HL Deb 16 June 1910 vol 5 cc914-7
LORD BALFOUR OF BURLEIGH

My Lords, I desire to ask the Secretary for Scotland the Question which appears in my name on the Paper—viz.: whether the legal advisers of the Crown in Scotland have expressed any opinion as to the necessity for Justices of the Peace to renew their oath of allegiance and the judicial oath on the accession of the King; and whether he is aware that a circular has been issued by a Mr. Stewart, from the County Buildings, Glasgow, saying that the Secretary for Scotland has stated he is so advised.

My interest in the matter arises in this way. A few days ago I received a courteous but a quite distinct intimation that it was necessary for me, as a Justice of the Peace for the county in which I reside, to attend on a certain day and take the oath of allegiance and the judicial oath, and this was accompanied with an intimation that this was either necessary or desirable—I am not quite certain which word was used. I happen to have held the office of Secretary for Scotland on the last occasion of the demise of the Crown, and I remember then that the matter was under discussion. It arose on the point—perhaps not an unnatural one in Scotland—whether fees were exigible for the purpose of remuneration of those who had to administer the oath, and, so far as I recollect, we were not only advised by the then Law Officers of the Crown that no fee was exigible, but that it was not necessary that a Justice of the Peace should take the oath. What I am anxious to know is, what has happened since that time which has introduced a change of view?

The only difference on the Statute Book that I know of is that in 1901 an Act was passed called the Demise of the Crown Act. It is an Act of one clause, so short that I may venture to read it— The holding of any office under the Crown, whether within or without His Majesty's Dominions, shall not be affected, nor shall any fresh appointment thereto be rendered necessary, by the demise of the Crown. It seems to me tolerably clear that that Act has nothing whatever to do with the question of the oath of allegiance or the judicial oath in the case of Justices of the Peace. Therefore I want to know if it is true that there has been a carefully considered legal opinion given to the noble Lord opposite, as Secretary for Scotland, that it is necessary that Justices should take the oath. If that has not been the case, then it is quite clear that the circular, to which I shall refer in a moment, ought not to have been issued. But if there has been a distinct decision to the effect that it is necessary, for some reason or other, for Justices to take the oath, then I venture to suggest that the Secretary for Scotland and the Scottish Office should have made the necessary intimation of the change of policy to the local clerks to the Justices of the Peace. When I protested to the clerk to the Justices for my county, I was sent a copy of a circular dated from the County Buildings, Glasgow, which ran— I beg to inform you that in connection with the accession of King George V the Secretary for Scotland, in reply to an inquiry, has stated that he is advised that those magistrates who have taken the oath of allegiance and judicial oath are required to renew their oath on the accession of a new Sovereign. However important a gentleman Mr. Stewart, of Glasgow, may be, it is not either right or reasonable that a matter of this kind should emanate from him and his county buildings. If the Justices of the Peace and their clerks are to be given information throughout the whole of Scotland, I suggest that it should come from the central authority and not from Mr. Stewart. I think it shows what is at the bottom of all this. Probably there may not be much heard about extracting fees at the present time, but the clerks to the Justices are no doubt keen to look out for their own interests, and if it can be established that it is necessary to take the oath probably the next step will be that it is equally necessary to pay a fee for the purpose; and I do not see why, by a side wind of this kind, these gentlemen should be allowed to add to their remuneration.

I may mention that in connection with recent policy the judicial benches have been largely added to. I have nothing to say against that policy. I believe it to be entirely good. Those who have been added, so far as I know, are discharging their duties to the satisfaction of those concerned; but there is no doubt whatever that we are going a little lower down in the social scale for Justices, to whom the payment of a fee of ten shillings or half-a-guinea may be a matter of greater importance that it is to gentlemen in your Lordships' position. Therefore it seems to me that this is a matter which should be watched with some jealousy. But I do press for information whether there has been a change in the opinion of the Law Officers of the Crown in the last ten years on this point, and, if that is so, why it was not intimated direct from the Scottish Office to the clerks to the Justices and not in the roundabout way indicated.

THE SECRETARY FOR SCOTLAND (LORD PENTLAND)

My Lords, I think I shall be able to satisfy the noble Lord as to how this circular was issued. The circular was issued by the gentleman named, but not with the direct authority of the Scottish Office. I believe he is the secretary of, or holds some position in relation to, an association of Clerks of the Peace in Scotland, or something of that kind. The circular was based on a reply which was sent from the Scottish Office to an inquiry to that Office on the point as to whether Justices of the Peace should or should not, on the demise of the Crown, renew their oath of allegiance and the judicial oath which they take on acceptance of office. Let me say at once, frankly, that the view of the Scottish Office was, I think, expressed rather too strongly. The word "required" is used in the circular, and it was used in one of the communications which was sent from the Scottish Office. Therefore to that extent the circular is justified in using it as the expression of opinion of the Secretary for Scotland and his advisers, and to that extent I must cry "Peccavi." That deals with the question of the issue of the circular.

The noble Lord further asks whether there has been any change of opinion on the part of the Scottish Office since the former occasion to which he alluded. As a matter of fact, on the former occasion, though so far as I am able to ascertain—I think I am stating the point correctly to your Lordships—there was no opinion expressed, it is true that Justices of the Peace were required to renew these oaths. An expression of opinion more or less definite was given by the then Law Officers to the effect that it would be well for Justices of the Peace to renew their oaths. That being the state of the case, on the recent demise of the Crown when an inquiry was addressed to the Scottish Office—I put aside the point as to the word "required" being used—the opinion of the Law Officers was given. The primâ facie opinion of the Law Officers on this point was that Justices of the Peace should renew their oaths, and in that sense a reply was sent to communications received. I may also draw the attention of the noble Lord to the fact that the Lord President of the Court of Session, on the first occasion when that Court met after the demise of the Crown, stated to his colleagues that it was the duty of himself and of them to renew their oaths, and he then proceeded to administer the oaths to himself and to his colleagues. I think that correctly represents, so far as I am aware of it, the condition of legal opinion in Scotland on this point.

I am well aware of the importance of the considerations which the noble Lord has urged in regard to the collection of fees for such purposes, and I am also aware that there is considerable doubt in the matter. The opinions, I think, on this question do not at all remove all doubt upon the question. I need not allude in detail on this occasion to opinions which have been expressed on the point in England. It is obviously for the convenience of Justices of the Peace that they should know exactly how this matter stands, and if it would meet the views of the noble Lord I should be glad to confer with the Lord Chancellor and my other colleagues on this point, and endeavour to find some method of obtaining an authoritative opinion or decision on the matter so as to allay doubt once and for all. I do not think I need add anything more. The noble Lord alluded to the Demise of the Crown Act, 1901, but, as he truly said, that Act does not alter the position with regard to the renewal of these oaths.