HL Deb 09 February 1836 vol 31 cc177-83
The Marquess of Salisbury rose

to call the attention of their Lordships to a subject upon which it would not be necessary for him to trouble them with many observations; yet it was one of the most important subjects that could possibly come under their consideration. Their Lordships were aware that for many years the manner of appointing Magistrates to the Commission of the Peace in counties had been exclusively through the recommendation of the Lord-lieutenants for such counties respectively. He had taken some pains to ascertain whether any instance could be found of such a proceeding being adopted as to insert the names of any gentlemen in the Commission without reference first to the Lord-lieutenant, or without his concurrence. He believed the Lord Chancellor, or the Commissioners holding the Great Seal, had always made it a rule never to appoint a magistrate without the full consent and concurrence of the Lord-lieutenant. In 1829, a case occurred in which a name that had been in a former list was omitted, and on the restoration of that name it was thought necessary that the Lord Chancellor should explain why he had replaced it in the Commission. The explanation was, that the name of the gentleman appointed had been inserted in a former list, as recommended by the Lord-lieutenant, and that it was not expedient, without reason assigned, to exclude it from the new list. He mentioned this case solely for the purpose of showing with what jealousy the right of the Lord-lieutenants in this respect was guarded— so much so, that upon a departure from, the practice in a single instance, it was deemed prudent to make a public explanation of the motives. He had made diligent search to ascertain whether, during the time of the last three Lord Chancellors, the practice had been maintained uniformly, with the exception he had named, and he bad found that it had been so maintained. Having thus explained, or rather reminded their Lordships of the almost invariable practice, he would now call their attention to a signal and dangerous departure from that practice in the course of last year. During that time the Great Seal was in the hands of Commissioners. He was not aware whether any Lord-lieutenant had thought it advisable to recommend any gentleman for the Commission of the Peace; but that of which he complained was, that the noble Lord, the Secretary of State for the Home Department, in concert, no doubt, with his colleagues, had recommended many Gentlemen to be put into the Commission of the Peace without the concurrence of the Lord-lieutenants, and which had been accordingly inserted by the authority of the Great Seal. He need not point out how much this proceeding was at variance with the established practice, and how much it bore on the face of it the appearance of a party manœuvre for the purpose of placing political partisans in the Commission of the Peace. He did not mean to bring so heavy a charge against the noble Secretary of State for the Home Department; but it was the duty of that House to look at such proceedings with jealousy, and without respect to persons; and it was impossible not to understand that if the practice once became established as a precedent, Secretaries of State might be hereafter found ready to sacrifice their sense of duty to the love of place or of party. As he understood that the motion would not be resisted by the noble Viscount at the head of his Majesty's Government, he would not enter into further details at present. If it should appear that the power thus assumed had been exercised to any great extent, or that any undue appointments had been made, then it would become a question how far it might not be the duty of that House to proceed further in the matter. Every person would admit the danger of taking away the responsibility of appointing the Magistrates from the Lord-lieuten- ants of counties, and placing it in the hands of individuals who had not the means of knowing the characters of the persons to be appointed. The Secretary of State for the time being could not have that local knowledge which was necessary to direct his choice properly. He should conclude by moving for a return of the names and residences of the gentlemen who had been appointed to the Commission of the Peace in the different counties of England and Wales, on the recommendation of the Secretaries of State, and without the application of the custos rotu-lorum, from the 1st of January, 1835, down to the latest period.

The Marquess of Westminste

r had but a few observations to make upon the Motion of his noble Friend. His noble Friend had laid as a foundation for his Motion, the possibility, indeed the more than possibility, of a Secretary of State being influenced by party motives in the recommendation of a gentleman for the Commission of the Peace. Now, he only wished to put it to his noble Friend's candour and judgment to say, whether it was not also just as possible, that Lord-lieutenants might in some cases be influenced by party motives. He wished to know, whether his noble Friend considered that those functionaries were entirely removed from every suspicion of possible bias, and that Secretaries of State were the only persons liable to the imputation?

Viscount Melbourne

did not mean to object to the Motion of his noble Friend, who had very correctly stated the course that had been pursued by the Secretary of State for the Home Department, excepting in one respect. His noble Friend had led the House to suppose, that persons had been recommended to the Great Seal for insertion in the Commission of the Peace, without application to the Lord-lieutenant of the particular county for which such application had been made. This was not the case. His noble Friend, the Secretary of State for the Home Department had always first submitted the names to the Lord-lieutenant in order to ascertain his reasons for opposing or objecting; and in some cases only where the Lord-lieutenant had declined giving his recommendation, his noble Friend not concurring in the reasons given, had recommended the individual to the Commissioners of the Great Seal, who had acted upon such recommendation. Whether that course was or was not a wise and prudent one, under the circumstances, was a question for the consideration of their Lordships; and whether the persons so appointed were fit or unfit for the station to which in his discretion his noble Friend had advised their advancement, it would be for their Lordships to determine when the names came before them. For his own part, he could not be accused of inconsistency in upholding the conduct of his noble Friend; for' he had always publicly contended that the practice of leaving the appointments of Magistrates in the hands of Lord-lieutenants was a practice subject to great abuse. This had always been his opinion, and he had never concealed it. He did not affirm that the mode adopted by his noble Friend was the best remedy that could be devised; but some remedy he was convinced was necessary. His noble Friend had exercised his imagination in supposing the case that a Secretary of State might use his power in the recommendation of Magistrates for party purposes, he would draw upon the same poetical faculty for the picture of a Lord-lieutenant deeply involved in party politics, deeply engaged in election contests, and, perhaps, anxious to befriend one of the candidates for the representation of the county, naturally, under such circumstances, anxious to secure partisans of local weight and influence; and he would ask his noble Friend whether such a Lord-lieutenant would not be just as liable to a bias in the appointment of persons to the Commission of the Peace as any gentleman in the situation of his Majesty's Secretary of State. He had no objection to the production of the Return moved for by his noble Friend, with the names of the Gentlemen recommended to the Commissioners of the Great Seal during the last year.

The Lord Chancellor

—I do not rise, my Lords, to oppose the Motion of the noble Marquess, but to make a few observations, that my silence may not be mistaken for acquiescence in the doctrines which the noble Marquess has promulgated. The noble Marquess says that the responsibility of the appointment of Magistrates is in the Lord-lieutenants of counties. ["The Marquess of Salisbury: No."] I so understood the noble Marquess. Now, my Lords, by the constitution of this country, this responsibility rests with the Great Seal. It is undoubt- edly the duty of the Great Seal, in the discharge of this portion of the functions annexed to it, to seek information wherever information is to be obtained. It is therefore its duty to listen to the Lord-lieutenants of counties in making appointments, because of their local knowledge and general good information. But it is not the duty of the holder of the Great Seal to listen exclusively to those functionaries; and I have been more and more satisfied, from the experience I have had since my connection with the Great Seal, that if information should be drawn from such sources exclusively, without seeking elsewhere, great injury would be done to the public service. It may not be known that in some counties there are rules for the exclusion of particular classes and descriptions of persons from the Commission of the Peace, which rules do not obtain in other counties. Thus, were there not a discretion in the Great Seal, sometimes exercised in opposition to the recommendation of the Lord-lieutenant, there would be no uniformity of practice in the kingdom. So long as I have been connected with the Great Seal, I have exercised the right of appointment without submitting myself to the exclusive direction of the Lord-lieutenants; but, at the same time, in no instance without having communicated with them and heard their reasons and if, after hearing the grounds of objection, I still entertained the opinion that the individual was calculated to discharge the functions of a Magistrate efficiently, I should have departed from my duty if I had not inserted his name in the Commission of the Peace. This discretion, I am quite ready to admit, should be used delicately and sparingly, but it should not be surrendered. With respect to the appointments of last year, I believe that in no case was an appointment made by the Commissioners of the Great Seal without the attention of the Lord-lieutenant being first called to such appointment. There may have been instances in which appointments were made against the recommendation of the Lord-lieutenant, but none in which his opinion was not sought.

Lord Wharncliffe

observed that the question was not whether the Great Seal had the discretion claimed for it by the noble and learned Lord on the Woolsack, but whether the Secretary of State was the fit channel for the recommendation of Magistrates to the Great Seal,

The Marquess of Lansdowne

said, that the Secretary of State for the Home Department had not taken upon himself the power of appointing Magistrates. He had only taken upon himself, as any other person might, to recommend gentlemen of whose competency to discharge the magisterial functions he was enabled by his station to obtain an accurate knowledge. Upon the recommendation founded upon such knowledge, the Great Seal was left to judge for itself. The Secretary of State for the Home Department possessed, as their Lordships must well know, peculiar sources of information, not attainable by any other functionary. Their Lordships had heard that different rules obtained in different counties as to the persons eligible to the Commission of the Peace. This was particularly illustrated by the supposed expediency or inexpediency of appointing clergymen, according to the county. In some counties it was absolutely necessary to appoint clergymen on account of the scarcity of persons qualified for the magisterial station. But where the means existed of carrying on those functions without calling the clergy in aid, it was deemed advisable to exclude them. Now this was precisely the information that would fall under the notice of the Secretary of State for the Home Department, who would be able to determine where the rule of exclusion was a good one and where not. Undoubtedly, it had been the custom for Lord-lieutenants to nominate persons for the Commission of the Peace, and it was generally considered as their exclusive right. The responsibility, however, did not rest with them alone, but with the Great Seal; and it was open to the Secretary of State for the Home Department from time to time to make such observations and recommendations as he should think proper.

The Duke of Cleveland

stated, that within his recollection, the custos rotu-lorum of the county of Durham omitted the names of two gentlemen, from the list sent by him to the Lord Chancellor, without giving any public reason for the omission. The gentlemen felt themselves aggrieved by the proceeding, and applied to the magistrates and gentry of the county to know what steps they should pursue. What course they took he did not know; but, upon a representation made to the Lord Chancellor, the two gentlemen were reinstated in the Com- mission of the Peace. This was done, notwithstanding the omission of their names by the custos rotulorum, and it was done by Lord Eldon.

Lord Plunkett

observed that the practice in Ireland was in the first instance to apply to the Lord-lieutenant of the county, but he (Lord Plunkett) had on some occasions felt it his duty to put into the Commission of the Peace gentlemen who had been objected to by the Lord-lieutenants; and in other cases not to act upon the recommendation of that functionary. Had he been exclusively guided by the Lord-lieutenants, so as in all cases to have adopted their recommendations, he should have been guilty of a violation of his sworn duty. He admitted, however, that he had generally found the Lord-lieutenants of counties in Ireland actuated by the most praiseworthy motives in their recommendations of individuals. Although he had not in all cases concurred in their judgment, he did not mean to cast any imputation upon them.

The Marquess of Salisbury

remarked, that in the case of the two Gentlemen of the county of Durham, there was a great distinction between omitting names from. a list, and at once naming persons for appointment. He had been exceedingly unfortunate if he had been understood to have questioned in the smallest degree the right or responsibility of the Lord Chancellor in the appointments to the Commission of the Peace. What he had complained of was, that the Secretary of State should usurp the power of the Lord Chancellor, and carry those powers to a greater extent than they had ever been carried by any Lord Chancellor, and that at a moment when there was no individual upon whom to fix the responsibility of the Great Seal.

Motion agreed to.