HL Deb 21 July 1909 vol 2 cc663-78

*LORD JAMES OF HEREFORDrose to call attention to the present methods of selecting and appointing Justices of the Peace, and to move, "That a Select Committee be appointed to consider and report whether any and what steps should be taken to facilitate the selection of the most suitable persons to be Justices of the Peace irrespective of creed and political opinion."

The noble and learned Lord said: My Lords, I trust that you will allow me to occupy your attention for a short time while I bring to your notice a subject which I think ought to be regarded as one of considerable importance. I say of considerable importance because anything that affects the administration of justice in this country must be of great interest to everyone who has care for our institutions, and the nomination and selection of justices is certainly most directly connected with that administration. The position of Justice of the Peace is an ancient and most responsible one. For some six hundred years Justices of the Peace have been nominated by the Crown to administer justice. Justices of the Peace are Judges of Record, and, as your Lordships know, have responsible judicial duties to discharge. They can sentence accused persons to months of imprisonment, and may determine whether a man shall be tried for serious offences, including murder. Then there are their administrative duties which, though diminished by recent legislation, still require the exercise of great discretion.

I ask you to consider what manner of man it is who ought to occupy this office? I am aware that it is not possible to set up a very high standard, but the standard ought to be one of sufficiency. Justices have to expound and administer the Statutes of the Realm. They ought to be literate; they ought to be intelligent—and in intelligence I include the possession of commonsense—and, lastly, they ought to be persons of undoubted high personal character. Those are the only qualifications that I claim should be possessed by Justices of the Peace. Recent legislation has got rid of the property qualification affecting county Justices, and that unhappy term "social position" gives way before the increase of democratic influence and power. I am led to the conclusion that the qualifications to which I have referred are little attended to in connection with the nomination of persons for this position. For a period of seven years I had to deal with the nomination of borough Justices in the county of Lancaster, and I do not know that those who made the recommendations to me took any trouble to inquire into these qualifications.

The system pursued in the selection of Justices—I am speaking for the moment of borough Justices—is very definite. It seems to be this. The first step of a person who desires to be made a Justice of the Peace is to become an active politician, and then, having served his Party thoroughly, and, as someone once wrote to me, having done "a great deal of work after dark," he appeals to the local party manager. He says, "I have done good work for the Party. The other side made so many Justices for political reasons, and, being entitled to that position, I ask you to see that I secure it." Then the local party manager appeals to the general party manager of the district; the matter is carried forward and the aid of the Member of Parliament is enlisted, the assurance being given that "Mr. So-and-so wishes to be made a Justice of the Peace," and that he really is "a first-rate fellow," having "worked for us so very hard." Then the Member of Parliament comes into play, and I wish to say that some Members have, to my knowledge, done their best to frustrate the system I am attacking; but the opportunity for so doing is seldom given, and the result is that upon the word of the party agent the Member of Parliament has to appeal to the Lord Chancellor and say, "I ask you, on behalf of my local party interests, to appoint this man; if you do not, I may lose my seat."

My noble and learned friends Lord Halsbury and the Lord Chancellor could tell the House of the difficulties in the situation. I have only heard of the difficulties that are encountered. But I know that the late Lord Herschell and also Lord Halsbury and the present Lord Chancellor have, in taking the course which they considered best in the public interest, been censured and criticised by their political friends because it was said they had not done enough in the interests of their Party. Is this a satisfactory state of things? Year by year we are adding to the responsibilities and duties of the Justices, and year by year I am afraid the political influence in their appointment is increasing and the proper qualifications lost sight of. When I say that I mean that the influence is increasing amongst those who originate these nominations; I do not for a moment say that the influence is not discounted by those who have to make the ultimate choice.

The importance of maintaining a high standard on the Bench is clear to anyone who has had to deal practically with this subject. If you continue to appoint men insufficient to the discharge of the duties of the office you lower the standard of the magisterial Bench. As has often been said, the strength of the law lies in the respect in which it is holden, and the strength of the administration of the law lies in the respect in which the administrators are held. When I endeavoured to search out suitable men to go upon the Bench I constantly received the reply from the individual to whom I offered the position that he would be glad to be made a county Justice but that he would not sit upon the borough Bench because in that case he would have to occupy a position side by side with men totally unfit to discharge the duty of the office. The standard and sufficiency of many borough Benches in this county has been falling lower and lower owing to the present system of selection.

A word or two in respect of the selection of county Justices. I approach the question of the county Justices in a somewhat different spirit. There is some little misunderstanding of the relative position of a Lord Lieutenant and the Lord Chancellor. I do not know how better to define the exact position occupied by Lords Lieutenant and the Lord Chancellor than by quoting a definition which was given in your Lordships' House in 1836. In that concise language which that great man who was then the Leader of the Opposition, the Duke of Wellington, so often employed, he defined the position in this way— I know, and I believe that the Lords Lieutenant in general know, that the right to appoint the magistrates is exclusively in the hands of the person holding the Great Seal. Courtesy and custom have enabled the Lords Lieutenant to recommend to the person holding the Great Seal the names of gentlemen who were to be magistrates. That, I believe, is the exact relative position. Whilst a Lord Lieutenant has power to recommend I take it that cannot be the exclusive right to recommend. I know that many think it would be objectionable that they should have competition in recommendation, but at any rate the House of Commons has decided that matter so far as a Resolution of the House of Commons can decide it, because in the year 1893 a Resolution was passed that— In the opinion of this House it is expedient that the appointment of county magistrates should no longer be made by the Lord Chancellor for the time being only on the recommendation of Lords Lieutenant. I believe great smoothness of action has taken place. Great consideration and a great desire to avoid friction have been shown by different Lords Lieutenant, and they have been met by the Lord Chancellor of the day, who has done his best to act as far as possible upon the recommendation, but not upon the exclusive recommendation of the Lords Lieutenant. If the exclusive recommendation of the Lord Lieutenant were acted upon it would make Lords Lieutenant responsible for every appointment. That is not the case. The Crown makes the appointment and the Lord Chancellor is responsible for the due exercise of the Crown's power. Therefore it is the Lord Chancellor's duty primarily to secure that a sufficient number of Justices are appointed and that they shall be sufficient also in capacity.

But let us consider the duty cast upon the Lord Chancellor. There are nearly 21,000 Justices of the Peace in England and Wales and 3,000 commissions of the peace. The Lord Chancellor has to make inquiries such as he can and see that the necessities of each community in each petty sessional division, are met, and that there is a sufficiency of qualified Justices. Apart from the political question in the nomination of Justices, surely there is something to be said in favour of assisting the Lord Chancellor in the exercise of this important duty. There are two important points to bear in mind—first, to remove the selection of Justices from the area of political qualifications—that is the first demand that I think a citizen of this country has a right to make—and, in the second place, to find some method by which the Lord Chancellor should receive assistance in selection aiding his knowledge, which is not local, and bringing to bear upon it an impartial and unaffected judgment. If I am asked for my remedy, I reply that it is an impartial inquiry. If these evils do exist, is it not our duty to see if some remedy cannot be found for them? I therefore venture, with great respect, to commend this Motion to your Lordships' consideration.

Moved, That a Select Committee be appointed to consider and report whether any and what steps should be taken to facilitate the selection of the most suitable persons to be Justices of the Peace irrespective of creed and political opinion.—(Lord James of Hereford.)


My Lords, I have not had the advantage of hearing every word that my noble and learned friend said because he addressed himself to a more attractive portion of the House; but I think your Lordships may consider it convenient that I should say at this stage what I desire to say upon this subject, and if any question arises, anything in the nature of a complaint, I am quite certain your Lordships will allow me afterwards to give any explanation that may be necessary.

But I have not heard from my noble and learned friend, so far as I did hear what he said, any serious charge. I have myself desired an inquiry into this subject for upwards of two years, and my noble friend Lord James of Hereford has repeatedly suggested to me his desire for an inquiry on the grounds which I imagine he has stated to-night. I have dissuaded him more than once because, to begin with, I wanted a more full and ripe experience myself of what the true meaning is of this business of appointing Justices, and in the second place I hoped from what I heard that there was some intention of bringing this subject before the House of Commons —a thing I should have gladly welcomed because I think it would have tended to create a more wholesome and honest view on this subject than I am sorry to say has always prevailed in the country, and I know of no place in which jobbery and humbug in general has shorter life or shorter shrift than on the floor of the House of Commons. But having become conversant with these matters, and since no step seems likely to be taken, I think it would be wrong to postpone an inquiry of the fullest kind any longer.

I do not think that a Select Committee of either House is the best tribunal for this inquiry. If it was a Select Committee of this House they might be supposed to be influenced by one set of views; if it was a Select Committee of the other House the same thing might be suspected by the jealous critics who interest themselves in these matters. But I am able to tell your Lordships that the King has consented to the appointment of a Royal Commission for the purpose of investigating this subject in the sense in which my noble friend advocates that it should be investigated; that is to say, with a view of ascertaining how far you can get rid of those baneful elements in the appointment of Justices of the Peace to which he has referred.

It is necessary, however, I think, that I should say a few words, and they will be said quite dispassionately, with regard to my reasons for thinking that an inquiry is desirable. What is the position and what are the duties of Justices of the Peace? My Lords, they are the Judges of the poorer classes in this country. Those who can afford expensive litigation may go to the Courts of law; those who have large sums at stake may find their way to this House; but common justice among the poor is administered by the Justices of the Peace of England and Wales. Nearly every criminal case that is tried, from the smallest offence to the crime of murder, at one time or another, at one stage or another, comes before Justices of the Peace. They also try very heavy and important cases at Quarter Sessions. They have administrative duties of the utmost importance—the duty of licensing, than which few things can be more important—together with multifarious other burdens imposed on them by different Acts of Parliament.

Now, how should these places be filled in a system which is so useful and characteristic as this system of Justices in England? My Lords, what we should all desire to see would be that the best men should be selected without regard to anything else except that they are the best men to discharge the duties. Also we should desire to see—and one ought to dwell on that—that where there is a choice, as, indeed, there is in many, many cases—the selection among those who are suitable should be so made that no class, and no creed, and no party could complain that they were excluded by reason of their opinions, political or religious. I believe that is what we should all like to see.

I have to tell your Lordships that there are very great difficulties under the present system in accomplishing that which we all desire. I believe that no one except those who have held the place I now hold can have the intimate knowledge that is acquired in an office of that nature of the difficulties of the task, and that is, to my mind, one of the most unfortunate parts of the whole thing. Every one looks at his own corner. He looks at his own county, possibly at his own parish, and sees some gentleman whom he thinks eminently fitted for the place or who has given him assistance in his political aspirations, and who, he thinks, ought to be appointed. It is characteristic of human nature, and many people who hold that view seem perfectly unaware that any other part of England has to be considered, or that there are any other duties appertaining to the Lord Chancellor than, omitting all other considerations, to do the thing alone that would satisfy them and gratify their political friends.

My noble and learned friend has stated that the responsibility of these appointments is with the Lord Chancellor. That means to say that he is answerable if anything goes wrong, and he must, indeed, be a very tame-spirited person if he accepts responsibility if anything goes wrong without having had his say as to what is to be done in the discharge of that duty. There are about 220 separate Benches in boroughs alone that I have to fill up. There is no one to advise me or to give assistance of any sort, kind, or description. There is no Lord Lieutenant in any borough. How am I to make the choice in these 220 different boroughs? Personal knowledge I can have none, nor can any Lord Chancellor have it, and through this open gap—open because there are no resources to obtain the proper and necessary information—party claims on both sides are thrust forward, constantly with clamour and sometimes with menace, which, I need hardly tell your Lordships, is resisted with the contempt it deserves. This is on both sides of politics, and I do not think there is a pin to choose between one and the other. The consequence is that men of the highest qualities, who are not immersed in politics and whose assistance every one would desire, are liable to be overlooked—a circumstance of not small importance in this connection.

In addition to the 220 boroughs there are eighty-five counties. It would be a very great mistake to suppose that they are all, so to speak, under one blanket. The Lord Lieutenant, by custom, is associated with the Lord Chancellor in regard to each county. I have met and had interviews with a great many Lords Lieutenant; I have had correspondence with nearly all, and I have had communications with every one of them. In a few happy cases there has been nothing but formal communications; but I have had some opportunity of knowing—I do not in the least know whether what I say will be credited, but the truth is that the Lords Lieutenant, with hardly an exception, are as anxious as I am to prevent purely partisan appointments to the Bench. That is true. But they have great difficulties, although I congratulate them on the circumstance that they are on a smaller scale than mine.

When I came first into office I found that in some counties the Bench was almost entirely Conservative. I do not in the least suggest any blame to my predecessor the noble Earl who preceded me in the office. I believe that he followed the principle adopted by most Chancellors of leaving entirely in the hands of the Lord Lieutenant the appointment of Justices of the Peace in each county. That was the common practice. I do not believe that the Lords Lieutenant intended any such result; but they naturally consulted and acted upon the advice of others, and those who advised them were nearly always on one side of politics, and nearly all, socially, of one class. It was natural on the part of those who so advised the Lords Lieutenant to prefer persons of their own social rank and members of their own party holding their own opinions. They had no responsibility. The further you get away from the fountain source the less the responsibility. I do not believe for a moment that there was any design to exclude one political party. I am quite sure there was not. Many of the Lords Lieutenant discussed it with me, and I am certain that neither they nor in all cases those who advised them designed it; but while all the appointments were made in that way, from one quarter and one set of opinions, the result was what I have described. Thus in many places there arose very real grounds for dissatisfaction, together with a sense of indignity towards Liberals which no man of spirit would submit to.

Now I am glad to say that the result of my communications with the different Lords Lieutenant has been that in almost every county of England, Scotland, and Wales the Lords Lieutenant and I have agreed with regard to the appointment of all the magistrates who have been appointed. That has been done not without a good deal of labour and effort, but with a very real, genuine wish on both sides to arrive at the best result. There is hardly a county in England, Scotland, and Wales in which these magistrates have not been appointed as the result of communications and agreement between the Lords Lieutenant and myself. I have received great assistance from them, for which I desire to thank them. Our object—or, at least, I know my object—has been to redress the real causes of complaint and to discountenance the doctrine that the Bench is to be the reward of political service. The discrimination in itself was a very difficult thing. It is very difficult to select, and the volume of the work is enormous.

Appointments have been made in, I believe, every one of the 220 boroughs and eighty-five counties. Not only so, but the counties are divided into petty sessional divisions, and you have not merely to see that each county has its proper number of magistrates, but that a sufficient number are distributed all over the petty sessional divisions, which very much enlarges and increases the work. During the three years 1906–7–8, when nearly 6,000 magistrates were appointed, I reckon that about 20,000 applications were considered and refused. I try to satisfy myself in the case of each list as well as I can, but minute inquiry is impossible—from the volume of the work obviously impossible—and therefore you must work with a rough axe. It is very difficult from the very nature of the business to say that in every case the right choice has been made, and under the present system, as under the present spirit, if any wrong choice is made one is perfectly certain to hear of it from more quarters than one.

I ought to say now that, although the mass of the work is full of difficulty, the greatest embarrassment of all is this, that the work has to be carried on in an atmosphere of unceasing political jealousy not without an admixture of sectarian jealousy. The position of Justice of the Peace is an object of ambition naturally, the crown of an honourable career, but unfortunately for many years past both Parties in the State—and there is no distinction between them—have gradually come to regard the position as one which ought to be obtained by political interest and connection. This is the gravest, the most insidious, and the most widespread of the dangers which beset this subject. No one will openly avow that these appointments ought to be made in this way, or that it ought to be in the power of any one by political pressure upon Members of Parliament or upon Lords Lieutenant or upon Governments to select and enforce the choice of partisan Justices because they are party men. If that is to be done I prefer that it should be done by the open method of election, greatly as I detest the method of election for Judges of any kind, but it is better that it should be done in that way than attempted to be done by secret pressure.

The chief thing to be done, in my humble opinion, is this, to extirpate the tradition that Party interest is the avenue to this distinction. It has grown up during a considerable number of years, and what we want to do is to get rid of it. If we do not succeed, if the principle I have spoken of is allowed to prevail, it will be the same as it is in the law of commerce, under which base coin drives out the sterling, and we shall find that the Benches will necessarily and naturally be degraded. I do not know what the opinion of the House of Commons may be upon this subject, but I have seen and spoken to scoresof Members of that House, and I must say I have found them as reasonable and as alive to the danger I have mentioned as any one of your Lordships can be—I mean that I have found them so with a few exceptions, and those had better not be referred to. Nearly all of them desire to remove this whole question from the sphere of party politics. It must be—I have not long left the House of Commons myself—I should think, an unbearable nuisance to be perpetually solicited to advocate the claims of this or that gentleman. In any case, I am sure that to rescue these appointments from all elements of political interest or influence is in the public interest.

My Lords, as to the remedy, that is what I hope the Royal Commission I will inquire into. My own belief is that it would be better not to displace either the Lord Chancellor or the Lord Lieutenant, but to provide some local machinery which should assist and advise them and enable them to carry out the spirit which I think and believe both sides of the House would be disposed to agree with. I have been anxious, as far as I can, to select the best men to fill places to which I attach the utmost importance. Now that I have announced that a Royal Commission is to be appointed, I hope my noble friend Lord James of Hereford will be willing to accept that, and not press for the Select Committee.


My Lords, I have had some little experience as a borough magistrate, and I also had the honour of following Lord James of Hereford in the post of Chancellor of the Duchy of Lancaster, and I am in that respect familiar with the mode in which appointments are made both in boroughs and in counties. I agree with almost every word that has been said by the two noble and learned Lords who have spoken, but I think they have taken rather too gloomy a view of the situation.

In Wolverhampton the rule for many years has been that the city magistrates and the town council together appointed in equal numbers a committee, and that committee was in the habit—I believe it continues so to this day—of submitting the names which they thought most suitable to the Lord Lieutenant. My experience is that the Lord Lieutenant of the county—Lord Dartmouth—always carried out the recommendations put before him, and I believe that his appointments have given universal satisfaction. I do not say that system is one which could be generally established, but it has the element to which the Lord Chancellor has referred of introducing as far as possible, not election—I think elected judges would be a curse—but independent public opinion on the class of men who ought to be appointed.

In the county of Lancaster while I was Chancellor it fell to my lot to appoint 544 magistrates. The difficulty there has in the past formed the subject of Parliamentary interference and voting in the House of Commons and considerable conflict as between the Chancellor of the Duchy and the Lord Lieutenant. But Lord James, when he was Chancellor of the Duchy, passed a Minute which introduced the Chancellor and the Lord Lieutenant, so to speak, to each other on practically equal terms, and when I followed him I adopted his rule and there never has been the slightest collision between the Chancellor and the Lord Lieutenant. The rule we adopted was that the Lord Lieutenant was to nominate and that the Chancellor should appoint, but the understanding that was between myself and the late Lord Derby —and I believe it has been followed by our successors—was that we would accept mutually each other's nominations. The Lord Lieutenant would nominate the men he thought fit and suitable, and I, as Chancellor, agreed to accept those nominations. If those nominations did not include the candidates who I thought should be put on, then I would send my list to the Lord Lieutenant, and unless there was some clear ground of objection, the arrangement would be carried out. That plan worked most admirably. There never was the slightest difference of opinion, except in a few cases, between Lord Derby and myself, and in those cases the differences were not political.

I agree with Lord James that the first qualification should be character. I remember the late Lord Herschell telling me of a case in which a man was nominated with full political support behind him who had been convicted of a disgraceful offence before a Bench actually in the county from which the recommendation came. I do not wish the impression to go abroad that magistrates are unsatisfactorily appointed or are deficient. On the whole I believe magisterial duties in this country to be well discharged. The only danger is the political pressure which is brought to bear occasionally in favour of unsuitable men. It is undesirable that the Bench should have the reputation of being appointed on political grounds, sometimes in defiance of public opinion on the point. I hope the Royal Commission which the noble and learned Lord on the Woolsack has suggested will be able to find some solution of what is a grave and serious question.


My Lords, I am not certain that I have anything to add to what the noble Viscount has said. I must say I entirely sympathise with his view. I think both the noble and learned Lords who spoke before the noble Viscount a little exaggerated the difficulty of the evil. I do not think it is so great as has been suggested. I have had a good deal to do with magistrates. For thirteen years I was Chairman of Quarter Sessions and saw them in that aspect, and for seventeen years afterwards I had the duty to discharge which has been described by the Lord Chancellor of selecting Justices. I must say I have never had the smallest friction with any of the Lords Lieutenant.

The title by which the Lord Lieutenant is more familiarly known has reference to his position in regard to the military services, but the real title he holds in connection with the recommendation of persons for the position of Justices is that of custos rotulorum and senior magistrate of the county. The moment we realise what his real function is the propriety of his recommending persons for appointment is obvious. He is the senior magistrate of the county, and as such has the responsibility of recommending, and does recommend, I think, with great fairness and with an entire desire to do justice. I agree that there is some difficulty in dealing with the larger counties where you have to provide for petty sessional divisions in every part; but I have always looked to the Lord Lieutenant as being responsible for his recommendations. I was responsible for the appointment, but I had the Lord Lieutenant to look to as the proper person to make the recommendations. He was constantly associated with matters in the county, and knew both the necessities of the petty sessional divisions and the fitness of the persons whom he recommended.

With regard to the other part of the question, I have often lamented during the years that I was entrusted with the duty of selection that there was no person in the position of the Lord Lieutenant who could recommend the magistrates in the boroughs. The Mayors, by the office which they hold, would presumably be the best fitted for this purpose; but I am bound to say I did not find that I received the same amount of assistance from the Mayors as I received from the Lords Lieutenant. Rightly or wrongly, the Mayors of the boroughs were generally found to be violent political partisans, and that presented a difficulty. My action in this matter has been subject of great animadversion, I believe principally on the part of those who were on my own side of politics. The difficulty of doing the best one could was great, but in that respect I received the greatest possible assistance from the Chairmen of Quarter Sessions. They were able to give me such information as would enable the exclusion to be made of persons who ought not to be appointed.

One of the questions that was frequently pressed upon me was the appointment of working men to the Bench. I did appoint more than one working man. But, in my opinion, the real working man has no time to devote to the duties, even supposing that he were well enough educated and possessed commonsense, as a good many of them do. Certainly he is not in the position in which he can claim that his time is his own. I do not desire to enlarge more upon the subject, but my view is that, speaking generally, there has been a great deal of exaggeration in this matter. I believe that the present system has worked extremely well in the counties, and I can honestly say that I never discovered any tendency to make partisan appointments on the part of Lords Lieutenant. At the same time I would be glad to see some mode adopted by which the facts should be ascertained, and I hope that the future system, whatever it is, will be as perfect as my noble and learned friends wish it to be. On that subject however, I entertain considerable doubts owing to the difficulties which are inherent in its regulation.


My Lords, I do not know whether it would be presumptuous on my part to say a few words in this debate, but as a Lord Lieutenant to whom reference has been made I should like to express my own individual views, and to say how heartily I approve of the proposal that the whole of this question should be inquired into by a Royal Commission. No doubt the removal of the property qualification has added very greatly to the difficulties. There can be no doubt that the great majority of existing magistrates are on one side of politics—due largely, I think, to the existence in years gone by of the property qualification and the fact that men possessing the necessary experience were to be found chiefly on one side of politics. It is not an easy matter to overcome these difficulties. I have in mind a Bench in my own county, which at one period was presided over by a magistrate of strong Liberal tendencies. When the question of the political disproportion of magistrates arose acutely I naturally looked to this Bench in view of the fact that I had never made any recommendations without the approval of the Chairman of the Bench, and without asking him whether he had anyone whose name he would wish to bring before me—I naturally looked, as I say, to this Bench as one that I should be able to present to the Lord Chancellor as an ideal Bench from this point of view, but my surprise was great when I found that only one Liberal sat on that Bench. No doubt it is most important that these appointments should be removed from the area of political influence.

Lord James set out a very excellent ideal of what Justices of the Peace ought to be, and he suggested that they should be sufficient in numbers and efficient in quality. One of the great difficulties we have now is that a great many of those who are brought under our notice for recommendation are, on inquiry, discovered not to possess the necessary qualities, and when their names are not submitted it is invariably attributed to Party bias. It is highly necessary to examine recommenda- tions in order to find out who are the men best fitted to fill the appointments on the Bench. I think it would be a great advantage that the Lords Lieutenant should have the support that would be given to them by the recommendations of a Royal Commission. I can assure your Lordships that the Lords Lieutenant who have the responsibility of recommending magistrates take every possible care to see that the men who are appointed are worthy of the position. I am certain that under no system will it be possible to satisfy everybody, and I think that what we have been able to do is the next best thing to that, for we have been able to give complete satisfaction to none. I hope that the proposal submitted by the Lord Chancellor will give general satisfaction, and that the outcome will be to strengthen the hands of Lords Lieutenant.


In view of the statement of the Lord Chancellor, I ask leave to withdraw my Motion.

Motion, by leave, withdrawn.