum in the Glasgow Confirmation Court, the biggest in Scotland, is 23, but the anomaly is that the magistrates who 1495 made the original decision at the magistrates court, where the number is 19, are allowed to sit at the confirmation court. This means that a man is both judge and jury, that after he has approved or opposed an application which may have caused great conflict in the local community he can decide it again in the appeal court.
That is totally wrong, and the Bill says nothing about it. If these licensing functions are to be taken over, the matter must be done properly, because a great deal of bitterness can be created in a community over allocation of licences. I could spend a great deal of time on the problems of the allocation of licences and the trouble this has caused. Nevertheless, this point must be borne in mind. I hope that the Minister will tell us something about the confirmation court procedure, because I am sure that it has been missed by the skilful draftsmen who have drawn up the Bill.
One could continue at great length. However, not having had the charity of the Chair during the two-day debate on devolution, I shall respect the wishes of those who still await a chance to speak because, having endured two days on the back benches jumping up and down, which was a painful experience, I shall resume my seat with much still to say but with due regard to the matter of short speeches, which I hope will be the order of the day.
§ 9.7 p.m.
§ Mr. Malcolm Rifkind (Edinburgh, Pentlands)
I am happy to follow the speech of the hon. Member for Glasgow, Queen's Park (Mr. McElhone), and to agree that there may well be a continuing rôle for justices of the peace in witnessing documents and duties of that kind. The hon. Gentleman commented on the state of lay justice when he described himself as being, so far as he knew, still a police judge.
§ Mr. Rifkind
Indeed. In this debate I should perhaps declare what could be a double interest, being both an advocate at the Scots Bar and a former member of a local authority.
In considering the Government's position and their reversal of the previous Conservative Government's policy, it is 1496 perhaps interesting and significant that that reversal has taken place with a minimum of consultation. No one doubts that when the Conservative Government eventually came down in favour of abolishing the system of lay magistrates and replacing it by a stipendiary system, it was the result of a large and extensive consideration of the views of local authorities, the legal profession and other interested parties. Yet when the present Government reversed that decision and decided to continue with the lay system, it was stated that they had not carried out an extensive re-examination of new ways of incorporating lay justices into a new set-up and that what they had produced was the best available in the time.
The Secretary of State made quite clear what we already knew—that there had been large numbers of representations from local authorities suggesting that the lay system should be continued. But when I asked him to name any other persons or organisations which had made similar representations, other than the local authorities which are obviously interested parties, the only person who had given similar advice to whom he could refer—and no doubt a person with great authority and importance in these matters—was himself. That must have carried a great deal of weight with the Secretary of State. It does not suggest that the demand for the retention of the lay system is something shared with anyone other than lay magistrates themselves.
A similar argument cannot be true about the other side of this case. While it is true that the legal profession almost unanimously believes that the lay system is undesirable at present, there are many others who also take that view. We have heard from the hon. Member for Galloway (Mr. Thompson) and the hon. Member for Inverness (Mr. Johnston), neither of whom would have been suggested to be trying to further the interests of the legal profession for their own sake. Nevertheless, they strongly put forward the view that this is not in the interests of the people of Scotland.
I should like to refer the Secretary of State to the debate in the other place, and a remark of Lord Wallace of Campsie, who, I understand, was appointed by the Secretary of State to the 1497 chairmanship of the East Kilbride Development Corporation and is, I presume, not to be reckoned as a person interested in the legal profession. He said:For my part … I strongly recommend that wherever it is justified stipendiary magistrates should be appointed."—[Official Report, House of Lords, 27th November 1974; Vol. 354, c. 1422.]Clearly, there is a widespread view not simply among the legal profession that, while there has been much to be said for the system of lay magistrates, it has produced many iniquities, unfairnesses and anomalies, which should not continue at present.
I want to make one point which has not so far been made in the debate. If at the end of the day it is believed desirable by the Government to retain a system of lay magistrates, it should be remembered that there are two quite different forms of lay magistracy which can be used. There is the system which has worked very well in England for many years. That system was originally produced by a Conservative Government when they were still thinking in terms of a lay magistracy. That is that people should be appointed as lay magistrates by the Secretary of State on the basis that he would appoint them because he believed that they were suitable to act as magistrates. If we are to have a lay magistracy, I can see a strong argument for such a system of appointment. One of the most iniquitous parts of the Government's intentions is not that they want to continue with the lay magistracy but that they want to ensure that a large part of the selection of those who should be lay magistrates should rest with local authorities.
That would be all very well if one believed for one minute that local authorities when appointing magistrates take into account as the only important factor, or even as the major factor, the suitability of persons to be lay magistrates. I have no doubt that by chance and on the law of averages many persons who are appointed by local authorities to be magistrates, such as the hon. Members for Coatbridge and Airdrie (Mr. Dempsey) and for Queen's Park, are first-class magistrates, but both hon. Members will accept and will admit that they were not originally appointed 1498 because it was believed that they had special qualifications for the job, unless Glasgow is very different from the rest of Scotland in this respect as well as in every other. They will, I am sure, accept that they were appointed because it was their turn to be appointed, either because everybody senior to them had been appointed or because those senior to them who had not been appointed did not wish to be appointed.
§ Mr. McElhone
That is grossly unfair, not only to Glasgow but to other people, particularly to justices of the peace. However, it must be admitted that the system of choosing magistrates has a certain element of "Buggins's turn next" about it. There are many cases in which people decided that they would not accept appointments as magistrates until they had served as councillors for several years.
§ Mr. Rifkind
I accept that fully. I do not doubt that the hon. Member is correct in that respect. My point—the hon. Member has not refuted it, nor has he sought to refute it—was that when eventually people were appointed magistrates it was because they said that they were willing to serve and because the local authority was willing to appoint them. I am sure that the hon. Member for Queen's Park does not seek to suggest that when Glasgow Corporation, Edinburgh Corporation or any other local authority elects bailees it takes into account the suitability of the person that it put forward to become a magistrate.
§ Mr. McElhone
That might well be said of High Court judges as well. I speak for myself. In Glasgow we had voluntary training schemes. We went down to the court in the evening and had the benefit of the procurator fiscal and others who guided us in the elementary practice of the law.
§ Mr. Rifkind
Again, there is no real disagreement between the hon. Member and myself. I have no doubt that many of those who were appointed were only too happy and willing to undergo training to make them better magistrates than they would otherwise have been. However, we come back to the point that those people were not appointed because of their suitability or likely suitability to be good magistrates. Unlike sheriffs and 1499 judges—who, I fully accept, can turn out not to be good sheriffs or good judges—there is the important distinction that the people we are considering have not had legal training, whereas every sheriff and judge has had many years of legal training and experience behind him before being appointed.
§ The Lord Advocate (Mr. Ronald King Murray)
Is not the hon. Gentleman again pointing to the difference of view between the two sides of the House? Is he not saying that there is no place for a lay judge? We on this side are saying that there is a place for the uninstructed layman to be a judge. There are people such as those who have been mentioned this evening who are ideally fitted to fill that niche.
§ Mr. Rifkind
I hope that, if the Lord Advocate accepts that view, the Government will accept the amendments made in the other place. The whole purpose of the major part of those amendments was to say "By all means let us retain the lay system, but let it be the Secretary of State who appoints the people whom he believes, taking into account the circumstances, will, with the right sort of training, make suitable and good magistrates".
§ Mr. Small
There are many people throughout Scotland whom the Secretary of State, the hon. Gentleman and I would acknowledge to be suitable candidates. The advice of the lord lieutenant of the county must be relied on. The Secretary of State cannot always know. Taking a cross-section of 1,000 people, I could not name more than 10 suitable candidates, any more than the hon. Gentleman could.
§ Mr. Rifkind
The hon. Member knows perfectly well that the many thousands of appointments by the Secretary of State have no significance in that respect, because the Secretary of State may not know the people concerned personally but acts on advice. No one is suggesting that the Secretary of State should know every individual personally. However, the choice should not be as it has been in the past and will be in the future if the Bill goes through unchanged. The power to choose individuals will be in the hands of the district councils. Clearly, the Government intend that the councils will nominate people and that the Secretary 1500 of State will automatically accept them unless they have been guilty of some criminal offence or some other gross unsuitability for the job.
I can accept that if there are to be lay magistrates the Secretary of State should appoint them, but I can see no justification for the continuation of the present system. The hon. Member for Queens Park and the hon. Member for Coatbridge and Airdrie may be determined suitable to be appointed lay magistrates, but there are others, in particular the individuals we all know about, who have made a farce and a disgrace of the system and have given it a bad name in certain quarters. Those are the sort of people who ought not to be appointed automatically.
§ Mr. Harry Gourlay (Kirkcaldy)
With his experience in the courts, the hon. Member will recognise that there can be a difference in judgment by sheriffs, let alone stipendiary magistrates. There will be a considerable reduction in the numbers who will be elected to Scottish local authorities under the new system, and, therefore, the number of people who will be unsuitable for appointment to the bench should be considerablv reduced.
§ Mr. Rifkind
I would be more inclined to believe that if I had not had experience of local government. I am sure that the hon. Member for Edinburgh, Central (Mr. Cooke) will confirm that in Edinburgh town council appointments to the magistrates' bench were entirely a matter of seniority, and that applied to both the political parties. I see no reason to believe that this is going to change under the new district councils, and I would be most surprised if the rest of Scotland acted any differently. That is what worries we. While many of these appointments turn out to be very good, others are deplorable.
§ Mr. Gourlay
Some authorities in Scotland have made a point of making the newest members of the authority magistrates, which I thoroughly disagree with. I would have thought that the obvious choice would have been to select the most experienced candidates. Under the new set-up this is more likely to occur.
§ Mr. Rifkind
It is as wrong to appoint someone because he is the newest as it is 1501 to appoint someone because he is the most senior. The proper criterion should be suitability, but very few local authorities have appointed bailies and magistrates on that basis. The hon. Member knows that if appointment was in the hands of the Secretary of State that would be the criterion, and that would be much more acceptable and agreeable. I believe that the vast majority of people in Scotland, even those who support the principle of a professional magistracy, would agree with me.
§ Mr. Donald Stewart (Western Isles)
I do not wish to argue against the hon. Member's case, which is pretty well proved, but there is one worrying aspect. If we accept his proposition that the lay magistracy should disappear, do trained legal personnel exist to fill the gap?
In my view, they do, because there is the very great difference that if we had a trained magistracy, a stipendiary magistracy, because it was acting on a full-time basis it would be possible to provide a service. In Glasgow there are two stipendiary magistrates who take a large proportion of the burden of problems which would otherwise fall on lay magistrates. In other parts of Scotland where there is a sparse population we could provide for itinerant sheriffs, and a similar provision could operate with the stipendiary magistrates.
Two further matters worry me. First, under Clause 3 the powers are given dependent upon whether a local authority has decided to opt for a lay magistrate system on a system of stipendiary magistrates. Subsection (2) says:A district court when constituted by a stipendiary magistrate shall, in addition to the jurisdiction and powers mentioned in subsection (1) above, have the summary criminal jurisdiction and powers of a sheriff.That is every important. It means that one local authority may have lay magistrates, who will have a maximum sentencing power of 60 days' imprisonment, while another district council may have chosen to have a stipendiary magistrate, who will have the maximum power of penalty of three months. Both might be trying exactly the same offence in exactly similar circumstances, but different maximum penalties can be imposed, depending on whether a stipendiary or a lay magistrate hears the case. That is potentially unfair.
§ The Lord Advocate
I am sure that the hon. Gentleman does not intend to mislead the House. What he has described is the present position where there is a stipendiary court and also a lay magistrates court.
§ Mr. Rifkind
I fully accept that, but it is not a good argument for continuing with the situation. If the right hon. and learned Gentleman is suggesting that it is a desirable situation, I should like to hear the arguments for it. This is an opportunity to remove that anomaly.
It is one thing to say that different courts may impose different sentences because of the personality or views of the presiding judge. It is another thing to say that a different maximum penalty could be imposed depending on which part of Scotland one lives in. In an area such as Glasgow there is almost certain to be a stipendiary, even under the new system. A person appearing before him may receive a three months' sentence, whereas in Edinburgh, where there are lay magistrates, for the same offence in similar circumstances a person may get only 60 days. That is not justifiable. It is no excuse to say that the situation has been like that and that it should continue. Unless there are other arguments, I hope the Government will consider having the same maximum penalties for the same offences.
My final point concerns legal aid. Like every other hon. Member who has spoken in the debate, I welcome it, but it will mean not only a vast increase in the amount of work before the district courts but a change in the nature of the work.
The first result of legal aid will be that, instead of there just being a legally-trained person handling the prosecution, there will be, in all cases where the accused pleads not guilty, a legally trained person acting for the defence. There will be the absurd situation of the prosecution and defence being legally trained, with the only person who is not legally trained being the person asked to decide between those two individuals.
§ Mr. Rifkind
Although it can sometimes happen, it is relatively rare. I refer 1503 the hon. Gentleman to the facts given as an example in the debate in the other place, when it was stated that:In one month recently in the Edinburgh burgh court of a total of 288 persons appearing from custody 257 pleaded guilty".[Official Report, House of Lords, 27th November 1974; Vol. 354, c. 1428.]In other words, there were only 30 cases in which the accused pleaded not guilty. In the vast majority of those cases he would not have been legally represented.
§ Mr. Dempsey
I seldom sit on the bench in my court without somebody being defended by a legal representative.
§ Mr. Rifkind
I am happy to accept that point. But the whole reason why legal aid is to be introduced is to enable many people who might otherwise plead guilty, in order to get the case over, to have the benefit of legal advice in deciding whether or not they should plead guilty. If they choose not to plead guilty, that will be because their legal adviser believes that there is a legal reason which entitles them to do so. That means that there will be far more legal arguments never mind factual arguments, in cases heard by the district courts. Many of the matters that magistrates have to decide now are matters of fact. When both sides are legally represented, there will be far more legal argument, whether Labour Members like it or not. Therefore, the person to determine what may be complex legal arguments will be the one person in court without legal training.
There are strong arguments against the Bill. It has been improved by its passage through the other place. I hope that the Government will give serious consideration to the changes made there. They do not destroy the principle of lay magistracy, but they ensure that those appointed as lay magistrates will at least be the most suitable people for that position. That is an important compromise between those who hold different views about the principle of lay magistracy.
I hope that the Government will show flexibility on the matter, because it will be in the interests of justice and of those who appear in the courts to do so.
§ 9.25 p.m.
§ Mr. Robin F. Cook (Edinburgh, Central)
I welcome the commitment of the 1504 Government, as evidenced by the Bill, to retain the lay magistracy. That is very good and democratic, but, all the same, I urge my right hon. and hon. Friends to respond sympathetically to the case for appointing more stipendiary magistrates. I do not believe that the retention of lay magistrates and the appointment of more stipendiary magistrates is necessarily incompatible. I say to some of my colleagues who have adopted a dogmatic defence of lay magistrates that it is difficult to do so when speaking to a Bill which will increase legal professional expertise and professionalism in district courts.
This is not just a matter of legal aid being made available to defending counsel. The hon. Member for Edinburgh, Pentlands (Mr. Rifkind) has already referred to that. It is also the fact that we shall have more professional prosecuting counsel. That is a matter that will come directly under my right hon. and learned Friend the Lord Advocate. He has given an undertaking, through our spokesman in another place, that that will be accomplished within the next year. On top of that, we now have written into the Bill—this was done when it was in another place—a provision that clerks of the courts shall be either solicitors or advocates. That is a new addition.
I have some sympathy for the magistrates who are left as the only laymen among the rising sea of experts in the courts. I urge my right hon. and hon. Friends to consider sympathetically the case for appointing more stipendiary magistrates. Their appointment can be reconciled with the basically lay magistracy and may well provide some useful leavening.
We must give considerable attention to training in the new circumstances. I welcome the provision in the Bill for training for lay magistrates. I want to look in some detail at the kind of training that is provided. I was a little put out by the reference of the hon. Member for Galloway (Mr. Thompson) to "legal training". I agree entirely with my hon. Friend the Member for Glasgow, Garscadden (Mr. Small) that not all human wisdom is to be found in legal textbooks. I hope that the training given to lay magistrates will go beyond purely legal training and will include some social training, 1505 so that lay magistrates will gain some comprehension of social problems.
Many of the cases that are dealt with day in and day out in the burgh courts are not in themselves evidence of crime, they are evidence of social problems. There are the cases that fall under the heading of drunkenness. Such offences constitute a significant proportion of the cases that go to the Edinburgh Burgh Court and make up a distressing proportion of the total number of cases dealt with in Scotland. In 1973 there were no fewer than 16,000 "drunk and disorderly" in Scotland. That compares with only 99,000 such cases in England and Wales.
We must remember that many offences connected with drunkenness are brought before the Scottish courts under the heading of breach of the peace. If we couple the offences of breach of the peace with offences of drunkenness we have the alarming total of about 45,000 cases connected with drunkenness being brought before the burgh courts in Scotland. That number must be compared with the figures for England and Wales. It is an alarming comparison. Scotland, with one-tenth of the population of England and Wales, has half the number of offences connected with drunkenness. The bulk of those cases go to the courts which will be district courts under the Bill.
The figures that I have given are a measure of a real, alarming and grave social problem. I am moved to ask what purpose is to be served by treating a social problem as a crime. We have evidence from researches that of the large number of people who end up in the courts on charges relating to drunkenness, about half of alcoholics. I refer to only one of my constituents, who has now appeared and been convicted before the Edinburgh Burgh Court 317 times on charges of being drunk and incapable. What possible purpose is served by taking such a person to the courts time after time? Would it not be better to try to provide some treatment?
What possible purpose is served in treating what is basically an illness as if it were a crime? Perhaps we should give the same degree of urgency which we are giving to the Bill to the circular dealing with community facilities for 1506 alcoholics, which has now been lying around in various departments in the Scottish Office for 18 months.
There is the other heading of offences concerned with vagrancy. In Edinburgh we operate under the Edinburgh Corporation Confirmation Order, which provides two definitions which must be met before a person can be convicted of vagrancy. First, the person charged must have no lawful means of support and, second, he must have no fixed place of abode. The problem with this is that time and again the lay magistrates who have been operating in our burgh court have refused to recognise supplementary benefit as a lawful means of support, which suggests an interesting attitude to the Department of Health and Social Security.
These magistrates have also refused to recognise a lodging-house as a fixed place of abode. I have another constituent who, only the other month, was put away on a charge of vagrancy although he has been living in the same lodging-house for the past 10 years. That, I would have thought, constituted a fixed place of abode. This is a matter of acute concern to me because, as the Minister will be aware, 800 of my constituents live in lodging-houses, mainly because of the serious problem we have in Scotland of homelessness among single adult people.
Many of these 800 constituents are regularly charged with vagrancy offences. It is interesting that these offences reach a peak which coincides with the onset of the Edinburgh Festival. What is particularly bad is that when these people are fined, because they live in a lodging-house it is said that they have no fixed place of abode and therefore they are given no time to pay. Therefore, in the majority of cases, when a fine is imposed these people are imprisoned—as has happened on most occasions to my constituent, who has appeared 317 times on drunkenness charges.
I am rather concerned about the Bill's doubling of the fine. The courts are to be given power to fine not up to £50 but up to £100. I would appreciate an assurance that this will not result in a corresponding increase in the time served in lieu of a fine. I know that the maximum term is the same, at 60 days, but the effective maximum is most cases already is 30 days. Some assurance on this point would be helpful.
1507 The main point remains that I do not see much point in treating alcoholism by bringing charges alleging drunkenness. I do not see much point in trying to treat the problem of the single homeless adult by bringing vagrancy charges. We should consider the approach of our society to these social problems. I hope that the Government will bear that in mind. In the meantime, if we are to continue with this system it is imperative that recognition of the social problems which give rise to these offences be included in the training given to lay magistrates.
§ Mr. James Sillars (South Ayrshire)
Will my hon. Friend clear up one point? I agree that lay people should be given training on the social as well as the legal aspects. Does my hon. Friend also suggest that stipendiary magistrates should receive this background training?
§ Mr. Cook
Indeed. I entirely accept that. I hope that if we do this training, it will not be confined to the lay magistracy. I can think of many members of the legal profession, not only in the lower courts, who would benefit from such training. We have the evidence of the children's panels, who have a well-developed and successful system of training. Many professional members of the legal bar could benefit from it. I hope that some lessons will be learned from this system when we begin training for the district courts.
The hon. Member for Edinburgh, Pent-lands (Mr. Rifkind) said that in Edinburgh in one month 280 cases were brought to the court, of which 250 pleaded guilty. The interesting point, which the hon. Gentleman neglected to mention, is that in none of the 250 cases where there was a plea of guilty and a conviction did the lay magistrate call for any kind of background or social report before sentencing. That is an unsatisfactory situation. It is not one which the House ought to tolerate. I hope that the Government will take the opportunity provided by this Bill to change that situation.
§ 9.35 p.m.
§ Mr. Harry Selby (Glasgow, Govan)
I live in an area in Glasgow which had no justice of the peace for 10 years. People would come to me with papers for signing 1508 by a JP. I had to send them elsewhere for one. I made representations about the appointment of a JP. I nominated three people—a church worker, a trade union official and a political agent of some years' standing. Not one of them was selected.
I ask the Secretary of State to ensure that every area is properly represented. More than one-third of the JPs in Glasgow live outside Glasgow, which is a disgrace. I hope that when the process of selection takes place a person's status in society is not taken as a yardstick of his intelligence. It is not always the bailie with the most years' service who is the best bailie.
I went, with an individual who had been charged, to a court where the bailie had served for three years. He should have been a good bailie by that time. He had two similar cases to deal with. One was of the type mentioned by my hon. Friend the Member for Coat-bridge and Airdrie (Mr. Dempsey). The person concerned had gone to a public toilet at 11 o'clock and found it shut. It was in a dark corner of Govan Road. He went round the back and was arrested by two detectives. The bailie fined him £5 for not going home. In the other case a person deliberately stood on the pavement edge and spent a penny. He was fined £5 for not looking for a dark place.
My hon. Friend the Member for Glasgow, Queen's Park (Mr. McElhone) referred to the question of pawn tickets. Some Members seemed to think it a joke, but people still put things in pawn and they still lose tickets. People still need to get forms filled in, and in areas where there are few JPs it is a difficult matter. It is nearly always working class people who are in difficulty.
I have never stood in a dock. I have never pleaded a case in a dock. I have never sat on a bench as a bailie. I have never wished to sit in judgment of my fellow men. I have never wanted to be a Solomon. Since we are talking about cases in the lower courts, and petty crime, we need not worry too much about the legal training expected of JPs. What is required is an understanding of life—how one's neighbours live and how one has lived oneself. No one can say that he has not broken the law in one way or another.
1509 I hope that when it receives the names from the nominated bodies the executive will strike a fair balance, so that the working class is properly represented.
§ 9.40 p.m.
§ Mr. Hector Monro (Dumfries)
We have had an interesting debate in which many hon. Members have covered the broad principles of the Bill. The hon. Members for Galloway (Mr. Thompson) and Inverness (Mr. Johnston), representing the Scottish National Party and the Liberal Party respectively, have strong reservations about the changes from the October 1973 proposals which are contained in the Bill. We appreciate the necessity for the Bill and recognise the need for its rapid progress through the House because of the Local Government (Scotland) Act which comes into force in the spring.
The Bill translates the two lay summary courts in Scotland—that is to say, the burgh courts and the JP courts—into district courts. That is a significant change. I share the view of my hon. Friends that an opportunity for reform has been lost. The chance to reform the law comes but seldom. The Secretary of State has not proved his case for continuing a system which is similar to the present one, and has failed to take advantage of a great opportunity. At the very best, so far the case has not been proven.
I join the hon. Member for Glasgow, Queen's Park (Mr. McElhone) in paying warm tribute to the justices of the peace, whether they are ex officio or JPs in their own right, for all they have done and for the part they will play in future. The tasks which the district courts will take on have not been put into perspective. The most recent figures I have are for 1970, when there were 210,000 cases of summary justice in Scotland, of which 116,000 were in the sheriff courts, 85,000 in the burgh courts and 9,000 in the JP courts. So we are talking about just under half the cases of summary jurisdiction in Scotland. That is a significant figure, and it is one reason why so much concern has been expressed that we should get the system right.
The hon. Member for Edinburgh, Central (Mr. Cook) spoke about the social problems, and I agree with what he said about training. This is an opportunity which must not be lost. As he knows, 1510 when I was in the Scottish Office I took a particular interest in alcoholism. I agree with him that the facilities and resources in Scotland for dealing with this terrible illness are inadequate. I hope that when the Secretary of State has resources, which I know are not easy to find at present, further assistance will be given in providing the necessary facilities.
Over the last three years there has been considerable controversy. The Conservative Government had sound reasons for a change to stipendiary magistrates within the context of the sheriff court. As Scotland has a long tradition of professional justice, as indeed of lay justice, this view was supported by an influential body of opinion—and that opinion should not be cast aside as lightly as the Government have sought to cast it aside in this debate.
Therefore, in his reply the Minister should spell out in a little more detail who has advocated so strongly the return to lay summary justice. We know that The Cities and the Convention of Royal Burghs are in favour of lay justices, but may we be told what is the view of the County Councils' Association? We understand from my hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind) that the Law Society is not in favour of the change. I do not think that the weight of evidence—other than the Secretary of State's personal view—has been sufficient to embrace this major change. I shall look forward to hearing the Minister give more factual details about which bodies supported this case over and above the two local authority organisations which I have mentioned.
Having accepted the position on the principle of the subject, which has been so clearly expressed by so many of my hon. Friends, I move on to consider the more detailed points in the Bill. A great many will be raised in Committee, but there are a number on which we should like answers tonight, so that when we reach the Committee stage we shall have a basis of fact on which to argue amendments.
The first point on which I wish to question the Minister relates to the staffing of the district authorities to run these courts. It is well known that legal assistants are in desperately short supply in the authorities. Where are we to obtain, by the middle of May, legal assistants who 1511 can be spared from local authority work to undertake a changeover to the new system and to staff the courts? The weight of work will be very much greater, and I believe that these legal assistants will need to be whole-time in the running of these new courts. The courts cannot be staffed by the type of local authority officer who works only on a part-time basis. It will be very difficult for such an officer so to organise his local authority timetable that it embraces work in supervising district courts.
The Government, so far, have given no idea of the practical difficulties of staffing the courts by the middle of May. All the district authorities are now considering where the courts shall sit. Perhaps we can be told whether accommodation will be available.
There is also to be borne in mind the question of cost. The new set-up will cost more money than the present one. I hope that we shall hear a little more about the estimated workload of these courts, since this matter has been highlighted by several hon. Members in this debate.
The hon. Member for Glasgow, Queen's Park was wrong to say that district courts would not deal with motoring offences. Perhaps the Minister will clear up that matter. I understand that they can deal with motoring offences; they can endorse licences but cannot disqualify.
§ Mr. McElhone
Road traffic offences have always been a sheriff court matter. If the system has been changed, it is certainly not in the Bill.
§ Mr. Monro
We shall listen to the Minister's reply with interest, and we hope that he will clear up that matter.
I hope that we shall be given a little more information about the procurator fiscal. I understand that responsibility in that respect will lie with the district, and that eventually the duties of the procurator fiscal will be transferred to the Lord Advocate and the Crown Office. I hope that the Minister will tell us when this will happen throughout Scotland. I know that he said that to begin with this would have to be done on the basis that the Lord Advocate's procurator fiscal service could cope partially at present, but certainly not totally. We would like to know when this will happen.
1512 I turn now to training. Again, I have grave reservations about the timetable and who is to do the work. I notice that in future the new justices committee, which I welcome, will be responsible for training, but that committee will not be set up until the Bill has been enacted. Training should be going on now, because it will be the linchpin of the success of these courts in future.
I press the Minister on the timing. As a justice of the peace I had a letter in December. I have not heard from any colleagues who are justices that timetables have been arranged for training. Does the Minister anticipate that the one training officer to be appointed can look after the whole of Scotland? Will the courses be residential? Where will they take place? I recall that in my days as Civil Defence Commissioner I went to Taymouth Castle for civil defence courses lasting two or three days. Is that the kind of thing that is envisaged for the training of justices in future?
It is no use the Government saying that they have not had time to consider these matters. They have been in office for nearly a year. They should have contemplated doing this last summer rather than now.
Turning to the appointment of justices of the peace, I declare my interest and position as a JP. I am sure that the hon. Member for Queen's Park has read paragraph 37 of the White Paper on justices of the peace and justices' courts. I am in the same position as the hon. Gentleman. A Member of Parliament should not sit as a justice in his own constituency. I am sure that he does not do that.
The hon. Member for Coatbridge and Airdrie (Mr. Dempsey) made a useful contribution to the debate. Whilst we appreciate the good work done by justices, we must not overlook those who want to be involved in this type of work—particularly social work. These justices can put their names forward for consideration for membership of children's panels.
Our real difference with the Government is over the issue that was raised strongly in another place concerning the nomination of one-third of the members of district councils as justices. I believe that is wrong, and that provision was removed in another place. Lord Hughes 1513 made it clear in another place, giving very cavalier consideration to what their Lordships were saying, that this provision would be replaced when the Bill came back to this House.
I hope that the Minister, in replying, will give us at least a firm statement that the matter will be reconsidered before further amendments are put down in Committee. If he does not, at the risk of giving the Patronage Secretary and Deputy Chief Whip a coronary, we may well be disposed to divide the House, because we think this is a crucial point in the Bill—[Interruption.] My own Whips are away looking for troops.
I think that this is the way out of the predicament into which the Minister has got himself. Why cannot the normal justices of the peace advisory committees, which are now in force and are chaired by the Lords Lieutenant, be trusted to appoint the 400 or 500 justices throughout Scotland? It is not an enormous task, and those advisory committees know their stuff. I see no reason why that should not happen.
The point was made that it is possible that justices might not be resident in all areas if they were appointed, because of their position as district councillors. There will be a much better geographical spread and an opportunity for a much fairer selection if that is done by the normal justices of the peace advisory committees.
There are two criticisms. First, the system will be grossly weighted against the landward areas. Secondly, how will the district authority nominate one-third of its members? Many people have serious doubts that the matter will be decided by a party caucus before a meeting and there will be no careful selection in terms of quality, which we feel is so important with the appointment of justices. That point was well brought out by the hon. Member for Galloway and by the hon. Member for Inverness.
The Bill indicates that provosts, bailies and police judges will be promoted automatically to be justices in the new courts. Will they be plus or minus the one-third, or will they be included in the one-third? That could make a significant difference in the balance of the appointments.
I want to press the Minister on another important point, of which the Govern- 1514 ment are unaware. They say that the provosts, bailies and police judges from burghs will be appointed ex officio justices of the peace. Why is it that the present chairmen of district councils, who are also ex officio justices of the peace, will not be in a similar position? Is that not grossly unfair to the landward areas? There is not a squeak from the Government Front Bench. I should like to hear why there is such gross discrimination against the rural areas in Scotland, although it is understandable perhaps from the point of view of Government supporters.
My next point is equally important in relation to the addition to the original Bill proposed in the other place by Lord Selkirk and Lord Balerno. I raise this point in relation to the initiative to appoint a stipendiary magistrate, if required, by the Secretary of State. The position at present is fine. However, if the Government fulfil their intention, as indicated by Lord Hughes in another place, only the district authority can initiate the appointment of a stipendiary magistrate. This may be satisfactory, but it seems to me that we would be in a better wall-back position if the Secretary of State, who should retain his supreme authority in Scotland, also had the right to appoint a stipendiary magistrate if he felt that it was in order to do so.
§ It being Ten o'clock, the debate stood adjourned.
§ Question again proposed.
§ Mr. Monro
This is important, for several reasons. Not only are we allowing to let slip an opportunity which may be required in the future—and we have to bear in mind what others have said—we shall be cutting 250 JP courts into about 55 district courts. The work load will be very heavy in those 55 courts. It could be that the Secretary of State had grave reservations about the working of the lay justices in those courts and would like to see the initiation of stipendiary magistrates. This, in a way, was behind the thoughts of the hon. Member for Edinburgh, Central. I have heard that Edinburgh would not take it amiss 1515 if it had a stipendiary magistrate. Glasgow's stipendiaries each deal with about 15,000 cases a year, which clearly shows the valuable work that they do in Glasgow. I hope that we shall have a favourable answer from the Government about that.
I hope, too, that the Minister will deal with the point brought out so well by my hon. Friend the Member for Edinburgh, Pentlands about the different maximum penalties under a lay magistrate and under a stipendiary. I should like to know why the practice should be continued when it is obviously an anomaly.
I come, then, to legal aid. I want to be sure that it will work in practice. I do not suggest that any Government supporter will be drunk and disorderly tonight—certainly not the Secretary of State—but were he to appear in court tomorrow morning at 10 o'clock, would he be able to get legal aid then and there? At present, in the sheriff court the sheriff could arrange legal aid, but can these lay magistrates arrange legal aid at short notice, and will it be practical to provide the solicitors to defend anyone appearing in court at very short notice? This is important, but it is a practical point because we are naturally in favour of bringing in this legal aid provision. It is a valuable one, but we see considerable difficulties in its way.
Is the Minister ready to appoint a director of the Scottish courts administration, now that Lord Wilson has been appointed sheriff as from 1st January?
All in all, we have many reservations about the Bill. We appreciate the urgent need for it to become law. But we feel that it is crucial to have favourable answers to our questions before we announce our future intentions in relation to our opposition to it.
§ 10.4 p.m.
§ The Under-Secretary of State for Scotland (Mr. Harry Ewing)
It is inevitable that this debate has been almost entirely centred on whether we should have lay participation in the new district courts or whether those district courts should be fully professional.
The hon. Member for Dumfries (Mr. Monro) suggested that some of my hon. 1516 Friends might come under the influence of drink, and I turn my mind back to the winding-up speech in last night's debate when my right hon. Friend suggested that in this Burns season a toast to the Lassies would be appropriate. Even in the few moments since the hon. Member for Dumfries resumed his seat I have made up a little parody of some lines from "Tam o' Shanter":When to drink you are inclinedOr Cutty Sarks run in your mindYou have no need to be afraidBecause in the district court you'll get legal aid.The debate has highlighted the difference between the two sides of the House. I am sure that no one, in whichever party in opposition, would dispute that the collective experience and, therefore, I suggest, the collective wisdom of my right hon. and hon. Friends in the work we have been discussing has been invaluable, and, of course, this weighed heavily when it came to a decision on whether to have lay participation in these courts.
I have been asked about the representations made to the Government about lay participation. The hon. Member for Dumfries asked what were the views of the Association of County Councils. I do not know why he picked out that association. Although it was present, with other local authority associations seeking a continuation of lay justices, the ACC did not express a view.
I was also asked about the staffing of the district courts by the district authorities. We have been told by the local authority associations that the new districts will be able to provide legally qualified clerks of court, either from their full-time staff or from the regional staff, which is another sources of supply which could be tapped should the need arise, or from local solicitors appointed on a part-time basis. The important thing is that the staff would be legally qualified.
Hon. Members have asked about the range of offences that will be tried or considered in the new district courts, particularly traffic offences. It was originally proposed that these courts should try traffic offences and have the power to endorse a driving licence but not suspend it. That, however, is not included in the Bill. The new district courts will cater for much the same range of offences as the burgh police courts do at present.
1517 We regard training as all-important in setting up the new district courts. My hon. Friend the Member for Edinburgh, Central (Mr. Cook) brought out some very valuable points in this connection, particularly in relation to the question of social background, and including the problems of alcoholism and vagrancy, which are serious. It is the intention to include training on the question of social background, and no doubt alcoholism and vagrancy would be included within that context.
Clause 14 empowers the Secretary of State to make schemes for the training of justices of the peace, and lays a duty on the justices' committee in each area to implement and administer these training schemes. Training may be considered under two heads—what training it may be possible to give existing justices before the district courts open for business on 16th May and the long-term arrangements when the new scheme is fully operative. For the transition to the new court, one must obviously rely heavily on the experience of existing burgh magistrates and justices of the peace. About 700 experienced magistrates and 1,000 justices with court experience have expressed their willingness to serve in the district courts, and justices without experience have also offered to serve. Many of the justices to be nominated by district councils will no doubt also wish to sit in these courts.
Even the experienced justices and magistrates should receive some training appropriate to their experience before 16th May. So some training will be given even to the most experienced magistrates before that date. Those with no experience who we consider cannot begin training too soon if they are to contribute to the new courts will be given training as well.
The Government regard training as so important that a basic scheme has already been drawn up on lines approved by the Central Advisory Committee on Justices of the Peace, provided over by the Lord Justice Clerk. This scheme will be sent very soon to the chief executives of district councils, with a memorandum of advice on local arrangements for giving effect to it, including such matters as securing the services of sheriffs, lawyers with court experience, university lecturers in law, social workers and others to give lectures to the justices.
1518 As my right hon. Friend said, the post of training officers for justices of the peace has been created in the Scottish Office, and it is hoped to appoint a suitably qualified person very soon. We are intent on proceeding as speedily as is consistent with efficiency and good training in order to ensure that the justices who staff these courts will have some training before 16th May; in the longer term the training will become much more extensive.
The hon. Member for North Angus and Mearns (Mr. Buchanan-Smith) made heavy weather of the previous Government's White Paper and their change of mind and what brought it about. At times he was struggling to justify their change of attitude about lay participation. He must know that that White Paper, which proposed the retention of lay judges, received generally warm support, apart from the proposals of non-legally qualified clerks and from a section of the legal fraternity.
When we came to office in March 1974, we received strong representations from the local authorities. In our view, it was reasonable to assume that there was a case for maintaining a lay element and that that case had widespread support. It is important to recognise that that view was expressed by local authority representations from all political shades of opinion and not from one particular shade of opinion, as seems to have been thought by some Opposition Members who have spoken this evening.
§ Mr. Buchanan-Smith
On the latter point, I agree. There is nothing political about this or about the opinions expressed. The hon. Gentleman has mentioned those areas in which strong representations were made and on what very important parts of these proposals the representations were made. Surely those were of extremely great importance. Will he also say what was the opinion and advice from the central advisory committee?
§ Mr. Ewing
Yes, I shall be coming to the opinion and advice of that committee. The House will also find that opinion and advice very interesting.
We do not regard the objections voiced by the legal profession as being minor 1519 objections. They were considered. But what we are saying as a Government is that we took the broad consensus of opinion, which led us to the view, rightly, that lay participation should continue.
On the question of advice from the Central Advisory Committee on Justices of the Peace, that committee discussed the proposals on two occasions. On the first occasion it considered the proposals based on the working party's report, and supported in principle the scheme which was afterwards outlined in the White Paper. On the second occasion the committee considered the matter again in the light of the representations against the White Paper and recommended in favour of lay justices by a narrow majority. Therefore, the advice of that committee, albeit by a small majority, was that we should continue the lay participation.
§ Mr. Rifkind
Will the hon. Gentleman say whether, however, that slight majority in favour of lay magistrates was in favour of lay magistrates appointed by the Secretary of State or lay magistrates elected by the local authorities? There is a very important difference.
§ Mr. Ewing
The fact is that the advice that we have, broadly, is that lay participation should continue in the district courts. I feel that I have dealt adequately with that point.
We are prepared to consider anything that is said or proposed—including the remarks of the hon. Member for Dumfries, who asked us to be flexible and mentioned other matters—without giving any promises or making any commitments. It must be put on record that the advice that we have and the broad consensus of opinion is that lay participation should continue in those courts.
On the question about the quality of justice, raised by the hon. Member for North Angus and Mearns, it is worth 1520 quoting from paragraph 3 of his Government's White Paper, wherein they said:We also believe that a proper system of training will result in a professional and uniform standard of justice among lay justices.There can be no doubt that the standard of justice and the uniformity of justice—if that is the correct expression—will be achieved by the system of training which we shall introduce as soon as possible.
I turn now to the contribution made by my hon. Friend the Member for Glasgow, Garscadden (Mr. Small). In his capacity as a former magistrate he brought his wealth of experience to the debate and illustrated the great risk involved in turning over this level of court to a fully professional system. We must appreciate the level of court about which we are talking and are about to legislate.
The hon. Member for Galloway (Mr. Thompson)—surprisingly, in my view—agreed that there should be stipendiary magistrates in all these courts and that the courts should be professionally staffed. I got the impression that later on, when the leader of his party was present, he did not agree with the hon. Member. This doctrine comes strangely from a party which considers that in certain respects the people of Scotland are able to legislate for themselves.
Members of Parliament could to a certain extent be described as amateurs. We preside over great legislative affairs. However, we are not prepared to give ordinary people at this level of justice the right to judge their fellow men. It seems that the policy of the party of the hon. Member for Galloway is that people can have a say in their own affairs as long as they do not want to take decisions such as this. In Committee I shall want to hear how that stance can be justified.
My hon. Friend the Member for Coatbridge and Airdrie (Mr. Dempsey), in welcoming lay participation, again brought to bear a great wealth of experience. I reassure my hon. Friend that there are no fears whether we shall have a sufficient number of justices to staff these courts. The best information now available to us is that about 1,730 existing justices have offered to serve, of whom about 1,000 have at least some experience in court work. With the addition of about 700 existing burgh magistrates and 1521 police judges, this provides a hard core of experience for the new courts. We expect also that there will be a further 400 justices flowing from the appointments for the district courts. In total there will be about 2,500 justices willing to do all the work. This is probably far more than will be required.
§ Mr. Ewing
There is no evidence to support that contention. The figure of 2,500 compares with the 1,600 calculated to be required in paragraph 30 of the White Paper. I believe that there would be a good response if we were to make a search for new justices, but we consider that we have no difficulties in that respect.
My hon. Friend also raised the question of loss of earnings. The Bill provides, as does the present law, for the payment of an allowance to justices of the peace. There will be provision for compensation for loss of earnings, but it will have to be as at present. Therefore, the maximum will apply and no doubt the level of the maximum will be reviewed from time to time. It obviously depends upon the circumstances of the individual. The present maximum of £6.70 is not liable to tax.
There is provision in Clause 15(2)(c) whereby the Secretary of State is empowered to deal with justices who do not attend to their duties in the court. On a constituency basis, I should tell my hon. Friend the Member for Coatbridge and Airdrie that in the Monklands district, which is in my hon. Friend's constituency, we have 24 experienced judges and 16 magistrates who are ready even at this stage to serve the new district courts. In the Motherwell district there are 35 experienced justices and 14 magistrates who are ready to serve in these new courts, so there should be no trouble in staffing them.
The hon. Member for Inverness was in favour of the professional system, although, as my right hon. Friend the Secretary of State pointed out, the Royal Commission on local government did not quite take the view expressed by the hon. Member. I got the feeling that it had slipped the hon. Member's memory that the Royal Commission took the same view as the Government, which is that 1522 these lay courts could be set up in conjunction with the district authorities.
On the question of staff shortage in respect of procurators fiscal, my right hon. and learned Friend the Lord Advocate is quite confident that there will be people to take overall prosecutions in two stages. The hon. Member for Dumfries asked about a timetable for the taking over of these prosecutions by the Crown. We expect all the procurators fiscal will be in these courts by May 1976. My right hon. and learned Friend is confident that we can meet this date without any problems.
I was interested in the contribution by my hon. Friend the Member for Glasgow, Queen's Park (Mr. McElhone), and I hesitate to say that the Glasgow police court stories are legion. If time allowed I could tell a few myself, but I shall not be tempted to do so at this time of night. However, my hon. Friend brought out a very important point concerning the level of these courts and the type of case to be tried there. My hon. Friend the Member for Glasgow, Govan (Mr. Selby) made the same point. It is important to realise that the people finding themselves in these courts will, by and large, be normal, law-abiding citizens who fall foul of the law once in a lifetime. There can be nothing more awe-inspiring than to have to go into a court faced with the paraphernalia of the law, probably for a minor offence. In the past the courts at borough police court level dealt admirably with this type of offence. When the district courts come into being the set-up and the staff will be adequate to take over this type of offence.
I wish to correct what was obviously a wrong impression by my hon. Friend the Member for Queen's Park. The Bill in no way affects the constitution of the licensing court or the court of appeal. The district courts will not take over licensing functions. The licensing courts and the court of appeal will remain as they are. The Bill does not affect licensing courts or licensing appeal courts.
§ Mr. McElhone
We are grateful to my hon. Friend for giving each hon. Member an answer to the points raised. However, the Bill mentions the question of licensing courts. If there are no longer to be magistrates in areas such as Glasgow, who will staff the licensing courts? I am concerned that suitable 1523 people should perform this important function.
§ Mr. Ewing
That is a different matter, which does not arise on the Bill. My hon. Friend mistakenly refers to magistrates. There will be no such person, as a result of local government reorganisation. However, I assure my hon. Friend that we shall write to him on the question of staffing and he will be given the information he requires.
§ Mr. McElhone
I realise that we shall have no more magistrates. However, there has been great unhappiness about the question of sheriffs dealing with legal aid applications. Who will judge the question of legal aid in the district courts?
§ Mr. Ewing
The matter of the licensing court is provided for in the Local Government (Scotland) Act 1973. Half justices of the peace and half county councillors will staff the licensing courts and licensing appeal courts.
The question of legal aid is important. In summary cases in the sheriff courts legal aid is granted by the sheriff, and the Government take the view that it is entirely consistent with this that justices should grant legal aid in district courts. Arrangements of this kind will have the advantage of being quick, decisive and inexpensive, and will be carried out by people with knowledge of local circumstances. We accept that the one matter in which the justices who will staff the courts will not be experienced is legal aid. Therefore, we are anxious to ensure, and will ensure, that they will have training in legal aid matters before 16th May.
§ Mr. Robin F. Cook
Is my hon. Friend aware that there is a considerable body of opinion which is concerned that the justice who granted legal aid might subsequently hear the case. Would not that be unsatisfactory?
§ Mr. Monro
We are grateful to the hon. Gentleman for his detailed reply, but if he is coming to his peroration, may I point out that he has not answered 1524 the two points about which we have pressed most strongly—the appointment of the justices to the extent of one-third by the district authorities, and the amendment made in another place on the opportunity for the Secretary of State to appoint stipendiary magistrates? We shall want an answer on those two matters before we make a decision.
§ Mr. Ewing
It was on those two points that I was going to conclude. On the question of stipendiary magistrates and the Secretary of State, I ask the House to await our proposals. If they await our proposals with patience I am sure that their patience will be well rewarded. I ask the House to be a little more patient on the stipendiary issue. We shall be making proposals but I cannot say any more at this stage.
It is the Government's view that the district councils should have the right to appoint a third of their members to staff the district courts. It is a long time ago but I said at the beginning of my remarks that I was prepared to examine any alternative proposals put forward by the hon. Member for Dumfries and his hon. Friends. I also said that I was not prepared to give any unqualified commitment or assurances or anything of that order. At present we consider that the district councils should have the right to appoint a third of their members to staff the district courts.
The view is prevalent that the local authorities will play a large part in the appointment of the judges. The fact is that the majority of appointments will remain with the Secretary of State for Scotland, as is the position with the justices now. Even if all district councils appoint their full one-third, the total number of ex-officio justices will be only about 400 for the whole country as against about 5,000 justices at present.
There are no grounds for anyone to say that the local authorities will be playing a major part in staffing the district courts. They will be playing a significant part but not a major part.
§ Mr. Rifkind
Does the Minister accept that they will be playing a major part in the four cities of Scotland where the bulk of the population is centred?
§ Mr. Ewing
That is possibly true. That must be considered, but on balance 1525 we consider that it is an acceptable proposition. I am not sure whether the hon. Gentleman is right that even in the four cities the district councils will play a major part in staffing the courts. I would want to consider that point. I am not absolutely sure that that is correct.
No one underestimates the importance of the question of whether or not lay participation should continue in the district courts. It is our view that it should continue. It is our view that the Bill is a good Bill, and, like my right hon. Friend, I commend it to the House.
§ Question put and agreed to.
§ Bill accordingly read a Second time.1526
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).