§ 3.47 p.m.
THE LORD CHANCELLOR (LORD GARDNER)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 1:
§ Appointment of justices, oaths of office, etc.
1.—(1) No person shall be justice of the peace for any area unless either—
(a) he is appointed by name (and not by office) to be a justice for the area by a commission of the peace for the area; or
§ VISCOUNT DILHORNE
moved, at the beginning of subsection (1), to insert, "Subject to subsection (1A) below,". The noble and learned Viscount said: This is a paving Amendment to Amendment No. 4. It had to be put down to get the drafting right, but the effect of putting it down is that it has taken precedent over Amendments Nos. 2 and 3 in the name of the noble Lord, Lord Goodman. It would probably be for the convenience of the Committee if we discussed Lord Goodman's Amendments and my Amend- 26 ment No. 4 together. But I do not want to take precedence over Lord Goodman's Amendment because of this paving Amendment, so I would formally beg to move my Amendment now and then, if he explains his Amendment, perhaps the Committee will allow me to explain the purpose of my Amendment thereafter so that all the Amendments can be considered together. I beg to move.
Page 1, line 5, at beginning insert (Subject to subsection (1A) below,").—(Viscount Dilhorne.)
THE LORD CHANCELLOR
I think that that will be a very convenient course to take. No doubt we may be advised by the noble Earl in the Chair, but there are, first of all, Amendments Nos. 1 and 4, in the name of the noble and learned Viscount, Lord Dilhorne, which obviously go together; and so do all those Amendments in the names of the noble Lords, Lord Goodman and Lord Boothby. Subject to the view of the Committee, I agree that it would probably be convenient that we should discuss them all together. That may sound a lot, but there are really three alternatives.
One is that proposed by the Bill which, in substance, is that the City aldermen, like all the other ex officio justices, should cease to be justices ex officio and that there should be an advisory committee to nominate people for appointment as justices on their merits. The second is that indicated in the Amendments standing in the names of Lord Goodman and Lord Boothby; namely, that everything should go on as it does now, so far as the City is concerned. The third alternative is a compromise, and is contained in the Amendments in the name of the noble and learned Viscount, Lord Dilhorne. If—but of course only if— Lord Goodman and Lord Boothby agree, I agree on my part, if the Committee think it right, that all these Amendments should be discussed together so that we can then choose which of the three alternatives we want. Apart from anything else, Amendment No. 4 proposes to add something at the end of line 28. The Amendment in the name of the noble Lord, Lord Goodman, also does this, and so I think there would be some difficulty in deciding on those before discussing the others.
§ LORD GOODMAN
The noble and learned Lord the Lord Chancellor has stated the position with characteristic clarity. I think that it would be best if we discussed together the Amendments in the name of my noble friend Lord Boothby and myself, and those of the noble and learned Viscount, Lord Dilhorne. All touch the same subject. If that is agreed, perhaps it will be convenient if I now make my speech.
As the noble and learned Lord has said my Amendments would achieve the result of restoring the status quo, by putting the City Court back to where it was before it was toppled off the wall by the noble and learned Lord the Lord Chancellor. I hope that we can discuss this matter on the basis that there is an agreement on all sides that there is room for two points of view on this matter. I did not detect, in the speeches on Second Reading (which I unfortunately missed, through absence abroad) much recognition on the part of the Government spokesmen of the point of view which I am seeking to adduce, but I will, with generosity, say that I certainly recognise there is room for their point of view, though I disagree with it.
I think that the arguments I shall seek to advance to the House, which have already been presented in lucid and cogent terms by distinguished lawyers, would convince reasonable people that they have an overwhelming force. The argument adduced in favour of changing the present position is the simple one of total uniformity. If we subject any human institution, particularly institutions in this country, to microscopic examination on the basis of total reason and uniformity, there are very few institutions that will not fall short of perfection on that score; but fortunately it happens to be a test that we rarely apply.
The test we apply in this country is the more valuable and valid test—whether an institution works. And by the test of whether it works, the City of London Court has an enormously strong position. No-one has argued—no-one can argue— that this has not been a most successful court. The statistics about the cases that have been before the court were given by the noble and learned Lord the Lord Chief Justice on Second Reading. 28 I will refresh your Lordships' memories and repeat these figures, for the sake of noble Lords who did not happen to be here on Second Reading, because they are so impressive.
In the last year for which records are available, 19,000 cases came before this court. Leaving aside a few cases that were referred, on case stated, to the Divisional Court or other higher Court, the cases that were heard on appeal were 20 in number, of which six were successful. So this court has a record of having tried 19,000 cases, of which the decisions in only six were reversed by an appellate tribunal. It is difficult to believe that any court anywhere in this country could achieve a better result than that. If we were to judge the matter by normal criteria we should really be down on our bended knees begging the City aldermen to continue in office. We should not be advancing highly theoretical reasons why their court should be abolished.
Two things were said in the course of the Second Reading debate on which I ought to comment. One was that the City has done a good deal of lobbying in this matter; and that was said with some sense of reproach, as if it was wrong for them to do so. I think that they would have been open to reproach if they had not done so. If the City believe so strongly as they do in the value of their court, then they are quite right to lobby and to seek every legitimate means they can to preserve an institution by which they set special value.
The second thing said, which does them much less than justice, was that the whole of this matter resolved itself into the question of whether the City aldermen are prepared to demean themselves by sitting on the bench with ordinary human beings. If I may say so, I think that is an unworthy representation of the whole position. Nobody who knows the City aldermen will believe that that is the matter which concerns them. What concerns them is that they want to preserve a traditional court as part of the whole fabric of the City by which they set great store. What we shall be doing, if we abolish this court, is to tug at one string of a whole tapestry of tradition, and if we do that we shall be impairing and endangering the whole tapestry. I 29 think that that is the real danger of the proposal.
Should we do this? Here is a court that is held in high repute by every branch of the legal profession. The Bar regard it highly. The Judiciary have already come to your Lordships' House to testify how highly they esteem this court, and no doubt they will speak again this afternoon. I think that no member of the Judiciary, except the most lofty member of it, has expressed an opinion adverse or contrary to the standing of this court. The solicitors' profession, through the Law Society, has also expressed its approval of the court. The Magistrates' Association has said that, whatever views may be held about ex officio justices of the peace generally, they do not apply to the Mayor and Aldermen of the City.
On every side where informed opinion exists there is the view that this court ought to survive. There is even implicitly and by inference, the approval of the defendants before the court. I have never seen a letter in any newspaper—nor heard of any complaint by anyone tried before this court—that he had an unfair trial because he became before one alderman and there were not three justices sitting there to try him. I cannot believe that if such a feeling had been widespread over the years it would not have been expressed by the people who have actually been tried in this court. I think that one is entitled to say, therefore, that there is total satisfaction on all sides by all concerned with the administration of justice in this court, including the accused.
On one side, we have a court that is regarded as entirely satisfactory, free from any possible complaint; and, on the other, we have the contention that it is an anomaly. And what are the reasons why it is regarded as an anomaly? I think that they are best found in some of the speeches made in another place. I do not discount those reasons or speeches, but in my view they add up to nothing like sufficient to redress the balance against the weight of overwhelming opinion in favour of the court's survival.
First, it is said that no women sit on the court. There seems to be some view that there is a woman somewhere within the aldermanic structure slowly forcing 30 her way to the top. I do not know whether the lady has arrived at this moment, or when she is likely to become an alderman. I have no wish to make the slightest use of this sort of argument. I would say squarely that there are no women. But I make the point to the noble and learned Lord the Lord Chancellor that there are many legal courts where women do not feature predominantly. He will go down in history as the first Lord Chancellor to appoint a woman as a High Court Judge. This stands to his credit; but, so far as I know, only one such woman has been appointed, and any High Court Judge who is looking for a female companionship will have to look far and wide before he encounters it in the Divorce Division.
If we look for something to reform in relation to the absence of woman, then the Chancery Division is eminently the place to look, for there we find infancy cases, wardship cases, cases where it is eminently necessary—indeed, imperative—that the opinion of women are sought. Yet they never are sought. So far is judicial opinion is concerned, there is no woman in the Chancery Court. Let us hasten to reform that and put some women in the Chancery Division before we start knocking about the Lord Mayor and aldermen of the City of London. I venture to think that this is not a very convincing argument.
The cases that do require women—cases of juvenile delinquency and matrimonial cases—are few in number, because the City is not a dormitory area. The City is a place where people conduct business, and matrimonial disputes rarely arise in the course of stockbroking activities. The City contrives not to have these matters to deal with. There is a trifling number in the course of a year and they could conveniently be passed to an adjoining court that has the requisite personnel to deal with them. The same is true of juvenile delinquency. The City does not produce an atmosphere which encourages juvenile delinquency. Juvenile delinquents go off elsewhere for their unhappy activities.
So far as the City Court is concerned, there is this to be said: that, having no women, it contrives to produce a better record of successes than the courts which have women. It may be a sad fact for 31 feminists to reflect on (I am almost terrified to say this with some of the company present here this afternoon), but it is the fact that if you look at the records of courts throughout the country where there are women on the bench, you find that they do not add up to the record that I have just given your Lordships—that is, of only six successful appeals out of 19,000 cases. Therefore we have no logical reason to suppose that if we were to change this court to have women, we should achieve any better results. The logic and statistics, indeed, establish that we should achieve even worse results.
The other argument advanced is that this court consists of a single magistrate sitting on his own; and it is said that this is a bad thing. But, of course, all the stipendiary magistrates sit on their own; they are single magistrates. Judges sit on their own. Where is this sort of argument to stop? No-one has ever suggested that a stipendiary magistrate should be reinforced by two lay justices because he is sitting by himself. We shall be told, of course, that he is a trained lawyer. I, as a lawyer, can say that I believe that lawyers are no more immune from prejudices than anyone else. I have at times encountered some who are more prone to prejudices than others. I certainly should not regard it as a valid argument that a man may sit alone because he is a lawyer. I hope we shall not hear that suggested; but if it is, I hope that it will not be accepted.
The third argument that is put forward is a startling argument—what I call the levelling argument: that there are no working-class people sitting on the City bench. I do not know what is meant by "working-class". I think it has a very elastic meaning. Do we mean a person who started in poor and humble circumstances and has remained there? Do we mean a person who started in poor and humble circumstances and improved himself, and perhaps has become an alderman of the City? If we mean the latter, there are certainly such people on the bench. If we mean the former, certainly not; and I do not know that the bench is any the worse for not having them. All I would say is that it would be a 32 startling thing to introduce these theoretical considerations in order to destroy such a validly established institution.
I think the City Court exists as an anomaly. But it is a most valuable anomaly, and it has justified its existence thousands of times over. Why do the City want to preserve it? I am not going to make a long speech, because I believe everything that has to be said on this subject has already been said, but I think it is important to say a few words on the subject of the City's tradition. At this moment, if I may say so, we should all be very concerned about the preservation of traditions. When we see the things that are happening all over the world, and indeed in some parts of this country, because of the absence of tradition; when we see the uncertainties that are introduced into the masses of young people who have no traditions to guide them, no historic principles by which they are led, I wonder whether we are so wise to demolish traditions with such carefree abandon as we are minded to do in this case.
The City is not seeking for privilege as an inherited right. The City is not saying: "We want the privilege of administering justice because we were born to it." The City is seeking for the privilege to discharge duties; it is seeking for the privilege of retaining rights to which people come over a long graduation of hard work, civil distinction and sacrifice, with an enormous amount of time and effort. I do not think this is a right of which they should be deprived. I think people should be encouraged to retain this sort of privilege. This is the best sort of privilege. It is not open to a shred of objection.
In using the word "City", we are, I think, minded to confuse the great throbbing commercial centre, where people are exchanging share prices, floating companies, selling sterling short, long or whatever they are doing with it, with a community of people in the City who are dedicated to public work—the people of whom we are talking today. The aldermen of the City are appointed by a democratic process. They are voted for by the ratepayers. Having been elected by the ratepayers, they are confirmed by their own body, which means, 33 as I think the Lord Chief Justice said, that every City magistrate is confirmed by a panel of 26 or so other magistrates. It seems to me to be an entirely democratic system of appointment. I can see that theoretical objections can be raised to it, but it has a democratic basis; it is a democratic way of appointing them.
What is the doctrinaire system for which we are to change this? If there were some splendid system that we had devised that was preferable; if we were going to knock down this court because the system to be adopted throughout the country was so excellent in itself that no-one could raise the faintest objection to it, there might be an argument even against the powerful arguments which I think we have already heard on this. But what is the system? The reason why we are told that this is an anomaly, and that democracy demands that we destroy this court, is a system whereby every magistrate is nominated by a political officer. This is the system that we are asked to adopt. It is no use concealing the fact that it is a system that has worked over the years. But the whole system of judicial patronage, the whole system of judicial appointment in this country, works because we have people of exceptional personal quality. It does not work because it is a system that is good on its own. No-one can say that it is a good system to have one man nominating everybody.
Some while back I ventured to ask the noble and learned Lord the Lord Chancellor how he came to appoint the judges—what method was employed. He, of course, nominates all the justices of the peace. With quiet modesty, if I may say so, he admitted that he also appointed all the judges, and he seemed rather puzzled that anyone should raise any suggestion that this was not the best way of doing things. But I think that we do need to look at these things very closely. We are not opposing to the system in the City a system that speaks for itself and is self-evidently to be preferred. We are opposing to it a system that has worked, over the years, simply because we have had the good fortune to have Lord Chancellors of exceptional quality, and because the whole of the Bar, as we all know, is an institution of total integrity. But it does not work because it has theoretical advantages. The anomaly, if I may say so, is the method 34 that we are adopting elsewhere, not the method that we are seeking to adopt in the City.
It is for this reason—it is not a political matter—that I venture to ask your Lordships to think very hard whether we should destroy this ancient institution; whether we should destroy the opportunity of rendering the services that the aldermen of the City and the Lord Mayor have asked for, in face of the alleged theoretical advantage which, when it is examined, is seen not to be there at all.
I think the City were entirely right to lobby as hard as they could to preserve their court. When this matter was raised in another place one Member said, I think, that having studied the City he could not discover any aldermen of Labour or Liberal persuasion. This I know to be totally wrong. There is one Member of your Lordships' House who is of Labour persuasion, and is an alderman, I do not know what are the political opinions of the present Lord Mayor, but I should have to go a long way to find a more liberally-minded man. It does not seem to me that the question is: What are the politics of the aldermen? The question is: If I were an accused person, should I be safe in their hands? And my feeling is that I should feel entirely safe in the hands of the aldermen whom I have met in the City. If justice responds to that test, then I think it is good justice; and I think that we should be treading on very dangerous ground indeed, and should be showing great temerity, if we were to destroy a great institution which achieves results of this kind simply because it is thought there are theoretical benefits to be gained on account of some theory of uniformity. I do ask your Lordships, when my Amendment comes to be moved, to support it, on the simple ground that there is here something that works well, and that the reasons advanced for destroying it are totally specious.
§ 4.10 p.m.
§ VISCOUNT DILHORNE
The noble Lord, Lord Goodman, has introduced his Amendment in a powerful and persuasive speech. He has made out the case convincingly and, I should have thought, conclusively for leaving the present position in the City of London as it is now, I agree with him. I do not 35 think that any case has been made out for any change. The case against change was also clearly and convincingly made on Second Reading. On that occasion there were notable speeches from my noble and learned friend Lord Goddard, my noble and learned friend Lord Parker of Waddington, and my noble and learned friend Lord Denning. I did not speak on that occasion because there was nothing more to be said after they had spoken. But I draw your Lordships' attention to the fact that, unlike on some recent occasions when legal opinion has been considerably divided in your Lordships' House, to some Peers' amusement and entertainment perhaps, on this occasion legal opinion was united, apart from the opinion of the Lord Chancellor, in favour of preserving the City as it now is. I do not intend to repeat any of the arguments advanced on Second Reading or by the noble Lord, Lord Goodman, in that powerful speech to which we have just listened, but I think it is right to emphasise that not a single word of criticism has been made of the way in which the Lord Mayor and aldermen administer justice in the City.
I should like to say a word or two about the arguments on the other side advanced on Second Reading by the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Leatherland. The Lord Chancellor said—and I read from column 931 of Hansard of April 29:So what are we really arguing about? The only thing we are arguing about is this: do we leave the aldermen as they are—sole, well-to-do males? Or can they not so far demean themselves as to have sitting with them two ordinary citizens? That is all it is about, though one must face the fact that one of them might be a woman.I would say, with great respect to the noble and learned Lord the Lord Chancellor, that that really is not what it is all about. The real issue is this. If the administration of justice by the Lord Mayor and aldermen cannot be criticised—and it has not been criticised—has a case been made out for any change? Has it been convincingly argued that the administration of justice will be improved by the changes proposed? That surely is the test, and no one so far has 36 had the temerity to argue that the administration of justice will in fact be improved.
The noble Lord, Lord Leatherland, thought that a court of three was better than a court of one. That, I suggest, is a very doubtful proposition. The Lord Chancellor said that two heads were beter than one. Sometimes they are, but sometimes they are not. Your Lordships will remember that from time to time pressures are exerted to enlarge the number of stipendiaries who sit alone at the expense of benches, for a considerable body of public opinion thinks that one stipendiary is better than a bench. I myself do not share that view. I think that a good bench and a good stipendiary are equally good. But if it is the real argument here that you should not have any magistrate sitting by himself, why do we not find in this Bill a provision that stipendiary magistrates must sit with lay justices? But that is not there. And what is the distinguishing factor between a stipendiary magistrate and a Lord Mayor and aldermen of the City of London? First of all, of course, the stipendiary magistrates are in receipt of a salary. Secondly, they are trained lawyers. But they have learnt to be justices from their experience sitting as magistrates, and I would say myself that the experience and capacity and capability of the Lord Mayor and aldermen who sit so long and so continuously is comparable with that of the best stipendiary.
I submit to your Lordships that there is no case for change. I shall wait to hear what the Lord Chancellor has to say. I hope very much that he has reconsidered the matter and changed his mind. He and I have known each other for many a long year, and in many circumstances we have met and in many circumstances we have fought. If I may say so, I know him to be very determined and to hold strongly to his opinion. But I also know that he is a big enough man to change his opinion and not hesitate to do so when the weight of argument is against him. So I hope to-day that the noble and learned Lord the Lord Chancellor, having reflected on all that was said on Second Reading, and having heard the powerful and persuasive speech made by Lord Goodman, will say that he thinks on 37 reflection it would be better to leave things are they are.
I hope he will say that, but if he should adhere to his opinion, then I have put down the Amendment which is in my name, Amendment No. 4, in an endeavour to secure a compromise—and the noble and learned Lord the Lord Chancellor recognised that it was a compromise solution. I should like to make it perfectly clear that I do not think it would be as good a solution as the acceptance of the Amendment of the noble Lord, Lord Goodman. I know from my experience in that office how important it is for all Lord Chancellors to have the best of relations with the City; they have to work so closely together. I think it is terribly unfortunate if there should be a row or dissension between them. It is in the hope that, even at this late hour, that can be avoided that I have put down these Amendments which are a compromise solution.
I can tell the noble and learned Lord the Lord Chancellor this. If he is prepared to accept this compromise it would also be accepted by the City. There is this compromise, and I think if it is accepted the City will have given way to a very great extent. Under this compromise they will sit with lay justices, and that would meet the main objection advanced by the Lord Chancellor. That is the objection stated at column 931. That is a tremendous concession for them to be prepared to give. If, on the other hand, the Lord Chancellor is prepared to make some concession, the first concession I ask him to make is this: that the Lord Mayor and aldermen should continue to be made justices by virtue of their ancient Charter of 1741. On Second Reading the Lord Chancellor said this:I cannot conceive of a state of affairs in which any advisory committee for the City of London would not include among its recommendations for appointment all the aldermen of the City of London. So what are we really arguing about?"—[col. 931.]The Lord Chancellor did not say, and of course he could not, that if such recommendations were made by an advisory committee he would make the aldermen justices. But I cannot myself think it likely that an advisory committee recommending aldermen would have their recommendations turned down by a Lord Chancellor, of whatever political colour he might be. Therefore, so far as that is 38 concerned, if it be—and it would seem to be from the Lord Chancellor's speech —that he recognised that all aldermen should be made justices, the only issue is whether they should be made justices by the exercise of the Lord Chancellor's patronage, or whether they should become justices by virtue of the ancient Charter of the City. Is that really worth having a row about with the City? I cannot believe it is. It is asking the Lord Chancellor to make a concession; I think it is a small one. And if at the end of the day he recognises, as I think that passage I have read shows, that the aldermen will all be justices, would it not be simpler, would it not be better, just to leave that part of the position as it is to-day?
What about the second part? Your Lordships will see that my Amendment provides:Notwithstanding anything in any enactment the Lord Mayor shall be the Chairman and the Aldermen of the City of London the Deputy Chairmen of the justices of the peace for the City of London.I should like to explain that. If the Lord Mayor of London is sitting as a justice in the City, it seems to me unsuitable that any lay magistrate should be in the chair and should preside over him. If you are going to say that the Lord Mayor shall be a justice but not provide for his taking the chair, you might just as well say that he should not be a justice at all, because in my belief it would be quite out of keeping with his position and with the traditions of the City for the Lord Mayor of London to sit in his own court under any other chairman. I hope the noble and learned Lord the Lord Chancellor will recognise that. Great tributes have been paid to the quality of the men who sit. It docs not seem to me to be asking much to have it recognised that when they sit with lay justices they should preside.
The Amendment then goes on to provide that the Aldermen should be the deputy chairmen. That would mean that when the Lord Mayor was not sitting the senior alderman who was sitting would preside. Surely that is right, having regard to the position of the City, and also to the training and experience which these aldermen have, and which they will continue to have. Of course, if this compromise is accepted it will still be the case that aldermen will 39 not sit unless they have had a proper training.
That is the compromise I am putting forward. On the one hand, the Lord Mayor and aldermen, justices by virtue of their Charter, chairmen and deputy chairmen, presiding when they sit; on the other hand, the concession from them, which I think is really a much bigger concession, that they will sit with laymen, and recognising that they are willing to sit with—if I may mention the fact—a woman, if required.
I hope we shall hear soon from the noble and learned Lord the Lord Chancellor what his views are on both these Amendments, and I stress to him that I support the views of the noble Lord, Lord Goodman. I believe it is better to leave things as they are, but if the noble and learned Lord is adamant in his refusal to accept those Amendments, I beg of him to give serious consideration to the acceptance of this compromise.
§ LORD BOOTHBY
It is unnecessary, after the powerful arguments which have been adduced by the noble Lord, Lord Goodman, and the noble and learned Viscount, Lord Dilhorne, to add more than two or three sentences. However, I should like to say this. Here is an element in our judicial system which, by common consent, has worked extremely well—some might say almost miraculously well—in the past, and continues to do so in the present, and I echo the words of the noble and learned Viscount, Lord Dilhorne, that it would be much better not to tamper with it at all.
The point I want to make to your Lordships is that we cannot ignore the weighty advice which was given by the Lord Chief Justice, the Master of the Rolls, and the ex-Lord Chief Justice, Lord Goddard. No-one who heard those speakers, as I did, could fail to be convinced. I think probably there has never been an occasion when the weight of high legal opinion has leaned so much to one side, and to be quite frank I do not think your Lordships can afford to ignore the advice that was given to you by those great experts who know what they are talking about. I am not greatly enamoured of the compromise proposal put forward by the noble and learned Viscount, Lord Dilhorne. I think the 40 best and quickest way of dealing with this is to accept the Amendment put forward by the noble Lord, Lord Goodman, and to leave things as they are.
§ 4.25 p.m.
THE LORD CHANCELLOR
If I say something now on the Government's case, it is not with a view to stopping any other member of the Committee from speaking. On the contrary, I shall very much welcome views, particularly from the many Members of your Lordships' House who are themselves justices of the peace. I observe that there are now present a great many noble Lords who were not here on the Second Reading of the Bill. Therefore, perhaps I may begin by recapitulating shortly what I then said.
This Bill is not in any way aimed at the City of London. I am a great enthusiast, and do not pretend to be otherwise, about the justices of the peace. This is an absolutely unique system. There is no other country in the world in which ordinary citizens play so large a part in the administration of justice. There are 16,500 proper justices of the peace, sitting in a thousand courts every day, all over the country, dealing with 98 per cent, of all the criminal cases in the country and seeing the rest on their way up to higher courts. They deal with a total of 1½ million cases a year and, in relation to that sort of volume, there is an absolute minimum of complaints. They are extremely conscientious, and I think we have every reason to be grateful to them—particularly, of course, the taxpayers.
Naturally, everything is capable of improvement and review, and as your Lordships know there was a review in 1911, when there was a Royal Commission, and there was another review in 1946–48, when there was a second Royal Commission. Twenty years have now gone by and it is thought that certain improvements can be made. The justices of the peace are, as your Lordships know, appointed by the Lord Chancellor on the advice of local advisory committees. I can assure the noble Lord, Lord Goodman, that it is absolutely untrue to say that they are nominated by a Political Party. I am afraid that that was the case in the past, but it is certainly not so to-day.
§ LORD GOODMAN
I never suggested that for one moment. What I said was that they were appointed by a political officer. They are apparently appointed on the recommendation of committees, which, so far as I know, sit in private. Nobody knows what the committees do or how they work. Nobody knows what they may raise against a person proposed, nor has the person any opportunity of replying to them. My point is that this cannot be the ideal method of doing it, but it may work.
THE LORD CHANCELLOR
I can assure the noble Lord, Lord Goodman, that what he has said simply is not so. It is not that the whole thing is a mystery. On the contrary, I have here, absolutely free—and I will let the noble Lord have one—a document entitled Justices of the Peace: How they are appointed; what they do. There should be no mystery about them at all. I had in my room recently the whole of the Inner London Advisory Committee, members of the Press, the B.B.C., and I.T.V., so that everybody could see who the members of the Committee were, and when we broke up I invited any member of the Press to "nobble" any member of the Advisory Committee and to ask them any question they liked about anything they do. They are not now appointed unless they under take to undergo a course of training and to sit regularly. I would add that I am extremely grateful to the members of my advisory committees, who themselves take a great deal of trouble—
§ VISCOUNT SIMONDS
I do not wish to intervene, and I am speaking from a rather ancient recollection, as the noble and learned Lord the Lord Chancellor knows, for it is now 15 years since I left that honourable office. But surely he is not right in saying that the names of the advisory committee are made public. It is an absolute secret.
THE LORD CHANCELLOR
I leave this entirely to the advisory committees. I make no rule whatever that they cannot tell everybody who they are. However, the majority of advisory committees prefer not to do so, because they say that in a small provincial town they would be lobbied to death and their friends would all feel hurt if they were not recommended, although the secretary of the advisory committee is always known. 42 In the counties he is usually the clerk of the peace and in the boroughs the clerk to the justices, and most people know that in the counties the chairman of the advisory committee is generally— although not always—the Lord Lieutenant of the County. But I make no rule about this, and when in London the thing had become somewhat Party political I appointed an entirely new Inner London Committee of ladies and gentlemen of such distinction that I do not think anybody would be likely to lobby them. The Chairman is the Master of the Rolls. They said they had no objection to their names being known, and one of the advantages of their names being known is that they could interview those recommended for the office. I make no rule. Some do and some do not. Some committees now advertise in the papers when they are going to fill vacancies so that any local organisation, any individual even, can recommend anybody they like.
This part of the Bill arises because alongside the 16,500 justices, all of whom have been appointed because an advisory committee thought and I thought that they would make good justices of the pease, there are some 2,000 ex officio justices, including some 350 Privy Counsellors, all the chairmen of county councils, all the mayors, chairmen of urban and rural district councils. High Court Judges, the Lord Chancellor, the Chairman of the Council of the Isles of Scilly, the aldermen of the City of London, the Solicitor General, the Lord Privy Seal, and a number of other people. They are ex officio because they hold some other office—a very distinguished office like that of the Chancellor of Cambridge University, or, rather unfairly the Committee may think, the Chancellor, Vice-Chancellor and Deputy Vice-Chancellor of Oxford University. It is proposed that they should no longer be ex officio justices, and, as I said on Second Reading, I do not think anybody has opposed that general principle.
But quite a number have said that although they agree with it as a general principle, they think there ought to be one exception, namely, themselves That, I suppose, is human nature. The mayors, for example, say, it is absurd to make the chairmen of small urban and rural and district councils ex officio justices, of the 43 peace, but a mayor, which is an historical office, is the number one citizen and always has been; he is the contact between the local authority and the magistrates: it is important that the mayor should remain ex officio a justice of the peace. The chairmen of the rural district councils say that of course they quite agree about the mayor; it is absurd that he is an ex officio justice because the mayor's job to-day is a whole-time job. He comes along and sits once and then he goes away, and what is the point of that? Whereas they have part-time jobs as chairmen of urban and rural district councils.
So far as the City is concerned, the first thing I would say is that I think they are to some extent in a special position. I would also say that I have had the most amicable relations with the City about this matter, and indeed during the whole of the time I have occupied this office. I am, if I may say so, a great admirer of the former Lord Mayor and a great admirer of this Lord Mayor. I have seen two deputations from them about this question, and the Prime Minister has received a deputation from them about it. It has been going on for a long time; therefore, as your Lordships will see, it has had the longest and most careful discussion and consideration. All our discussions have been on a courteous and amicable basis.
The point mainly behind the Bill in abolishing ex officio justices is that one seeks from this unique system to have men and women of different ages and different occupations who come from different walks of life, all putting their heads together. As my noble friend Lord Leatherland said, two heads are better than one, and I think that most courts find that. What is desirable is that anybody who appears before a magistrates' court should know that the probability is that there will be somebody there who is familiar with his habits of speech and thought and his economic and living conditions. This, which is the main object of the justice of the peace court, cannot obtain if justices are appointed ex officio and consist only of well-to-do males, however eminent they may be.
I should like, if I may, to get rid of one or two misconceptions. May I say how delighted I am to see the noble and learned Lord, Lord Goddard, here. 44 He reminded us on Second Reading that there had been one or two indictable cases in the City courts which had taken a long time. He said there was one in the City in 1960 which took 14 days, one in 1963 which took 26 days, one in 1964 which took 13 days and one in 1965 which took 15 days. Of course, all courts of summary jurisdiction have experience of some long indictable cases, but that matter, I suggest, has no relevance to what we are considering, for the simple reason that it was before the Criminal Justice Act. The Criminal Justice Act, as all the justices on this Committee know, revolutionised the taking of depositions. Usually now they are in writing and the old business of witness after witness going into the witness box and having everything he said written down in long-hand no longer applies. This is, in any case, one of the occasions on which a court of summary jurisdiction can be constituted by one lay justice.
Then it was suggested that the City deal with a very specialised business; that they have fraud cases and financial matters on which the knowledge and experience of aldermen of the City of London must be much greater than that of ordinary justices. May I just remove this misconception? I take what happens to be the next entry to the City of London, in the Criminal Statistics, which relates to Newport. The turnovers for 1966, if I may put it in that way, the last year for which figures are available, were these: malicious wounding, the City 30 cases, Newport 37; indecent assault on females, the City 9 cases, Newport 11; unlawful sexual intercourse with a girl aged between 13 and 16, the City 1, Newport 5; shopbreaking, the City 366, Newport 347; possession of housebreaking implements, the City 11, Newport 2; embezzlement, the City 14, Newport 15; falsifying accounts, the City 9, Newport 22; obtaining by false pretences, the City 170, Newport 72; fraud by agent, the City 8, Newport 8; larceny from shops, the City 117, Newport 264; larceny from vehicles, the City 306, Newport 345; minor larcenies, the City 832, Newport 867; larceny by servant, the City 159, Newport 72; motoring offences, the City 6,207, Newport 4,196. It is most extraordinary how these are almost exactly similar in the incidence of different types of crime in the two cases. There is 45 nothing in the contention that the City business is highly specialised.
One of the difficulties in the City—but I do not want to exaggerate this because there are not a great many cases anyhow—is that they have no woman, and all their domestic court cases and all their juvenile court cases have to be shifted off on to the County of London justices. Then, of course, the City aldermen are all members of local authorities. My noble friend, Lord Leatherland, said he did not think this was a good idea, and it is, I suppose, a matter of opinion. I do not think, and my predecessors have not thought, that it is a good idea to have too many justices who are members of the local authority. Advisory committees used to be asked to see to it that not more than one-third of the justices were members of local authorities; they are now asked to see to it that not more than one-quarter are members of local authorities. It seems odd, in a way, to have an area in which all the justices consist of the leading aldermen of the local authority.
As to the value of sitting together, all I can say is that distinguished and experienced chairmen of quarter sessions, most of whom have been, and some still are, recorders, and therefore have experience of sitting with or without justices, have not in a single instance said that they prefer to sit without justices. I remember that my noble friend Lord Leatherland said he had often arrived at one view when the bench retired and had been in the end led to an entirely different opinion because of views expressed by other people. It is the fact that it is a good thing to talk things over. You find that other justices have thought of something that you yourself have not thought of.
In relation to Lord Goodman's remarks, I should add that I made it plain on Second Reading that there is no complaint about the way in which the City aldermen do their work. Of course, whether people coming before them feel like that one does not know. One does not know how far a woman, perhaps in a case of indecent assault, or in such a case in which she is a witness, would prefer that a woman justice should be present. The noble Lord says that, after all, the aldermen are appointed by the best democratic method: that of 46 election. That is no doubt a matter of opinion. We all know that in America a number of judges are elected, not appointed. I should not have thought that that was a good basis for appointment. I have yet to meet any American judge or lawyer who likes that method. The trouble is that they cannot get rid of it because the only people who can get rid of it are the politicians, and the politicians like having this amount of patronage. It is a great difficulty in the field of American law to-day, that most people would like to get rid of their elected judges, but they cannot.
So far as election is concerned, in a sense it is a self-perpetuating body, in so far as nobody can be appointed an alderman unless the Court of Aldermen elects him. If one takes two good City men, each with just as much connection with the City as the other, one may like the life of a City Livery Company, with functions and dinners and the Common Council, and the other may not, or he may not have time to do both that and to sit as a justice. The latter cannot be made a justice under the noble Lord's proposals. He can never be a justice unless he is prepared to start off by canvassing people and standing for election to the Common Council. Then he has to be promoted from the Common Council to the bench of aldermer. I suggest that, on the face of it, that is not a sound method.
With regard to the noble and learned Viscount's suggested compromise, may I say that I have most carefully considered this. It goes a good deal of the way to meet what was my main point: that we ought to try to make up our minds what is the best system of justice for most criminal cases. While we have stipendiaries in large towns where it would not be practicable to find enough justices, if our general system of having a mixture of men and women of different experiences and occupations is right, then it is difficult, on the face of it, to justify that in one place only—it will be the only place in England, of course—we should have an entirely different system whereby one layman on his own can sit as a court of summary jurisdiction.
I have told the City that if there is an advisory committee I should naturally ask the Lord Mayor or an ex-Lord Mayor to be the chairman of that committee, 47 because he is the leading man in the City of London; and I always consult with the chairman as to who the other members should be. As I think I said on Second Reading, I should be surprised if, appointing them on their merit, among the justices in the City there would not be all the aldermen. So the Amendment of the noble and learned Viscount on its first point is quite a narrow one. It is, whether they should get there because they have been chosen by an advisory committee on their merits, or whether they should get there ex officio because they have been thought fit for some other and different office. But there is so little between these two, that if it were that alone I should be prepared to accept the Amendment. It is the second point which raises the difficulty; namely, that they should always be chairmen.
May I apologise to those members of the Committee who are justices if, finally, for just a few moments I explain to those of your Lordships who are not justices how important the work of the chairman is? Purely fortuitously, I received on Wednesday last a report of the National Advisory Council on the training of magistrates. They have prepared a training syllabus for senior magistrates and in particular those who may be likely in the near future to become chairmen. They sayThe importance of training for all justices cannot be exaggerated, but there is perhaps one aspect of this which has until now been for the most part overlooked. It has doubtless been right to concentrate first on the instruction of the new justice, but the responsibility of the justice who occupies the chair at the sitting of a magistrates court is heavy. Training in chairmanship on a methodical and organised basis has been ignored, and there is no existing text-book on the subject. This is perhaps surprising, because the chairman of a bench probably has a greater influence than any of his colleagues in formulating their decision. He also largely determines the impression made upon the defendant, the legal profession, the Press and, above all, the public, of the administration of justice at petty sessions and in the juvenile and domestic courts. The conduct of the proceedings is, to a not inconsiderable extent, in the hands of the chairman, and he should manifestly be in charge of them and obviously alert and confident. It is important, too, that he says the right things on the proper occasions and in the right way. A justice who is incompetent in the chair, especially if this is due to lack of training, can spoil the impression created by an otherwise estimable bench 48 and the lay magistracy, in the eyes of those who happen to be present in court.They propose this syllabus of training. Under Part A, penal practice, there are the usual things: fines, supervision orders, costs, compensation, damages, restitution, assessment of amount, enforcement, custodial methods, prison, borstal, detention centres, approved schools, absolute and conditional discharge, suspended sentences, and so on and so forth. Then comes criminal law. I need not trouble your Lordships with that. Then, of course, what is extremely important, comes procedure. I appeal to all those justices present: is it not the fact that when you have sat as a justice for years you think you know the whole thing absolutely inside out; but the first day that you are called upon to take the chair you find it is very much less easy that it had seemed. You discover you have got all the time to answer the questions: "What do I say now?", and, "What do I do now?". It is that, that this course is designed to cover, explaining bail, explaining to an unrepresented defendant his right to cross-examine witnesses, explaining points to be considered after conviction, explaining the effect of a conditional discharge, explaining the effect of a probation order, explaining the effect of a suspended sentence, and so on.
Of course, if there are to be other justices, as well as the City aldermen, and it takes 25 aldermen to get through the work, if there are 50 justices sitting with them in the usual three, this means that 50 other justices will have to be appointed; and it would obviously be foolish, on any view, as I am sure any advisory committee would tell me, to create 50 entirely new justices for that purpose. What one would obviously do would be to leaven any new justices with a substantial number of experienced justices who are qualified for the City and who are serving at the moment on the Inner London and Middlesex benches. Really, as a matter of sheer common sense, if you have three justices sitting in a court in the City, and one of them is a woman who has been a justice for seven years, though she has never acted as chairman, and one of them is a man who has been a justice for 15 years and is a really experienced deputy chairman, and the 49 third is an alderman of the City of London who has just been elected and whose first day it is in a magistrates' court, it really would be "barmy", would it not, to say that he ought to take the chair. It is on that ground that I cannot advise the Commitee to accept that Amendment.
So far as Lord Goodman's Amendment is concerned, as the Committee probably know an exactly similar Amendment was most carefully considered in another place. It was considered in Committee and rejected, it was raised again on Report and Third Reading, and was again rejected. And I do not feel able, I am afraid, to advise the Committee to accept it.
§ 4.53 p.m.
§ LORD PARKER OF WADDINGTON
When I was first called to the Bar I rapidly learned that one ought never to follow one's leader unless the position was so bad that it could not be made worse. To-day I treat the noble Lord, Lord Goodman, as my leader, and after his extremely powerful speech there is really nothing more to say. I should have thought the case was unarguable. Further, on the last occasion, on Second Reading, I am afraid that I wearied your Lordships by a somewhat long speech in which I sought to put forward the pros and cons in regard to this issue. I intended to say nothing on this occasion, but the noble Lord on the Woolsack has gone over, if I may say so, all the ground again—all the old arguments—and for that reason, if for no other, I feel that I ought to say a word to summarise to-day what I said on an earlier occasion.
In Charter after Charter the confidence that we now feel in the Lord Mayor and aldermen of the City has been confirmed. In Statute after Statute it has been confirmed. It was confirmed by the Royal Commission in 1948. It was confirmed by a Labour Government in 1949, in the Justices of the Peace Act of that year, which, by Section 11, specifically preserved the right of the Lord Mayor and aldermen to act as Justices. Under another Government, too, if my memory is right, by the Magistrates' Courts Act 1952, Section 121, there was specifically confirmed their right each to sit alone.
Quite rightly, the whole matter has been taken out of politics, and one asks oneself what on earth has happened since 50 1949 and 1952 to cause us to be thinking, even debating the idea, of doing away with an institution in which everybody has had such confidence. The ability and efficiency of the aldermen of the City of London is conceded both by the Lord Chancellor and in another place; and what else could possibly be the case? They devised and underwent a voluntary course of training long before any Lord Chancellor devisee any course of training for lay magistrates. They sit regularly. They sit for long periods; and, incidentally, the Court of Aldermen surely know far more about the candidate to become an alderman, about his life, his ability, in particular his ability to be a justice, than any Lord Chancellor's advisory committee. They know the individual backwards, and they choose him and they choose him only if he is fit to act as a justice of the peace.
Finally, there is the record of the City Court. The noble Lord, Lord Goodman, has given the figures for 1967. Incidentally, from 1945 to date, some 23 years, there have been, I think, only 11 appeals by way of case stated to the Divisional Court, of which only five succeeded; and in living memory there is no case that I have been able to find of any decision of the Court being quashed by an application for certiorari. That is a record which I cannot think any judge, chairman of quarter sessions, recorder, or any body of magistrates could conceivably emulate. One is tempted to say that it is almost too good to be true. But it is true.
Now, what are the arguments against the existing system? Since the debate on Second Reading the argument which has been put forward to me by a number of people is that the Court have not a woman alderman, and therefore cannot try juvenile cases or matrimonial cases. It is a point; but let us please get it into perspective. Out of 19,028 cases dealt with by the magistrates in 1967, there were 158 juvenile cases, 0.75 per cent., which had to be dealt with elsewhere; and of matrimonial cases the figures run at two to three a year. Now is this institution, this system, to be sacrificed on the altar of uniformity merely because it deprives them of dealing with 0.75 per cent, further cases which they might hear?
51 Secondly, there is the idea that an accused would feel that he was getting a fairer trial if the bench consisted of two or three justices, only one of whom, perhaps, was an alderman. As my noble friend Lord Goodman said, there is no sign that any person has suffered at the hands of the Court. Nobody who has been involved in crime of any sort before them has complained in all these years; hands of the court. Nobody who has circumstance in which it is fairer to be tried by two or three is if the one justice sitting is a person in whom no confidence is felt. If there is confidence in that one, then it is just as fair, I should have thought, putting myself in the position of an accused, to be tried by him as to be tried by three justices, only one of whom do I know anything about and have confidence in. However, I recognise that there are two views about that.
It may be that there should be no court consisting of one person, but that is not the subject matter of this Bill. This is not a Bill to decide whether stipendiaries should sit with others; whether recorders should sit with others; whether, as I think the Lord Chancellor suggested on another occasion, the time is coming when judges will sit with lay assessors, or lay judges, call them what you will. That is not the subject matter of this Bill. What we are considering here is whether, in order to improve the efficiency of the magistracy generally, there are any people sitting who ought not to sit. The answer is that, there are.
As the Lord Chancellor explained on another occasion, there are just over (I think it is) 2,000 persons who can sit by reason of their office. May I get rid of one class—Privy Counsellors. I do that for the simple reason that I do not know any Privy Counsellor who has ever sought to exercise his right. What about judges? I happened to be a justice of the peace before I ever became a judge. I cannot conceive of any judge, with the pressure of work as it is at present, coming forward and saying that he wants to sit as a justice of the peace, unless it is as a chairman or deputy chairman of a county quarter sessions. This Bill is surely aimed at the numbers of chairmen of district councils and local 52 mayors who perhaps once in their term of office, merely from the point of view of prestige and with no training or experience, choose to sit on the local bench and perhaps preside. I think that we should all welcome the exclusion of those people, because they do not add to the efficiency of the magistracy.
The noble and learned Lord the Lord Chancellor said that the Bill is not directed against the City. Of course it is not, in the sense that it is dealing with ex officio justices; but it hits the City as the one class of ex officio justices who are fully trained, fully experienced and have this magnificence record. I feel I that the case is unarguable for allowing an institution with such a record to carry on. It may be that on a later occasion we may have to discuss a Bill which provides that nobody, however qualified or skilful, shall sit alone. That is a completely different matter and is not something we are considering to-day. I earnestly hope that the Committee will support this Amendment.
§ 5.2 p.m.
§ BARONESS BIRK
I should like to speak against both Amendments. I see this matter in a wider context of both social and legal reform. I believe that it I would be a mistake to make an exception of the City of London. The noble Lord, Lord Goodman, said that he would feel quite safe in the hands of aldermen, but most defendants have not the eloquence or ability of Lord Goodman, and many judges may be quite afraid to have him in their hands. As a justice of the peace, I feel that one of the most important points to bear in mind is the difficulty involved in having an untrained magistrate sitting alone. The noble and learned Viscount, Lord Dilhorne, said that nobody had yet had the temerity to answer this argument, although I thought that my noble friend Lord I Leatherland answered it very well on Second Reading.
A point that goes even deeper than the value of two or three heads being better than one is that even judges and justices —and the aldermen sitting in the City of London—are all human beings. We all have certain biases and prejudices, and as long as we are aware of them when we sit on a bench that at least is a start. But this is all part of the human condition, and when one has more than one 53 person sitting on a bench the great value is that they are able to cancel out each other's prejudices. This not only gives the defendant a far better trial but also gives more confidence to the justices. I am sure that many of us would feel quite nervous in sitting alone and would feel a certain arrogance about judging one's fellow men, particularly when one is untrained. The trained judge or stipendiary, presumably, in his or her legal training has a certain amount of objectivity; but I was interested to hear the noble and learned Lord the Lord Chancellor say on Second Reading that he would not be at all surprisedif some of those in this Chamber live to see the day when High Court Judges sit with a couple of civilians."—[OFFICIAL REPORT, 29/4/68; col. 931.]With great respect to the noble and learned Lord, Lord Parker, I think that this is all part of the trend in social and legal reform. Those of us who sit at quarter sessions, like myself, sit with a chairman as lay justices, and we also have a jury—which is not the case in an aldermanic court. The Beeching Commission, which is now sitting, has already had from various organisations a great body of evidence in support of legally qualified chairmen sitting with lay magistrates.
On the question of the participation of women, I am all in favour of men having certain male preserves if that is what they want; but I think that these should be restricted to clubs or hefty sports. I do not think that this should extend to the administration of justice. The figures for 1966 in relation to England and Wales show that there were 5,742 women justices of the peace, but not one in the City of London. A great deal has been made of the one lady on the Common Council who may eventually emerge on to the aldermanic bench. But with great respect to her: one bird does not make a judicial summer. To concentrate on women in cases involving juveniles and domestic matters seems to me to be a wrong approach. After all, the country is populated by both men and women, and there are men and women capable of being justices. I consider that in the ordinary courts undertaking magisterial duties this work should be undertaken by men and women.
54 We have heard from the noble and learned Lord the Lord Chancellor a list of cases on which a comparison has been drawn between the City of London and Newport, and it is clear that there is not a great deal to choose in the number and variety of cases as between the two cities. As for the argument about fraud and other city matters, one could find similar arguments for the cities of Birmingham, Manchester and Liverpool, where the system which is operated in the City of London does not apply. When cases such as rape or unlawful sexual intercourse with a young; girl are heard, I know from my own experience that when I have been sitting with a lay chairman he has been very pleased when I have suggested that it would be a good idea if I questioned the defendant or a witness, because it is far less embarrassing than to have one man alone asking questions on these matters.
There is great importance in establishing a link in many courts with regard to family matters. I refer to matters arising between husband and wife which come up in the ordinary courts, perhaps in a case of common assault or a case involving arrears of maintenance for children who are in an institution; lack of school attendance, and so on. Very often these matters are connected with what has been going on in the juvenile courts and matrimonial courts. In my own court not very long ago we had a case involving common assault where a couple appeared in the ordinary magistrates' court, also the matrimonial court, and the children of the family were before the juvenile court.
In these days, when so much of our work is concerned with welfare is well as interpretation of the law—in other words, when we are trying to deal with the human condition—I feel that we should not isolate these matters as they are now being isolated in the City of London. We do not know whit will happen when the large population moves into the Barbican, but even if there were no need for separate courts the fact that women could sit in the City of London would mean that they would also be available to be appointed to both juvenile and domestic courts in the Inner London area. Another point which bears examination is that while the average age of magistrates and aldermen 55 is around 50, nevertheless the youngest aldermen are, I believe, appointed at around 35, whereas magistrates to-day are now being appointed in their late twenties and early thirties.
I also feel that the argument that aldermen have to come from the Common Council (although I believe there are a few who are appointed direct) is a very important one against continuing the present system, because again, having been a member of a local authority, I am quite aware—as I am sure many noble Lords are aware—that someone who makes an exceptionally good local authority councillor is not necessarily the right person to be on the bench and to administer justice.
On the Second Reading, the noble and learned Lord, Lord Goddard, said that the power not to appoint an alderman had been invoked once. He gave us only one example, and that was of someone who had a close connection with the licensed trade. If an alderman was considered extremely good in his work in every other way, but was not considered suitable for the bench, it seems to me that the position would be very difficult; because, after all, if we are honest about it seniority plays a considerable part in this and I think it would be very hard to refuse his nomination.
In this imperfect world we may not be able to get equality of justice, but it seems to me that there should be equality of opportunity. This means that in all the magistrates' courts of the country, apart from the stipendiary courts, there should be more than one magistrate sitting; that there should be men and women; and that there should be men and women with a wide range of antecedents and occupations. It has been mentioned that many aldermen now sitting came from humble beginnings. I think that when people get to that situation they can look back with nostalgia to their humble beginnings, because they have moved into another area of life. I believe it is a good thing that there should be on the benches a certain number of people who are still in the midst of their humble beginnings. With the influx of population which is coming into the City of London, not only as residents but as workers— and, after all, people are brought to the court in the area where the offence was 56 committed, not where they live—it is even more important that we should have the same consistent system as we have in the rest of the country. The fact that it has worked very well in the City of London seems to me an argument for congratulating the City, but it does not seem to be an argument for saying that something else will not work better in the future if we are prepared to try it.
I do not feel that the Amendment of the noble and learned Viscount, Lord Dilhorne, which is a compromise, meets the case either, because it retains the principle of ex officios but dilutes it with appointed justices. So there again, as the noble and learned Lord the Lord Chancellor pointed out, we should still be left with a chairman and deputy chairman who, although they may have taken a course, are still untrained but have a life interest in the offices of chairman and deputy chairmen. It is with no reflection on the riches of the City that I say that this solution seems to me to be rather a poor man's quarter sessions, with all untrained people sitting and with no jury. I appreciate how strongly the people connected with the City feel about giving up some of its preserves. But I think there are other traditions in the City which are more worthy to hold on to, and that this one should be given up. I do not believe that to retain it fits into what we shall be looking for in a modern structure of our social and legal system.
§ 5.15 p.m.
§ LORD CHORLEY
The noble and learned Lord the Lord Chancellor has asked for the views of active magistrates, and he seems to be getting them. I should like to start by saying that while I agree with a very great deal of what the noble Lord, Lord Goodman, said in his admirable speech, he is completely wrong about the selection of magistrates. I was a member of an advisory committee for 25 years, which is a pretty long time, and in all my experience we have never put up to the Lord Chancellor nominations from political Parties. No doubt it may occur here and there in some parts of the country, but it is far from being anything like—
§ LORD GOODMAN
I hesitate to interrupt the noble Lord, but I should like to make it clear—because I should be loth for it to be on the record that I 57 said any such thing—that I never said that any selection committee put up political nominations. I have never said it, I have never suggested it and I do not believe it. I do not know how selection committees work, because their proceedings are in secret.
§ LORD CHORLEY
Your Lordships heard what the noble Lord said, and I think it was implicit in his remarks. He also said that these committees meet privately. Of course they do. How can you possibly canvass in public the qualifications of people to be magistrates? The noble Lord is a sufficiently practical man to know that that would be quite absurd. Of course they meet in private. They attempt to get the best possible bench and, so far as my experience goes, I believe that to a very large extent they succeed.
I approach this problem without any sort of bias in favour of the City of London, but I approach it with very considerable bias against the present system of a large number of ex officio magistrates. With the sort of experience which I have already mentioned, I am quite satisfied that it does not make for the best administration of justice; and, surely, the best administration of justice is what we in Parliament are concerned to get. That is our job. Everybody who has spoken with knowledge of the administration of justice in the City of London says that they get very good justice indeed in those courts. I am very much impressed with that, and any bias that I had against the system is really negatived, because I am a practical man and I am much more concerned to get really good justice than to carry out some doctrinaire policy. Surely, that is what one wants every time.
I have heard no arguments, except one, against the system in the City. It has been suggested that courts are impeccable in the City, but barrister friends who practice in those courts have told me that in their view the weakness of the court is in its sentencing. I do not know from my own knowledge, but members of the Bar of some standing who practice in that court tell me not that their sentencing is too severe, but that it is a little out of line with that of other magistrates' courts. I can quite see how it could be, because it is at the point of sentencing, in particular, that two or three 58 heads are so extraordinarily valuable. I should not like to be a High Court Judge on assizes, having to decide all by myself on the sentence in a very difficult case. It must be a gruelling business. As a chairman of quarter sessions one threshes it out with one's fellow magistrates. So far as my experience of the magistracy goes, I think that the City court would be much stronger if it were reinforced, so that, at any rate when it comes to the sentencing, it is not done just by one alderman but he his colleagues with whom to argue, in order to come to what in all the circumstances is the best decision. That is why I like the compromise proposal of the noble and learned Viscount.
I was impressed by the fact that the noble and learned Lord on the Woolsack said that he would have accepted it had it not been for the question of the chairmanship. Surely that can be overcome. Can they not be left to choose their own chairman—which is what, in effect, happens in other courts? I should have thought the noble and learned Viscount would think that a reasonable way out of this difficulty and it would, to a large extent, preserve this system. The arguments of the noble and learned Lord on the Woolsack and of the noble Baroness seemed to be directed to trying to persuade your Lordships that this system just could not work, for many reasons. The fact of the matter is that it does work and it works very well, and that seems to be the acid test. If it really works we certainly ought not to destroy it. If we can improve it by strengthening it in the way the compromise solution proposes, then I suggest to your Lordships that you should accept that solution.
§ 5.20 p.m.
§ LORD CARRINGTON
I wonder whether I might say just one word. I must first disclaim any City connection, other than that I work there from time to time; and I am afraid that I am only a rather inactive magistrate. But I think it would be misunderstood if nobody said anything from these Benches. I have listened with great care to the arguments this afternoon (I was not here on the Second Reading), and two things have struck me very much. Not one single noble Lord has said that the present arrangement works badly. It so happens that I was lunching with a man to-day 59 and we were talking about this Bill. He complained bitterly about the administration of justice in the City, and said that he had been fined for leaving his car without lights on in 1936, and that he thought this was unjust. But, even so, he did not seem to think it was a very serious matter. But none of your Lordships—and nobody outside that I have ever heard—has said that the present arrangement works badly. Justice seems to be done, and people seem to be satisfied; and, as the noble Lord, Lord Goodman, said, not even those who have been on the other end have complained about the present system. That is the first point I would make.
The second thing which has struck me is that the arguments from those of your Lordships who have supported the Government, and the Lord Chancellor in particular, seem to me to boil down to the argument of uniformity; that there should be uniformity throughout the country. The noble Baroness shakes her head, but I do not think it amounted to anything else than that. It seemed to me that they were saying that because the position which obtained everywhere else was satisfactory there, it should be made so in the City. I am afraid that I cannot agree with that. After all, this is being done in the teeth of a recommendation of a Royal Commission, which only in 1948 said precisely the opposite. Noble Lords have quoted the passage:The traditions and practice of the City have resulted in a high standard of administration of criminal jurisdiction, and we do not recommend any change for the adult Court.I mean this in no offensive way, but it seemed to me that in this matter perhaps noble Lords opposite were more concerned with uniformity than with justice. It is not that they are not concerned with justice, because of course they would not seek to bring about a state of affairs in which there was less justice. But when we are all agreed that justice is done in these courts it does not seem to me that the change is wanted for any other reason than uniformity.
My noble and learned friend Lord Dilhorne has suggested what is almost a compromise in this problem. I, for one, should be very happy to follow the noble Lord, Lord Goodman, into the Lobby— and. indeed, in certain circumstances I 60 might even do so—except for the fact that that particular Amendment has been twice rejected by another place. So I do not think there is any great likelihood of its being successful a third time. But, as I say, my noble friend Lord Dilhorne has suggested a compromise, and I very much hope that the noble and learned Lord the Lord Chancellor will look at the point again. He has accepted most of it. The only thing that he finds difficult to swallow is the question of the chairmanship; and he made out a very interesting case. I must honestly say that in my own experience I have suddenly been called upon to be chairman of quite important bodies. One, for example, was the Board of Admiralty, when everybody else had been there for three years and I did not know anything about it. But I was still required to take the chair; and I do not think that I did unduly badly. I think it would have been very odd if the First Lord of the Admiralty had not taken the chair; and I suspect that it would look just as curious if the Lord Mayor of London did not take the chair in the magistrates' court.
I hope that perhaps the noble and learned Lord the Lord Chancellor, who is very reasonable in these matters, will look at this again, because it seems a compromise which would satisfy those in the City, who feel very strongly about these things. I agree very much with what the noble Lord, Lord Goodman, said about tradition. I do not think we should throw all these things away just for the sake of uniformity; and I do not think the noble and learned Lord would be giving up very much.
§ BARONESS WOOTTON OF ABINGER
I was very much surprised to hear the noble and learned Lord the Lord Chief Justice say that he did not think this case could be argued. He had the opportunity, as the rest of us had, of listening to the noble and learned Lord the Lord Chancellor, who I thought argued this case with exceptionally convincing logic. The noble Lord, Lord Goodman, made his case mainly by pointing out certain peculiarities of the City justices, the City courts, which they share with some other parts of our justicial system—for instance, that they have a comparatively small feminine representation. In fact, they have none. But he pointed out that 61 there were many other spheres of importance in which women play only a small part.
He instanced also the fact that there were objections raised that the aldermen sit alone, and do not have magisterial colleagues. This, of course, is also true of stipendiary magistrates; and it is true of High Court Judges. What the noble Lord, Lord Goodman, did not do was to mention the one peculiarity of the City justices which they do not share with any other part of the judicial system; namely, that they are elected persons—or, at least, they will not share this provided that the other ex officio magistrates, such as the mayors, are abolished. They are elected persons; and, what is more, they are elected by a rather small and certainly unrepresentative electorate. I think that most of us have taken the view that election is not the most suitable way of choosing our justices, and we in illustration of that frequently hear examples brought from the United States—although I do not suggest that this particular form of election is governed by quite the same influences as the election of some American judges.
The noble Lord, Lord Carrington, said that nobody had argued that this institution works badly, that we are all satisfied that it gives justice and that those who have appeared before it have not complained. I do not know what steps he has taken to ascertain whether these complaints are heard. I think it would be very surprising if those who appeared before any court failed to complain. Certainly it has not been my experience. Really, we are in no position to say whether this particular institution works well or badly; and we are not in a much better position to say whether other parts of our judicial system work well or badly, unless we make a very much more exhaustive and concrete inquiry into it.
The plain truth of this matter is that the present Court is an historical privilege, and in the contemporary climate— and, indeed, for a considerable while past —the usual practice in this country in relation to historical privilege is to keep it as ornamental and to preserve historical tradition in that way, and gradually to shear away from it inappropriate powers. That has happened to the Monarchy. If certain rumours are to be 62 believed, that is quite likely to happen to your Lordships' House before any of us is very much older—but that is not because it has been argued that your Lordships' House works badly. It is rather given to self-praise, as indeed I am sure are the justices in the City courts. The change is proposed because, admirable though hereditary Peers may be, many of them, in this day and age it is not thought fitting that persons should exercise political and legislative power merely because they are the sons of their fathers. Exactly by the same parallel, it is not fitting that persons should exercise judicial functions merely because they have been elected to this very unusual and esoteric body, the Mayor and Aldermen of the City of London.
§ 5.28 p.m.
§ VISCOUNT DILHORNE
Perhaps I may just say a word in answer to the noble and learned Lord the Lord Chancellor, because we have got very close, as the noble Lord, Lord Chorley, has said, to reaching a compromise. Under that compromise, the City gave way a great deal from the position they have adopted heretofore, and the position under Lord Goodman's Amendment. I am sure the noble and learned Lord the Lord Chancellor realises that. The second question on which he is prepared to give way is a minor one, I agree, but it is not unimportant in relation to the traditions of the City. So what remains? There is only the question whether the Lord Mayor and aldermen shall preside when they sit—that is all.
The Lord Chancellor, with great respect to him, answered that, I thought, rather cursorily, by saying, "What about the position of a newly appointed alderman and a magistrate who has sat for fifteen years and another one who has sat for seven years?" It is not, of course, necessarily the fact that the best chairman (who must have high qualities, as I recognise, and as the Report which the Lord Chancellor read out also recognises) is the longest-serving magistrate. I ask the noble and learned Lord to recognise this: that unless the Lord Mayor is going to preside over such a bench, it really is impossible for him, I think, to sit with the dignity that he holds. And the same applies to the aldermen.
63 If that provision is not in the Bill, it is perfectly true, as the noble Lord, Lord Chorley, has said, that the magistrates can elect their own chairman. I would suspect that, without any of the reluctance that the noble and learned Lord the Lord Chancellor shows, they would in fact elect the Lord Mayor as chairman and the aldermen as deputy chairmen. But, however that may be, that is the limit of the concession the noble and learned Lord the Lord Chancellor has been asked to make: that instead of leaving it to the election, it should be declared in this Bill that they would hold those positions. Your Lordships must weigh that concession and the concession about the appointment by Charter against the concession on the other side by the City, of abandoning the aldermen's long-established right to sit alone. I do not think it is asking the noble and learned Lord very much to agree to make that concession.
I do not know what the noble Lord, Lord Goodman, proposes to do about his Amendment. As has been said by my noble friend Lord Carrington, it has been before the other place, considered by them and twice rejected. I was hoping, when I tabled these Amendments, that I should be able to persuade the Lord Chancellor to accept a compromise. I feel that it would have been much the happiest solution of a difficult situation. If he cannot do that—and I emphasise that the City has come a long way, and I hope it will go a little further —then if the noble Lord, Lord Goodman, withdraws his Amendment I shall ask the Committee to seek to carry the Amendments that I have tabled. That will give the noble and learned Lord the Lord Chancellor a further opportunity of reflection, and give the other place a chance to consider whether or not it is really necessary to contest the question of whether the Lord Mayor should be chairman and the aldermen deputy chairmen of the magistrates.
I have intervened at this stage because I did not speak on Second Reading, and I cannot be accused on this occasion of having spoken for four and a half hours, or something like it. We have perhaps covered most of the ground and the feeling I have is that a great many of your 64 Lordships would rather like to proceed to a conclusion on this matter.
§ LORD GOODMAN
I do not know if it would be helpful to the noble and learned Lord the Lord Chancellor for me to say that I speak only to preserve something that the City wants. If it is the City's wish that they should not incur the risk, if I may so put it, that if my Amendment were carried here it would be rejected elsewhere, it seems to me, as a realist, that I should prefer a bird in hand to anything else in another place. Perhaps I might add one word in urging the noble and learned Lord the Lord Chancellor to accept the Amendment. The noble and learned Viscount, Lord Dilhorne, said that it is a small Amendment to accept. I wonder if the Lord Chancellor would take into consideration the fact that the City is composed of very fair-minded men; and if, by Statute, they are enabled to preserve something of their privilege, a traditional right, that will compensate them for what they are losing and give them something to work for.
The work of the City has enormous value outside the question of what we are discussing today. The charity work of the City Companies, their work for schools, deserves a small reward. And he might take into consideration the extreme likelihood that, if some member of the bench who was not an alderman showed some aptitude for the job that made him eligible as chairman, the City would show the magnanimity of inviting him, when the occasion arose, to be the chairman. It would be unlikely that a man with real aptitude would be excluded by the City simply because they had the statutory right to the posts of chairman and deputy chairmen. It would be a nice gesture if the noble and learned Lord the Lord Chancellor would recognise this fact. If he is able to accept the Amendment proposed by the noble and learned Viscount, Lord Dilhorne, then I shall have the pleasure of withdrawing mine.
THE LORD CHANCELLOR
I am afraid that, with the best will in the world, I cannot do that. Accepting this Amendment would do two things. I am not concerned with the merits or demerits of the City of London where I have many friends: I am concerned with the new administration of justice. I still 65 think it cannot be right that anybody should be appointed to an important judicial office, not because he had been chosen for that office but because somebody has chosen him for some different office.
I invited the House, or anyone, to tell me what was the answer to the evidence given by the County Councils Association to the Royal Commission when they said this:The qualities which enable a chairman of a local authority to perform his duties with success are not of necessity those requisite for the office of Justice of the Peace, added to which there is the point that in many areas the office of Chairman is a matter of rotation rather than distinctive merit. In any event if the Chairman of the local authority is suitable for appointment as a Justice of the Peace, the ordinary procedure should suffice to ensure his consideration for that office.All the ex officio justices can of course be appointed on their merits.
I have gone out of my way to guarantee in advance, that I will ask the Lord Mayor or ex-Lord Mayor to be chairman of the City of London Advisory Committee. I always consult the Chairman as to whom the other members should be. And I said on Second Reading that it
§ would be unrealistic to suppose that the proper way of doing things will not result in aldermen being, in fact, justices of the peace. So long as they are ex officio you get into the state of mind displayed by the noble Lord, Lord Goodman, who said, "If the City think that somebody should be the chairman"—not "if the justices"; not anybody to do with the administration of justice; but "if the local authorities" are kind enough to say that somebody else may be chairman who is not a member of a local authority. This is not, I think, the right principle to employ when dealing with the administration of justice. It cannot be right, if there are three justices, one of whom is of some service and a second of whom is an experienced chairman or deputy chairman, that the most newly appointed City alderman is to take the chair because he is the local authority man. I am afraid that I cannot think that that would be right or that it can be what the administration of justice requires.
§ 5.38 p.m.
§ On Question, Whether the said Amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 138; Not-Contents, 51.67
|Aberdare, L.||Coleraine, L.||Hawke, L.|
|Aberdeen and Temair, M.||Colville of Culross, V.||Henley, L.|
|Ailwyn, L.||Conesford, L.||Hodson, L.|
|Airedale, L.||Cooper of Stockton Heath, L.||Horsbrugh, Bs.|
|Albemarle, E.||Cottesloe, L.||Howard of Glossop, L.|
|Alport, L.||Craigavon, V.||Howe, E.|
|Amherst, E.||Cranbrook, E.||Hurcomb, L.|
|Ampthill, L.||Cullen of Ashbourne, L.||Iddesleigh, E.|
|Amulree, L.||Daventry, V.||Ilford, L.|
|Ashbourne, L.||Denham, L.||Jessel, L.|
|Ashton of Hyde, L.||Denning, L.||Kilmany, L.|
|Asquith of Yarnbury, Bs.||Derwent, L.||Kilmarnock, L.|
|Auckland, L.||Dilhorne, V. [Teller.]||Kinnoull, E.|
|Audley, Bs.||Drumalbyn, L.||Latymer, L.|
|Balfour of Inchrye, L.||Ebbisham, L.||Lincoln, L. Bp.|
|Barnby, L.||Eccles, V.||London, L. Bp.|
|Beaumont of Whitley, L.||Emmet of Amberley, Bs.||MacAndrew, L.|
|Bessborough, E.||Erroll of Hale, L.||Macpherson of Drumochter, L.|
|Bledisloe, V.||Exeter, L. Bp.||Mais, L.|
|Boothby, L.||Falkland, V.||Malmesbury, E.|
|Boyd of Merton, V.||Falmouth, V.||Mancroft, L.|
|Brabazon of Tara, L.||Fleck, L.||Margadale, L.|
|Bridgeman, V.||Fortescue, E.||Massereene and Ferrard, V.|
|Brock, L.||Fraser of Lonsdale, L.||Merrivale, L.|
|Brooke of Cumnor, L.||Gladwyn, L.||Mills, V.|
|Brooke of Ystradfellte, Bs.||Glasgow, E.||Milne, L.|
|Burden, L.||Goodman, L. [Teller.]||Milverton, L.|
|Byers, L.||Goschen, V.||Molson, L.|
|Caccia, L.||Greenway, L.||Monckton of Brenchley, V.|
|Carrington, L.||Grenfell, L.||Morris of Borth-y-Gest, L.|
|Chandos, V.||Grimston of Westbury, L.||Mowbray and Stourton, L.|
|Chorley, L.||Guest, L.||Newton, L.|
|Cohen, L.||Hacking, L.||Nugent of Guildford, L|
|Nunburnholme, L.||Robertson of Oakridge, L.||Strathcarron, L.|
|Oakshott, L.||Ruthven of Freeland, Ly.||Swaythling, L.|
|Ogmore, L.||Sackville, L.||Teviot, L.|
|Parker of Waddington, L.||St. Albans, L. Bp.||Teynham, L.|
|Pearce, L.||St. Aldwyn, E.||Thorneycroft, L.|
|Pearson, L.||St. Helens, L.||Thurlow, L.|
|Perth, E.||Sandford, L.||Trefgarne, L.|
|Poltimore, L.||Sempill, Ly.||Tweedsmuir, L.|
|Rankeillour, L.||Shannon, E.||Upjohn, L.|
|Rathcavan, L.||Sherfield, L.||Vivian, L.|
|Reading, M.||Simon, V.||Waldegrave, E.|
|Redmayne, L.||Simonds, V.||Wilberforce, L.|
|Ritchie of Dundee, L.||Stamp, L.||Wolverton, L.|
|Addison, V.||Granville of Eye, L.||Phillips, Bs. [Teller.]|
|Beswick, L.||Granville-West, L.||Popplewell, L.|
|Birk, Bs.||Henderson, L.||Raglan, L.|
|Blyton, L.||Heycock, L.||Rhodes, L.|
|Bowles, L.||Hill of Wivenhoe, L.||Ritchie-Calder, L.|
|Brockway, L.||Hilton of Upton, L.||Rowley, L.|
|Buckinghamshire, E.||Kennet, L.||Royle, L.|
|Burton of Coventry, Bs.||Latham, L.||St. Davids, V.|
|Champion, L.||Leatherland, L.||Serota, Bs. [Teller.]|
|Collison, L.||Lindgren, L.||Shackleton, L.|
|Delacourt-Smith, L.||Listowel, E.||Shepherd, L.|
|Donaldson of Kingsbridge, L.||Llewelyn-Davies of Hastoe, Bs.||Sorensen, L.|
|Douglass of Cleveland, L.||Lucas of Chilworth, L.||Strabolgi, L.|
|Fiske, L.||McLeavy, L.||Summerskill, Bs.|
|Gaitskell, Bs.||Maelor, L.||Taylor of Mansfield, L.|
|Gardiner, L. (L. Chancellor.)||Mitchison, L.||Wells-Pestell, L.|
|Garnsworthy, L.||Moyle, L.||Wootton of Abinger, Bs.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ Amendment moved—
Page 1, line 18, at end insert—
("(1A) (a) The Lord Mayor and Aldermen of the City of London shall by virtue of the Charter granted by His late Majesty King George II dated the 25th August 1741 continue to be justices of the peace for the City of London.
(b) Notwithstanding anything in any enactment the Lord Mayor shall be the Chairman and the Aldermen of the City of London the Deputy Chairmen of the justices of the peace for the City of London.").—(Viscount Dil-horne.)
§ Clause 1, as amended, agreed to.
§ 5.50 p.m.
§ LORD ROYLE moved, after Clause 1, to insert the following new clause:
§ Advisory Committees
§ ".—(1) There shall be in each county and in each borough having a separate Commission of the Peace an advisory committee for the purpose of advising the Lord Chancellor upon the appointment of Justices of such county or borough.68
§ (2) The Chairman of the advisory committee for a county shall be the custos rotuiorum of the county and the clerk thereof shall be the clerk of the peace of the county.
§ (3) The Chairman of advisory committee of a borough having a separate commission of the peace shall be such person as the Lord Chancellor may appoint and the clerk thereof shall be the clerk of the Justices of the borough.
§ (4) An advisory committee shall be elected by the Justices of the county or borough, having a separate Commission of the Peace, in Annual meeting assembled.
§ (5) The Lord Chancellor may, by rules, made by him give general directions as to the manner in which advisory committees shall carry out their duties."
§ The noble Lord said: I beg to move Amendment No. 7, to insert the new clause on the Marshalled List. This Amendment has a relation to what we have been discussing so far this afternoon but covers a much wider field, because it deals with magistrates throughout the country rather than in one small part of the country. As briefly as I can put it in one sentence, the aim of the Amendment is to make advisory committees statutory bodies. I believe that it is a grave omission in the Bill that this has not been done. I cannot find any Act of Parliament that makes reference to advisory committees, though everybody knows they exist. In 1949, when 69 we were discussing the Justices of the Peace Bill in another place, I had the temerity to move an Amendment which, roughly speaking, was the same as this Amendment, and it was rejected by the then Home Secretary, Mr. Chuter Ede, and the then Attorney General, now the noble Lord, Lord Shawcross.
§ In the 19 years which have intervened I believe that more consideration might have been given to this question of advisory committees, and I regard this as a new opportunity for stating a case for some change. Any noble Lord who is a justice of the peace or holds any other magisterial position is regularly asked how magistrates are appointed, and he usually answers by saying that they are appointed by the Lord Chancellor. How does the Lord Chancellor know everybody he is appointing? The answer is that he does not; he is advised by advisory committees in every county and county borough as to who are suitable people to become magistrates.
§ Then comes the question: who appoints the advisory committees? Again, the answer is: the Lord Chancellor. From that again comes the question: who advises the Lord Chancellor about appointments to the advisory committees? And the answer is: the advisory committees. I regard this as a completely undemocratic procedure. Nobody knows what goes on in the advisory committees. Perhaps that is right. But as I see it, members appointed by the Lord Chancellor to serve for five years can be recommended, when their period on the committee expires, to serve a further term. They are recommended by the advisory committee—by their own colleagues. I know that this is subject to the Lord Chancellor overriding any decision of the advisory committees, but except for that overriding they become in fact self-appointing and self-perpetuating. I do not believe that in the second half of the twentieth century this practice is in accord with our democratic thinking.
§ I know, and noble Lords will know, that there is a widespread sense of suspicion in the public mind—I put it as high as that—that there is a certain amount of hole and corner activity going on. They believe that there is a secrecy about the appointment of people to responsible office that almost amounts 70 to a Star Chamber. I know that in these matters my noble and learned friend the Lord Chancellor acts as dominus and that if he were not to have any advice and make all decisions himself, he would be deus.
§ I would never recommend that the alternative method of appointing magistrates was by some sort of public election. Magistrates are in a different category altogether from members of local councils and even from Members of Parliament. It is quite impossible to have a public election. But the public is worried about these advisory committees who, subject to my noble and learned friend, are the people who select magistrates. The public is concerned in making these committees statutory. I feel sure that if this were done it would remove a great deal of the concern which exists in the public mind.
So far as the subsections of my Amendment are concerned, I think they are perfectly clear, but I should like to make one comment on subsection (4) which says:
An advisory committee shall be elected by the Justices of the county or borough, having a separate Commission of the Place, in Annual meeting assembled.
It might be suggested that this is a form of election. But it is not the election of the magistrates; it is the election of the committee which will advise the Lord Chancellor. At every annual meeting of magistrates in every part of the country certain committees are elected. The magistrates' court committee is elected by the magistrates themselves; the licensing committee, the compensation committee, the probation committee and so on are all appointed by the justices themselves. I cannot for the life of me see why the justices, in their wisdom, should not choose their colleagues who would be the committee of selection, the advisory committee to the Lord Chancellor.
§ VISCOUNT BRIDGEMAN
Before the noble Lord leaves subsection (4), could he clarify one small point? Does he intend that the candidates for the election referred to in subsection (4) should be confined to magistrates, or that people who are not magistrates should be eligible?
§ LORD ROYLE
My view would be that the advisory committee should consist purely and simply of magistrates. I 71 believe that they are the people who know best the suitability of candidates in the light of their own experience of what is needed of a magistrate.
I do not think it is necessary to go through any of the other parts of my Amendment, but I wanted to make clear that I feel strongly on subsection (4) and regard it as an alternative way in which we can bring about a feeling in the minds of the general public that there is nothing hole and corner about the question. It would be made much more straightforward. Obviously, I am not well up in these matters, but I wonder in how many cases the names of those on public advisory committees are not available for scrutiny of one kind or another. At the moment, I cannot think of any. I think of the Board of Trade, for example, and those names are available if people want them. So far as I can see, this is the only case where an advisory committee in public life is in no shape or form open to public scrutiny.
I do not want to speak for a long time—we have had a long debate on the other subject—but I believe that what I am suggesting is a democratic move forward to abolish some of the suspicion which exists in the minds of the public, and I beg your Lordships to see to it that for the first time advisory committees are made statutory. I beg to move.
After Clause 1, insert the said new clause.— (Lord Royle.)
§ 6.4 p.m.
THE LORD CHANCELLOR
This question was given a good deal of consideration by both of the Royal Commissions. The Royal Commission of 1911 recommended:The Lord Lieutenant of the County should retain the practice of recommending to the Lord Chancellor for his approval persons to be appointed justices of the peace subject to the following conditions: (1) that the Lord Chancellor should nominate within each county one or more small representative committees to inform and advise the Lord Chancellor and the Lord Lieutenant; (2) the persons to be selected as members of the committees, the practice and procedure of the committees, should be left to the discretion of the Lord Chancellor,and in boroughs the Lord Chancellor should have power to appoint similar committees.
72 The Second Royal Commission, 1946–48, considered it all over again. They said in paragraph 43 of their Report:The Lord Chancellor as head of the Judiciary, and at the same time as a Minister of the Crown, is eminently qualified to be entitled to power of appointment of justices. It is essential that the Lord Chancellor should have local advice, and there has been unanimity among the witnesses that a local committee is preferable to any other method. We agree with this view. We have however heard criticism of the existing system of advisory committees. It has been suggested in evidence that the Committee should be constituted of persons nominated by local bodies.That is what my noble friend suggests.This would make the committee a publicly known body; and a no less serious objection is that the committee would then cease to be the Lord Chancellor's committee. Further, it might in many cases be selected by a vote on Party lines. In approving the appointment of justices, the Lord Chancellor is dealing with judicial appointments; he is responsible for the appointment and we are clearly of opinion that he should continue to have that responsibility unimpaired. If the local committee were to be a public body, the result would be either to weaken the responsibility of the Lord Chancellor or public dispute if the Lord Chancellor refused to appoint persons so recommended. We recommend that the Lord Chancellor should continue to appoint the members of advisory committees, and that their membership and proceedings should continue to be confidential.I do not want to use any other words of my own. My noble friend Lord Royle is nothing if not consistent, because he put down the Amendment, word for word, in another place in 1949.
§ LORD ROYLE
Perhaps my noble and learned friend would allow me to say that subsection (4) was not in that Amendment.
THE LORD CHANCELLOR
I am sorry; I thought it was actually word for word. But the substance was the same. It was not carried to a Division in the other place, but was taken up by Lord Templewood here, and all I want to do now is to read what my noble predecessor, Lord Jowitt, said. He said:… I think we should be making a great mistake if we accepted it. Let me tell your Lordships what my experience of the whole position is, extending as it does over four and a half years. I believe that ultimately the success of the whole scheme depends on the Lord Chancellor. I believe that it should be made perfectly plain that he is completely dominus of the situation. He shares his responsibility with no one at all, and he is the person who is solely responsible for the appointment of magistrates. I believe that 73 we cannot emphasise that too often or too clearly, because I think it is often misunderstood.Though the Lord Chancellor is solely responsible he relies on, and is fortunate in getting, the assistance of an excellent staff who, as your Lordships know, are available on all occasions to the many of your Lordships who are Lords Lieutenant. And, secondly, he has the assistance of the Lords Lieutenant themselves.He then refers to the good relations between himself and the Lords Lieutenant, and the committees. In the next column he says:Sometimes I see the representatives of these advisory committees, and sometimes I see that they have a complete misapprehension of their duties. Sometimes they think they are delegates, as it were, of a Party or section, and that their particular job is to try to get people appointed belonging to that Party or section. When I see them I say to them: Do you realise what you are? You are not creatures of Statute at all; you are simply there for one purpose, and one purpose only —namely, to advise the Lord Chancellor. You are my committees, and what you have to do is to advise me.' I believe it is very important that that should be plainly understood.Quite frankly, I am against this Amendment in principle—I will discuss the detail of it in a moment or two. I am against it because I regard it as the thin edge of the wedge. If it is proposed to make these advisory committees—which so long as I have anything to do with the matter will certainly continue to function—statutory bodies, then the next step will be to make the Lord Chancellor accept their recommendations; at any rate, it will be said that the Lord Chancellor ought not lightly to disregard their recommendations. I believe that that sins against the principle upon which we ought to insist— namely, that the Lord Chancellor is entirely and solely responsible for this work. I think I may claim (I am not speaking for myself, but for my predecessors; I have merely carried on their work in this matter as best I can) that on the whole the system to-day is worked well. But, as I say, these committees are there merely for the purpose of advising the Lord Chancellor, who may or may not take the advice which they give, and who may, if he is so minded, appoint a magistrate without asking them at all.He does not do that often, though sometimes—and I think other Lord Chancellors have found the same—when I seek to appoint a distinguished lawyer who ought obviously to be serving in this capacity, and as a matter of courtesy I generally ask the advisory Committee, I find that they are rather stubborn: and I had to appoint him notwithstanding the advisory committee. We must make it plain that the committees are the Lord Chancellor's committees, set up by him, for the purpose merely of advising him.I believe that if you make the Bill tidier by inserting this Amendment in the Bill— 74 and I can give your Lordships an assurance, so far as I am concerned, that I will carry out the principles of this new clause—you will weaken the position of the Lord Chancellor and prevent him from being what he is today—namely, complete dominus of the situation. Therefore, I am opposed to this Amendment. I believe that we shall do much better to rest where we are to-day. Let us have these advisory committees all over the country, but let them not be creatures of Statute; let them be appointed, as they are to-day, by the Lord Chancellor, to advise the Lord Chancellor, under the control of the Lord Chancellor".— [OFFICIAL REPORT; 20/10/49, cols, 1017–19.]At the end of the discussion I see that the Committee divided, Contents, 9; Not-Contents, 43.
All my advisory committees; are not composed of justices of the peace, and I should not have thought it would be at all a good thing that the local justices should elect them. In some cases I have no doubt at all that this would be done on a political basis. I have members of advisory committees who are, for example, doctors, who are not politicians. A doctor has not time to be a magistrate, but he knows a great many different people, both men and women, in different walks of life. He sees them under conditions of adversity, and he may make a very useful member of an advisory committee, although he has not time to be a justice of the peace himself. Therefore, I can only oppose this Amendment on exactly the same grounds as my noble predecessor opposed it in 1949.
§ 6.13 p.m.
§ LORD BROOKE OF CUMNOR
My approach to this matter is pragmatic rather than theoretical. My approach to the other subject which we were discussing earlier was just the same. When something is working well I am not in favour of altering it on theoretical lines. It appeared to me that we had now won the noble and learned Lord the Lord Chancellor to our philosophic side. Frankly, I have some knowledge of advisory committees in the past, and although the whole of their history has not been universally satisfactory, nevertheless I believe it is a system that works better now; that it is working better now than any alternative system based on election by existing justices would. For that reason, on this occasion I find myself in accord with the Lord Chancellor and I could not support this new clause.
But the noble and learned Lord quoted from the Royal Commission's Report, 75 and one of the reasons given by the Royal Commission for opposing a change of this kind in the appointment of advisory committees was that it was desirable that their membership as well as their proceedings should be confidential. I am wondering whether, before the end of our proceedings on this Bill, although perhaps not to-day, the noble and learned Lord could give us an authoritative statement about this matter of confidentiality. In an earlier stage of the proceedings of the Committee this afternoon the noble and learned Lord described what he had said to the Inner London Advisory Committee. I am paraphrasing it, but broadly speaking he said that so far as he was concerned he did not mind whether they disclosed their identity or not. In the debate on the Second Reading of this Bill in another place on January 23, at column 281 of Hansard (Commons), the learned Attorney General said, with reference to these advisory committees:… the danger is that if their names were disclosed, there would be a lamentable attempt at lobbying them and an attempt to bring presssure upon them to appoint this or that magistrate. It is to avoid the risk of that sort of attempted influence that this secrecy is maintained … I hope that, on reflection, and having had some experience themselves of attempted lobbying, my hon. Friends may think that the discreet arrangements whereby the identity of chairmen and members of advisory committees is kept secret is advantageous in this difficult task of selecting the best men for the magisterial bench.May I say to the noble and learned Lord the Lord Chancellor that I have no desire to cause trouble between him and the Attorney General, and I am not seeking to make any Party point by indicating that there appears to have been a discrepancy between the views expressed, on the proceedings of the same Bill, by two very learned authorities. That is why I suggest that perhaps if not now, at some stage before our discussions of the Bill are completed, the noble and learned Lord might see fit to make an authoritative pronouncement which would catch all this up and remove any apparent contradiction, and enable everybody who reads Parliamentary proceedings to know exactly what the position is as regards the confidentiality of membership of these advisory committees.
THE LORD CHANCELLOR
If convenient, may I do that at once? I have 76 no rule; I leave it to my advisory committees. Most of them are insistent that they must remain anonymous because they say that otherwise they would simply be lobbied to death. I understand that, and if they say that, then I accept it. On the other hand, the Inner London Committee, perhaps the most important committee in the country, do not insist on that, and in fact everybody knows who they are. They make no attempt to conceal their names. It has this great advantage—and there are one or two other places in the country where people do not object to their names being known—that then a sub-committee can interview those who have been recommended to them. This is now always done, for example, in London, and there are one or two other advisory committees that do this.
I feel that I must leave this matter to each of my advisory committees. If they say, "No, we could not serve if our names were known, and this would be impossible where we are", then I feel I must accept that. But I do not try to persuade them to be anonymous at all. If anything, I point out the advantages of not being. On one occasion in order to try to dispel the idea that there is some frightful mystery about how justices are appointed, I referred this matter to the Inner London Advisory Committee. Their Chairman is Lord Denning, and it includes the Chief Magistrate, with the Chairman of Sessions and Lord Rea, and Lord Amulree—men whom nobody would think of lobbying; I should like to see someone lobbying Lord Denning. They did not mind. I said to all the Pressmen, "If any of you want to get hold of a member of the advisory committee and ask exactly what they do, and how it is all done, you can". So I do not want any secrecy, and I would welcome it if more advisory committees said, "We are not nervous of our names being known". But I feel that if most of them say, "This would make things too difficult for us", I must accept it.
§ LORD BROOKE OF CUMNOR
I am grateful to the noble and learned Lord for making mat authoritative pronouncement. I do not seek in any way to quarrel with it. He will, of course, bear in mind that if the confidentiality is no longer imposed from above as it used to be, there is the danger in certain cases 77 of some members of the advisory committee disclosing their personal identity, when the majority of the members of the advisory committee in that place think it undesirable that the names should be published. I can foresee local difficulties arising out of this change. But I do not want to pursue that matter now. I am sure the noble and learned Lord will bear it in mind. So far as this new clause is concerned, I do not think it would be an improvement to the Bill.
§ VISCOUNT BRIDGEMAN
Before we leave that point I am far from disagreeing with anything the noble and learned Lord has said on the matter, but I cannot remember ever having seen a letter addressed to an advisory committee telling them they had discretion whether or not to disclose their names. I feel that if such a letter has not been sent—and I apologise if it has, and I did not know —something on those lines should be written fairly soon regarding the decisions of the noble and learned Lord opposite, so that we may know where we are. Then, if we are going to have this discretion whether or not to disclose, we can set about using it.
§ LORD ROYLE
I have found it rather difficult, sitting on the second Bench immediately behind the noble and learned Lord, to hear all his arguments, and particularly many of the quotations he read to the Committee. I think I heard most of it. He was kind enough to say in the course of his speech that I was pretty consistent in so far as I had moved almost the same Amendment nineteen years ago. It seems to me there is a sense of consistency not only in individuals but in succeeding Lord Chancellors, as the days go by, and if my noble and learned friend is not claiming consistency for himself at the moment he is certainly claiming consistency for Lord Chancellors as a whole in the years that have gone by.
On this little passage which has gone on almost above my head but on my Amendment, I would say only this: why on earth should not the names of members of the advisory committee be known? Surely it is a good idea. Suggestions might be made to members of the advisory committees by the general public which would bring to the attention of the committee suitable names 78 which would never be known to them in any other way. There seems to be no objection at all to the names of advisory committee members being made known in a much more general sense.
In reply to some of the points made by my noble and learned friend I would say that nothing at all in my new clause would take away from the Lord Chancellor the overriding and final authority over the committees. He would be the person to make the check, and if he felt there was an undue influence on the part of one political Party or another, or of one section of the community or another, he would have the overriding authority. My Amendment in no way alters the help and the advice which the Lord Chancellor would receive from the local committees set up in the way I have proposed.
The noble Lord, Lord Brooke of Cumnor, and my noble and learned friend talked about a system that works well, and said we should not alter it. My concern is that systems should be improved, and, with great respect to my noble and learned friend, during the previous debate this afternoon he has been resisting the suggestion as far as the City of London is concerned that because it works well it should continue in its present form. There seems to me to be an inconsistency there. I am becoming an old man, but I hope I have not got past the stage where I am able to see that improvements can be made. It is no guarantee that because one system has been going on, it may be for a hundred years (as in this case), it is necessarily the right system to be continued in the years to come. This question of a system working well makes me rather impatient. It seems to me to be much better that we should be looking for improvement all the time.
Well, I moved this Amendment 19 years ago. I know when I am not getting any support in your Lordships' Committee and I do not believe in kicking brick walls, or anything of the kind. All I can say is that in another 19 years I will try again, and if I am not succeeding now and if I did not succeed in 1949, it may well be that in 1987 I shall succeed. In the meantime, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.79
§ Clause 2 [Age for transfer of justice to supplemental list, or for retirement of stipendiary magistrate]:
§ 6.25 p.m.
§ LORD SWAYTHLING
moved, in subsection (1), to leave out "subsection (3)" and insert: "subsections (3) and (4)". The noble Lord said: This Amendment is only, so to speak, a consequential part of Amendment No. 13. Therefore, by leave of the Committee, I will speak to the latter Amendment now.
In Clause 2(2) your Lordships will see it is suggested that stipendiary magistrates should vacate their office at the end of the completed year of service in the course of which they attain the age limit. My suggestion is that the same principle should apply to the chairman of a bench of magistrates.
I considered for a moment asking the Committee to make a change of this nature for all magistrates attaining the age limit, but then I saw there was some disadvantage in possibly a number of magistrates on the same bench having to retire on the same day, and I think it right that they should retire, as at present, on their birthdays, on different dates throughout the year.
The same does not apply to the chairman, and it would be easier for all purposes if he finished his year of office. When a chairman has to leave in the middle of a year the bench has to meet specially in order to appoint another chairman, and there are other complications. It appeared to me that no bench would elect one of their number to be chairman unless they were convinced that he could carry out the duties properly until the end of the year.
I know that it is customary in your Lordships' House to declare an interest but I have not done this because in my case it might be called, in the modern jargon, a 'mini-interest". I have the honour to be chairman of my bench at the moment, and if I am still chairman when the retiring age catches up with me it will be only a fortnight or so before my year of office would be over. As I have said, my Amendment would put the chairman of the bench in the same position as the stipendiary magistrate, which would be for the convenience and efficient working of petty sessional divisions, so I hope that Her Majesty's 80 Government will accept the Amendment. I beg to move.
Page 3, line 29, leave out ("subsection (3)") and insert ("subsections (3) and (4)")—(Lord Swaythling.)
THE LORD CHANCELLOR
I sometimes think it is a great pity that we cannot vote by a show of hands, because I should like to leave this Amendment entirely to the members of the Committee, although I hope that we shall not have to take a vote in order to find out. Those of your Lordships who are justices have an advantage over me in this regard. The point is that normally the bench has an election in October, with the chairmanship starting on January 1. The noble Lord, Lord Swaythling, asks whether it would not be much better if, instead of chairmen who reach the retiring age (whether it is 70 or 75 does not matter) being put on the supplemental list on the day they become 70 or 75, they went on until January 1 because otherwise there would have to be an election in the middle of the year.
I should be glad to know what the noble Lord, Lord Brooke, thinks of this suggestion. Administratively there is something to be said for it, because it means that the chairman is appointed in October and then, instead of his having to go on the supplemental list on the day he reaches retiring age, he will go at the end of the year, and the new chairman who was elected in October will start on January 1. There are only two difficulties in this regard. In the first place it means that, in practice, 70 will become 70½. On average, it will mean that a person will go on for another six months. In some cases it will be 11 months, and in others, only one month, so that this Amendment would make the practical retiring age six months later.
The second point is that I am told that in practice it is rare to have an election during the course of the year. What usually happens is that at the election in October Mr. Snooks says "I shall be 75 in March, so if I am appointed I cannot complete my year, and therefore I will not stand". Those who have experience of such matters can tell me whether or not that is so. Therefore, although at first sight the noble Lord's Amendment has the effect of preventing a number of 81 elections in the middle of the year, I am told that in fact, for the reason I have given, they do not occur at the moment. Although, administratively, there seemed to me at first sight a lot to be said for the Amendment, having regard to the fact that it really increases any age limit by six months I do not feel prepared to accept it, unless the Committee as a whole make it clear they think it preferable, in which case I will.
§ LORD BROOKE OF CUMNOR
I am not a magistrate, so I am not sure whether I have any title to speak with authority on this matter. The only thing I would say with fair assurance is that in my view the skies will not fall whichever way the Committee decide. I am attracted by the suggestion the noble Lord, Lord Swaythling, has put forward, despite the disadvantages which the noble and learned Lord, the Lord Chancellor, has suggested. If a person is chairman of the bench and if, as the Lord Chancellor hopes, the additional training arrangements for chairmanship are fulfilled, it seems to me that we can look forward with fair assurance to the chairman of the bench being somebody who is thoroughly well qualified to be chairman, even if that does not always happen now. In my view it does generally happen, but I can imagine exceptions.
It still seems to me that if there were a chairman who was ageing it is unlikely that he would press his claim for re-election supposing that his birthday occurred in January or February. I think it likely that he would prefer not to be re-elected. At the same time, there seems to me to be considerable administrative advantage in removing the possible necessity for a special election when a chairman's age limit is going to run out before the end of the year. I would, finally, submit this thought. I do not think there is absolute sanctity about any of these birthdays, the 70th, 71st, 72nd, or whatever it is. We all know that the effect of age varies greatly with different people. I should have thought that if the Government were willing it would be a good thing to allow the noble Lord, Lord Swaythling, to have his way and to amend the Bill in this sense.
§ LORD CHORLEY
I should like very shortly to support this proposal. It seems to me commonsense, and certainly ad- 82 ministratively there is a great deal to be said for it.
§ VISCOUNT BRENTFORD
If the noble and learned Lord, the Lord Chancellor, desires the views of the Committee, I would simply say that I would support the Amendment.
§ 6.34 p.m.
§ LORD ILFORD
moved, in subsection (l)(a) to leave out "seventy" and insert "seventy-five". The noble Lord said: This Amendment also deals with the age limit for magistrates. The age at which a magistrate is entered on the supplemental list and his service as a magistrate virtually comes to an end is at present 75. The Bill proposes to reduce the age limit from 75 to 70, and the purpose of my Amendment is to retain the age at 75. This Bill really invites your Lordships to accept the proposition that a man's faculties will have so far decayed at the age of 70 that he is no longer able to discharge the Junctions of a magistrate with full efficiency. I feel sure that, when I put it in that way, the experience of most of your Lordships would not bear out that proposition. Looking around this Chamber, I see -many noble Lords here who have passed the age of 70 and who are fully capable of carrying out not only the duties of this House but the duties of a magistrate as well, if they were invited to do so.
I do not think that anybody would disagree with the view that an age limit should be fixed for the retirement of magistrates. It is a good many years since I went much into the magistrates' courts, but I still retain some very painful recollections of endeavouring to present a case to magistrates whose faculties, particularly their faculties of hearing and of seeing, had begun to decay. It was a very difficult and unrewarding task. That decay does not set in at the age of 70. At one time I had a good deal of experience of old people, and their capacities and incapacities. I am quite sure that the real chang in a man's faculties comes not at the age of 70 but at the age of 75. That is my experience. I always felt, when I was 83 responsible for these matters, that we ought perhaps to treat the over-75's rather more generously than we treat the under-75's.
There is another reason why we should retain the present age limit at 75. To adopt an age limit of 70 seems to me to restrict unduly the services which certain classes of persons are able to give as magistrates. I have in mind in particular the sort of men who are engaged in building up a business or professional practice. The difficulties of these men, or the obstacles which they encounter in accepting appointments as magistrates, are not met by the payment of travelling allowances or subsistence allowances, or indeed loss allowances. Their difficulty is that they cannot quantify in terms of currency what their loss really amounts to. It is not a financial loss which deters them: it is the disturbance to their office routine, the additional work which their absence from the office would throw upon their partners. It is considerations of that sort which deter men engaged in this way from accepting appointments as magistrates.
By the time a man reaches 60 these considerations are no longer of the same importance. He can give the necessary time to the work of a magistrate and is prepared to accept appointment to the bench. But under the provisions of the Bill when he reaches the age of 70 his service as a magistrate comes to an end. That, I think, is imposing an unnecessary, an undue restriction on the particular type of man who I think all our experience shows makes a good magistrate when he comes on the bench. The noble and learned Lord, the Lord Chancellor, told us in the Second Reading debate that he does not ordinarily appoint a justice over the age of 60. As this class of person of whom I am speaking is more likely to be able to give the necessary time from his business or profession when he is over 60, his opportunity for serving as a magistrate is still further restricted.
I said a moment ago that these are the persons who normally make good magistrates, and it seems to me to be wrong to restrict their opportunity of serving as magistrates both at the upper age limit and the lower age limit. It 84 means, in effect, that a man engaged in this sort of occupation can hope to be made a magistrate only for a relatively short period between the ages of 60 and 70. The noble and learned Lord, the Lord Chancellor, told me during the Second Reading debate that there was no difficulty in getting magistrates— indeed, I think he said there were more recommendations from the advisory committees than he was likely to be able to appoint. I think that the noble and learned Lord rather missed the point that I was then endeavouring to make.
I was endeavouring to make the point that I have been making to-day: that the restriction on the age limit imposes an undue restriction upon this class of individual. I do not imagine that the noble and learned Lord has on his advisory committees an excessive number of persons in this class. The point I was endeavouring to make on Second Reading was that this restriction prevented this class of person from taking the part which he otherwise would take as a magistrate. I am not sure that the answer that the noble and learned Lord gave me on Second Reading really reached that point. The difficulty that I feel about this particular class of person is, I think, a real difficulty. I think that more would be lost than would be gained by reducing the age limit to 70. For that reason I hope that the Committee will see fit to amend this Bill and retain the age limit at 75. I beg to move.
Page 3, line 32, leave out ("seventy") and insert ("seventy-five").—(Lord Ilford.)
§ 6.42 p.m.
§ LORD CHORLEY
I should like strongly to support this Amendment. I suppose I ought to start by declaring an interest as one of the magistrates who, in due course, will feel the axe if the present proposal in the Bill is carried through; but my withers are not wrung on that. I think we start with the findings of the Royal Commission. I have noticed that the noble and learned Lord was prepared to quote the Royal Commission on more than one occasion when it suited his case. Here we have a most important and quite categorical finding by the Royal Commission, which in all the circumstances recommended the age of 75. They evidently gave a great deal of thought to 85 it. I remember that at the time doubts about it were expressed in various quarters, and, as I understood it, the Home Office, which at that time was much more in the picture than it is now, felt that this was wrong and that 70 would be a more appropriate age. But when it came to Parliament, so far as I know no effort was made, either in another place or here, to substitute 70, and 75 was in fact fixed. In my view, 75 has worked very well indeed.
This is another case of interfering with something which, in all my long experience of this particular matter, has worked, and is working, well. I do not think there is any real case made out, except again this rather doctrinaire one that some people are rather old after they pass 70 and that therefore all the people who are over 70 but who are still very much compos mentis should, not so much to their own loss as to the loss to the community, be removed from the bench. This is a serious matter.
As shortly as possible because it is getting late, I should like to make a number of points which seem to me to be most relevant to this discussion. In my experience—and I have been chairman of quarter sessions now for 25 years—magistrates are at their best between about the ages of 67 or 68 and 75. Experience is of immense value in judicial work. I do not think that one can stress that too much. I remember when I was a young barrister its being said that a judge was only really good after he had been on the bench for ten years, and that between his tenth and his fifteenth year he was at his best. There is a great deal to be said in support of that. Judicial work is quite different from executive and administrative work, which was referred to by the noble and learned Lord when he pointed out that civil servants have to retire in their sixties. The work that the civil servant does and the work which the executive in business does is quite different from bringing one's mind to bear, in association with colleagues, other magistrates, upon whether a charge is made out and, if it is, what punishment should be imposed.
I have found that the experienced magistrate of 10, 12 or even 15 years' service is of the greatest value in the discussions which take place in the magistrates' room, particularly at the time 86 when it comes to deciding what is to be done with the convicted person. If I were deprived of them I say, quite frankly, that I should lose those on whom I particularly rely. The noble Lord, Lord Ilford, has referred—and I agree with every word he said about this—to the difficulty of recruiting good men from the business world at much below the age of 60. The noble and learned Lord the Lord Chancellor is no doubt perfectly right when he says that there is no difficulty about finding people who are ready to become magistrates. Of course there is not. There are a number of people who are always working as hard as they can to become magistrates, many of them reasonably well qualified. But they are not as well qualified as many of the others whose names are discussed in the advisory committees and who are then approached. Time after time we have been told, "So-and-so says he cannot do it because he is too busy with his business. In a few years he will be able to accept the suggestion". That is exactly what the noble Lord, Lord Ilford was saying.
It is most interesting to look at the Report of the Royal Commission, where they discuss how far magistrates attend to their duties. At page 9, paragraph 31, they point out that those in business on their own account and the lesser employers represent a low proportion of those who do not attend at all, but their average of attendance is low. They just cannot do it if they are to attend to their business. Now that the requirements of the Lord Chancellor are quite properly more stringent than they were in the 'forties, the man says, "I could not give the time which is now required of me. I shall get into trouble if I do not turn up, and I just cannot afford to ruin my business."
These types of people are valuable, and I am sure that Lord Ilford is absolutely right when he says that we shall to a large extent lose them if we put the retiring age to 70. In effect, we shall deprive ourselves of these people, because in the short time allowed they will not have the opportunity of getting the experience which is most essential to the making of a good justice. You just cannot do it effectively if you are not appointed until you are about 60, and then you have to retire at 70. Of course, 87 there are certain types of people in the community whom you can get very easily; and they are very good people, people who teach in schools and people who are engaged on that sort of work. They can get away, and they make good justices, but it would destroy the balance if you were to compose the benches entirely of people of that kind. The schoolmaster or schoolmistress can bring a certain quality of mind to the work, which is of great value, but the real value of our benches of lay magistrates is that they bring a balance of experience and knowledge to the work. If you rely too much on school teachers, and people of that kind, then you get an unbalanced bench, and you deprive yourself of the sort of people you really need if you want to do this work effectively.
Unfortunately, I was not able to be present at the Second Reading. I had to preside at my own quarter sessions on the day that was taken, but I have read what was said by the noble and learned Lord with very great care. The two main points that he made were based on infirmity and on waning powers. They are not quite the same thing. Definite infirmities like deafness or ageing lead, as he said, to momentary failure of attention which may lead to a wrong decision. With regard to the main infirmity—and, of course, deafness is the main infirmity from which magistrates suffer—retirement at 70 is really no safeguard. This point was made by the noble Lord, Lord Brooke, in his speech on the Second Reading. The deaf really must be eliminated, or the deaf who are so deaf that they cannot really hear what is going on, and it is quite absurd to try to do this by means of establishing the retiring age at 70. In actual practice, of course, if somebody does become as deaf as that, then steps are taken, and as a rule it does not take more than a few weeks to persuade the person in question to leave the bench. That has happened to my knowledge on more than one occasion. However, it would really be very much better to have some proper method of dealing with this problem rather than just establishing the age of 70, and it may be that the suggestion of the noble Baroness is right.
My own suggestion would be that the advisory committee ought to have a 88 meeting every year in order to go over the list of magistrates and decide whether so-and-so has, in fact, become so deaf that he or she ought to be asked to retire. When I am told that this is invidious, I really cannot see why that should be so. After all, the committee have the job of choosing the people and advising the noble and learned Lord as to their appointment. Is there any earthly reason why they should not also have the job of looking through the list and deciding whether these people are really fit to go on?
§ LORD MITCHISON
Would my noble friend tell me whether there is an age limit for members of the advisory committee?
§ LORD CHORLEY
The age limit of the advisory committee is the age limit for magistrates, but it is within the hands of the noble and learned Lord, and he can see to it that they are so constituted that they are properly qualified to carry out this task. The power of concentration and momentary inattention is, of course, a different matter. The great safeguard here, I suggest, is that magistrates sit in groups, and if one of them loses attention for a time, then when they consult together in the magistrates' room those who have kept their attention and remained awake know what happened, and there is no particular difficulty about it. It is quite different from the case of a single stipendiary or, indeed, for that matter, a single judge. Stipendiaries are to retire at 70, but Judges of the High Court go on until they are 75, sitting by themselves. The type of work with which judges deal is infinitely more difficult and exacting than that which is dealt with by groups of magistrates who, as a rule, do not sit so long and so continuously as the judges. Yet this group of magistrates—who can put one of its members right when there is some momentary lack of attention of this kind—is to be deprived of the services of their more elderly members. It seems to me that this is quite wrong, and that the argument in favour of it really does not hold water.
There is a better case for getting the chairmen to retire at 70 than the others. It may well be sensible that the chairmen should not go on beyond the age of 70 or thereabouts, and certainly in regard to a chairman of quarter sessions—which 89 the noble and learned Lord has now taken a line about, and in which again I have an interest—I feel that he is quite right, because the position of the chairman at quarter sessions is altogether a more exacting one. It is much more like that of the Judge at a Court of Assize. He has the very difficult task of summing up the case to the jury. He has to deal with questions of whether evidence is admissible or not, and he has to be very much on the qui vive right from the sitting of the court early in the morning, often until pretty late at night—a good deal later at night than most Judges of the High Court are prepared to sit. The strain on recorders and chairmen is a very heavy one, and there is a much stronger case there, I think, for requiring that they should retire at the age of 70. But with groups of magistrates who are sitting, so to speak, in colleges, I think that the case is not made out at all, and I hope the noble Lord, Lord Ilford, will insist on this Amendment.
§ 6.58 p.m.
§ LORD ROYLE
I hope that my noble and learned friend will resist this Amendment. I take the exactly opposite line from the one my noble friend Lord Chorley has taken. I remember being told a story by the then Mr. Chuter Ede of when, after the recommendation came from the Royal Commission that there should be a retiring age for the first time, and they suggested it might be 75, a conversation took place between the then Home Secretary, Mr. Chuter Ede, and the then Lord Chancellor, Lord Jowitt, as to what age should be put into the Bill. Mr. Chuter Ede said: "I know this House of Commons; they will insist on 65, the retiring age from industry, the retirement pensionable age, and so on. I think that is a bit low. We will put 75 in the Bill. They will move an Amendment to make it 65, and we will graciously accept 70". Nobody moved an Amendment, and that is how 75 came into the 1949 Act. From that day forward I have always felt that the age of 75 was too high.
I agree with the noble Lord, Lord Ilford, that there are very many Members of your Lordships' House over the age of 75 who are quite capable of doing their work in this House. Their contributions towards the debates and discussions of the House are first-class. But 90 it is a very different matter making a reasonable contribution to a discussion and debate in your Lordships' House from sitting on the bench and judging one's fellows. This is a very responsible task indeed, and when you remember what lay magistrates are able to do in these days in the way of imposing penalties and sentencing people to imprisonment, I suggest to your Lordships that we must be terribly careful. There are many able people over 75 who are competent to sit on a bench of magistrates, but this is something on which one has to generalise. No man or woman is able to judge himself or herself.
§ LORD ILFORD
I was dealing with persons who were under 75, these between 70 and 75. I was not dealing with those above 75.
§ LORD ROYLE
I am talking of the suggestion in the Bill that the present age limit of 75 shall be reduced in easy stages to 70. I would at once put it down to 70. As my noble and learned friend knows, when I attained the age of 70 I voluntarily went on to the supplemental list because, in the light of what I had seen of other people, I felt that I might not be able to judge my own capacity to carry on in a job of that description. Experience is important, but in this matter capacity is even more important.
My noble friend Lord Chorley talked about businessmen. We are not asking them to leave their businesses for hours upon end. A petty sessional court in a borough often sits only once a week, for a few hours. In the counties many courts are not called upon to sit more than fortnightly, or even monthly. This is not a great sacrifice for businessmen under the age of 70. There is no doubt that people actively engaged in business and in industry can spare that kind of lime.
Drawing from my own experience (and this is relevant to the Amendment by my noble friend Lady Summerskill about deafness), I remember sitting with an elderly magistrate who was very deaf and who was in the chair. It was during war time, and the court had before it a conscientious objector. When he had given evidence on his own behalf, the chairman cupped his hands round his ear and said, "Have you any witnesses to 91 call?" The man replied, "God is my witness". "Then," said the chairman, "put him in the box". That chairman at that time was not 75, but he was very deaf; and he thought that he could hear and was not too old. Who is going to judge? As I have said, generalisation is called for in this matter. We must be sure that people who are judging their fellows are capable of judging them and of imposing penalties. I hope that the Committee will have nothing to do with this Amendment.
§ VISCOUNT BRIDGEMAN
I am not sure that I would put down the same Amendment as my noble friend Lord Ilford, but I am sure that, as I am over 70, little notice will be taken of anything I have to say. But I should like to make one or two points. In the 16 years during which I have been chairman of an advisory committee in Shropshire— and each year we have taken notice of any reports we hear or any knowledge about the state of magistrates' health—I have never had any occasion to think that justice had not been done simply because anybody on the bench was 75. That is my own experience. I am simply putting forward that experience against possible theories elsewhere. I have always felt that 70 was far too low as a rigid age limit. That led me to wonder whether the Royal Commission which reported last had ever read the Companies Act. I was reminded of that because I saw the noble Lord, Lord Cohen, in the Chamber. The noble and learned Lord opposite will not need me to tell him that the rule in the Companies Act about directors is that if you want to get rid of a director under 70, you show cause why he should go; but if you want to keep him on over 70, you show cause why he should stay. Is it impossible for some sort of arrangement to be made for magistrates between 70 and 75, whereby healthy or valuable magistrates should be recommended to the Lord Chancellor and to advisory committees, say, from year to year? I throw out this idea as a possible halfway house as something which is worth consideration.
§ THE EARL OF CRANBROOK
I became a magistrate as a young man in my early 30s, and I found that some older ones, although they tried very hard, were completely out of touch with the 92 outlook of my generation which made up the bulk of the criminals with whom we had to deal. I do not think any of us would say that there are not men over 70, even occasionally over 75, who are not fully capable of carrying on, but as we get older we all realise that we are not so closely in touch with the younger generation as we were. I made up my mind then that, come what may, I would retire at 70; although I must confess that now I am so fascinated by the arithmetic of the clause which says when we are to retire that I cannot make out whether it is to be 71 or 72. Therefore, I am inclined to wait until the noble and learned Lord opposite solves the problem for me by telling me to go. I am quite certain, after well over 30 years on the bench, that it is not so much that people on the bench are getting too old and are incapable of carrying on, but that there are just as good fish in the sea as come out of it. It is those "fish" we want to get on the bench, rather than to keep the old fish—who, I must confess, from listening to the debate to-night, remind me of a song of the First World War, which those of us who are near 70 can probably remember. The song ran:Send out me brother,Me sister or me mother;But for Gawd's sake don't send me.That seems to me to be the outlook of one or two of the more elderly Peers here to-night, and I hope that this will not go out as the outlook of this House as a whole. I believe that 70 is the age at which the limit should be set, since we should like to see the young men coming along and taking our places.
§ LORD PARKER OF WADDLNGTON
This subject is one for considerable emotion, according to one's age. Therefore I would declare my interest as nearing "zero" under the Bill. Despite being a magistrate—not ex officio—I would certainly leave the Bill as it is and vote against the Amendment. Many people, whether one is considering magistrates or judges, are good, and extremely good, at 75, at 80, and even over 80; but there are some who are not. We are all agreed that it is far simpler to have one definite age. It was suggested that something in the nature of an extension might be granted by the advisory committee. I always find any extension of retiring age an invidious 93 matter and something difficult to do. To choose one person and say that he shall sit on for two years or five years and not another person is, in effect, only asking for trouble. Therefore, there must be one date.
What should it be? Most of us if we are honest with ourselves would say that 65 is perhaps the optimum age. After that, perhaps what one loses in physique and in keeping in touch with the modern generation is made up, one hopes, by expertise. But a time does come when, as it were, expertise has to give way to not keeping up with the modern world, and I myself think that, while there are plenty of people over 70 who are fully capable of doing the job, 70 is about the right age, and we ought to stick to that.
THE LORD CHANCELLOR
I hope the noble Lord, Lord Ilford, will not press this Amendment. I did not, I think, say that I received more recommendations than I could appoint, because advisory committees do not ordinarily recommend more than there are vacancies for. I meant that the advisory committees get more people recommended to them than there are vacancies for.
I think there is general agreement that one must have a retiring age; and, indeed, we have one already. I respectfully agree with what the noble and learned Lord, Lord Parker of Waddington, said about making the retiring age extensible. I have some powers in the case of the lower judiciary, but in practice I never do it, and I do not think my noble and learned predecessor did, either. It is very difficult to say, "Yes, the senior Queen's Bench Master can have another couple of years, but the senior Chancery Master cannot." You offend so many people trying to do that, that in practice I am afraid it is impossible. So it is really only a question of what the age should be.
It is true that the Royal Commission recommended 75, but up to that point there had been no retiring age, and experience shows that when a retiring age is laid down for the first time it is usually made high. I remember that in the case of the High Court Judges, the Young Barristers' Committee of the Bar Council said, "There ought to be a retiring age for High Court Judges. We think it ought to be 65." We older ones on the Council 94 thought that 65 was very young, particularly for a start; so we recommended 70. Then the Government, I suppose to be on the safe side, made it 75. The reason given by the Royal Commission was that the change had to be spread over five years, even if 75 was introduced; so, obviously, if you tried to impose a retiring age of 70 at that time the magistrates would have been decimated.
One realises what a very delicate subject this is in your Lordships' House. What is the right age is entirely a matter of opinion. I am told that a few years ago the Magistrates' Association passed a resolution expressing the hope that all justices would go on the supplemental list at 70. I think I spoke last time of the accumulation of experience of the Lord Chancellor's Office, which relates in the main to judicial appointments rather than to life in general. If one has to choose an age at which, on the whole, people are not quite so good after it as they were before, I would put it at 65. But, with respect, I think that 70 is right for justices of the peace.
§ LORD BROOKE OF CUMNOR
I think it was very right that my noble friend Lord Ilford should move this Amendment and bring the matter before the Committee. I also venture to say that this is a field in which it is impossible to do perfect justice. At the beginning of this debate I was not at all sure on which side I should come down, but, having listened to it, I am much impressed by what was said by the noble and learned Lord, the Lord Chief Justice. He and the noble and learned Lord the Lord Chancellor are at one in thinking that the Bill should remain unamended. We shall be losing thereby a number of people who could continue to give very definite service on the bench. We have to weigh that against the alternative: that some people may be staying on when they arc really past it, and it is extremely invidious for any Lord Chancellor at that stage to get rid of them. I do not know whether the new clause in the name of the noble Baroness, Lady Summerskill, will open up fresh possibilities, because deafness is surely a still greater disqualification than being over 70.
In the circumstances, I fear that I cannot urge my noble friend to do other than withdraw his Amendment, having ventilated the subject, because it seems 95 to me that there is a case for reducing the age and seeing what happens. If, in fact, we lose a great number of admirable justices and it is hard to replace them, then Parliament will have to think again. We have heard the noble and learned Lord the Lord Chancellor say that there are, as it were, long waiting lists in the files of the advisory committees, and I should think that justices are replaceable. It is sad to lose anybody who is so capable of doing good service, but this is a case where one has to weigh one consideration against another and, on the whole, I am on the side of the Bill.
§ LORD ILFORD
I have no wish to press the Government about this. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Amendment moved—
Page 4, line 27, at end insert—
("(4) A person who holds office as chairman of a petty sessional division of justices on the date when his name falls to be entered in the supplemental list in accordance with the foregoing provisions of this section shall have his name so entered on the 31st December next after that date.")—(Lord Swaythling.)
§ Clause 2, as amended, agreed to.
§ 7.16 p.m.
§ BARONESS SUMMERSKILL moved, after Clause 2, to insert the following new clause:
§ Medical Tests
§ ".—(1) The Lord Chancellor may by statutory instrument make rules, which may be annulled by a resolution of either House of Parliament, prescribing medical tests to be taken by justices of the peace at such times as he thinks fit, and in particular requiring that justices of the peace shall have their hearing tested by such means as may be prescribed.
§ (2) Rules made under the last preceding subsection shall prescribe standards of fitness, and the name of any justice of the peace who is shown by such a medical test as aforesaid not to be of the prescribed standard of fitness shall be entered in the supplemental list."
§ The noble Baroness said: It seems to me that the discussion Which we have just had has been an excellent curtain-raiser to my Amendment. I hope that 96 the noble and learned Lord the Lord Chancellor, who has kindly sat throughout this long debate, will keep an open mind on this question, because it is quite clear that opinion is moving on these subjects. He quite rightly said that this is a delicate subject, the delicacy being that an individual does not like to admit that when he has reached a certain age he should retire; and, indeed, an individual finds it extremely difficult to be objective on this subject. My Amendment is of such a character that I am hoping the Lord Chancellor will realise that all delicacy can be removed by making it compulsory for medical examinations to take place at certain stated intervals.
§ The noble Lord, Lord Chorley, said that it was invidious to suggest, for instance, that a justice of the peace could not hear; in fact, that his powers were waning. I shall never forget the joke of the noble Lord, Lord Royle, about the justice of the peace who could not hear. When somebody mentioned God he said, "Well, put God in the box". This is something which we must approach in a logical manner, and I want to develop a logical argument.
§ I think we all agree that our modern legislation seeks to afford protection to the individual who is at risk. The latest piece of legislation of this kind is about the breathalyser. Of course, there are people who object; there are the publicans who object and the motorists who object. Again, it has been said, I think only comparatively recently in this century, that because bus drivers, train drivers and pilots put people at risk they must have a periodical medical examination to ensure that they can perform their duties adequately in the interest of the public. Let us put first not the delicate feelings of a justice of the peace but the interests of the public, the interests of the person who is being charged.
§ It is not surprising that methods have been introduced, some of them by the noble and learned Lord the Lord Chancellor and some by his predecessor, for protecting the individual whose reputation is at risk and whose whole future can be jeopardised if our legal system is not the best which we can design; and in consequence free legal aid was introduced. More attention is now being directed to the quality of the justice of 97 the peace who is dispensing justice, and the Lord Chancellor, particularly during his term of office, has been exercising great discretion in his choice, because, as he has told us on other occasions, 98 per cent, of crime in this country is reviewed by justices of the peace. His predecessor, Lord Dilhorne, introduced a course of training, again because he felt that the justice of the peace should be the best that we could provide. This Bill to-day reduces the age of retirement to 70; and my Amendment seeks to improve the quality of the justice of the peace further by ensuring that he is not suffering from some disability which will impair his efficiency.
§ Nobody likes to admit to waning powers. Everybody else's powers wane, but never one's own. It is extremely difficult to be objective in this matter. We were discussing ages just now. Frankly, I would rather be tried by a justice of the peace of 75 with perfect hearing than by one of 65 whose hearing was unreliable. Surely a cardinal feature of our law is that a man is acquitted or convicted according to the evidence, and in the main this will be oral evidence. If justice is to be done, this evidence must be heard perfectly. Human nature being what it is—or, let us say, human vanity being what it is—if an individual cannot hear, or can only partly hear, he may conceal the fact, or pretend to hear. In my opinion, if this is done in the case of a justice of the peace then justice is not served. In my Amendment—and your Lordships will see it is very widely drawn—I am simply asking the Committee to ensure that justice is served by allowing the Lord Chancellor to arrange for medical examinations at certain times, and particularly to ensure that the hearing of a justice of the peace is not defective. I beg to move.
After Clause 2, insert the said new clause. —(Baroness Summerskill.)
§ LORD BROOKE OF CUMNOR
I think we should all have a good deal of sympathy with the purpose underlying this new clause proposed by the noble Baroness, but its method strikes me as somewhat rigid. It would be helpful, I think, if the noble and learned Lord the Lord Chancellor could describe to the Committee what his policy and the policy 98 of previous Lord Chancellors has been in seeking to ensure that no one sits as a justice who has reached a stage of infirmity, particularly a stage of deafness, which disqualifies him from dispensing justice and may indeed impair the reputation of the local bench. One is well aware that, in the main, those who are no longer fit to sit drop out. I am afraid one is also aware that there are exceptions, and from time to time there are well-authenticated complaints that so-and-so is continuing to sit on a particular bench when frankly he is no longer up to the job. My criticism of this new clause is its rigidity rather than its purpose. I hope the noble and learned Lord the Lord Chancellor will be able to satisfy the Committee that the arrangements already are such, or alternatively that he is tightening up the arrangements so that they will be such, as to ensure that no-one whose powers are waning, and in particular no-one whose hearing is deteriorating, shall continue to be free to sit on the bench and dispense justice.
§ 7.24 p.m.
THE LORD CHANCELLOR
I have a great deal of sympathy with this Amendment, but it raises, I think, an extraordinary number of difficulties. If it is right in principle, then it must be equally right that judges, recorders, chairmen of quarter sessions, county court judges and county court registrars should also have an annual test, because it is just as important that they should be able to hear as it is that justices of the peace should be able to hear But, then, why should this be confined to the legal profession? I do not know whether it is true or not—my noble friend will know better than I do—but I read in the paper this morning that there are believed to be between 10,000 and 20,000 epileptic motorists. If anybody ought to have an annual medical examination, ought it not to be motorists? It says on the form, "Do you suffer from any disease which…?" Has anybody answered that, "Yes"?
THE LORD CHANCELLOR
But it would be a difficult thing. What about Members of Parliament, and what about the 20,000 people sitting on tribunals, if we are to have a test, annual or whatever 99 it is? Then the Amendment does not make it plain whether it is to be merely of hearing. It speaks of "standards of fitness". But is not sight just as important as hearing, and perhaps even not having a bad liver? And if it is hearing, one doctor will say "Yes", and another will say "No" unless we lay down the number of decibels, I suppose, that they are required to hear. Further, is this with a hearing aid or without a hearing aid? Because in the case of driving a car the form says, "Using glasses if you use glasses".
Frankly, I am afraid that the policing of all this would really be too much. There are 16,500 justices. My unfortunate staff are working flat out. They are taking work home every night; and there is a freeze on the number of civil servants—no more may be employed. It is quite impossible for me to take on an operation of this kind. What we rely on is the advisory committee. All my advisory committees know that when they make their annual report at the end of the year it is part of their business to satisfy themselves that no justice on their bench suffers from an infirmity which makes him unfit to go on. I hope the noble Baroness may be reassured if I tell her that I shall certainly undertake to remind all my advisory committees that that is what they must do; because if there are any deaf people who ought to be removed from a bench and put on a supplemental list, this is really a reflection on the advisory committee concerned. These committees, as far as I know, are discharging this difficult task as efficiently as they do any other, and perhaps those with experience of this subject may care to let the Committee know. For those reasons, while I have a great deal of sympathy with the Amendment, I am afraid I cannot advise the Committee to accept it, and I hope that my noble friend will think it right to withdraw it.
§ BARONESS SUMMERSKILL
Of course, I have no intention of pressing this Amendment. I am grateful to have the sympathy of my noble friend. I thought at the beginning of the debate I had not got even that. I should be grateful if he would do as he suggests and tell his advisory committees to keep their eyes open. As the noble Lord, 100 Lord Chorley, said, it is an invidious thing; it is very difficult for people to tell somebody else that their powers are waning. As to the other points my noble friend has mentioned, I do not think there is any comparison between an epileptic driving a car and a justice of the peace, with the functions he performs. But I am not going to pursue that matter because the hour is late. I want only to thank my noble friend for his promise. I feel that we have at least gone a little way towards what might be the final goal.
§ Amendment, by leave, withdrawn.
§ Clauses 3 and 4 agreed to.
§ Clause 5 [Justices' clerks]:
THE LORD CHANCELLOR
had given notice of his intention to move, in subsection (3), to leave out "questions of law" and insert "law on questions". The noble and learned Lord said: I do not propose to move either Amendment No. 15 or No. 16. The reasons why I will explain on the Motion, That the clause stand part of the Bill.
§ On Question, Whether Clause 5 shall stand part of the Bill?
§ VISCOUNT DILHORNE
I should like to put a few questions on this clause. I find it difficult to understand what Clause 5(3) as it stands is directed to, or the need for it. The noble and learned Lord the Lord Chancellor did not say much about it on Second Reading. First, what are the "sessions" referred to in line 12? Are they the petty sessions? Presumably they are, because we are dealing here with justices' clerks. Why is it necessary to have a special statutory provision for the giving of advice by a justice's clerk in connection with the discharge by justices of their functions as justices out of sessions? What is the need for any statutory provision of that sort? I should have thought it was the sort of thing that goes on now if some question arises about the discharge by the justices of their functions when they are not sitting as justices in a magistrates' court. I should have thought the person to whom they would turn immediately for advice would be the justices' clerk, and that he would give it. Therefore, I find it difficult to understand at first sight the reason for the inclusion of this subsection.
101 Secondly, I should like to ask the noble and learned Lord the Lord Chancellor to explain what are the particular functions of the justices out of sessions. Perhaps he will give me some indication of those functions to which this particular subsection is intended to apply.
THE LORD CHANCELLOR
Clause 5(3) is a declaratory provision to the effect that the functions of the justices' clerk include the giving, at the request of the justices, or at the request of an individual justice who is exercising his functions out of court—for example, issuing a warrant of arrest or search— of advice on matters of law. The subsection also covers the possibility that the justices' clerk may not actually be present in court when the point of law arises and provides that in those circumstances the justices may request advice. The subsection refers only to questions arising out of sessions; that is to say, out of quarter sessions, since it would not be practicable or appropriate for county justices sitting at quarter sessions to seek the advice of the clerk to the bench of justices of which they are members. The concluding words of the subsection make it clear that the clerk may take the initiative by drawing the attention of the justices to a point of law of which they might otherwise have been unaware.
The subsection is based on the Practice Direction given by the noble and learned Lord, Lord Goddard, as Lord Chief Justice, in 1953. During the Second Reading debate the noble and learned Lord, Lord Parker of Waddington, questioned whether the wording was right, and the two Amendments which I put down were intended to meet the points he had raised. But I gather that the matter has been discussed to-day, and the reason why I have not moved the Amendments is that I understand that he would rather that the Amendments were not moved to-day but that we consider the matter between this stage of the Bill and the next.
§ LORD PARKER OF WADDINGTON
I am grateful to the noble and learned Lord who sits on the Woolsack for considering the point that I raised on Second Reading. I am gravely concerned with subsection (3), because I think that in many ways (though I hesitate to say 102 this) it is the most important provision in the whole Bill. We know that magistrates deal with some 97 or 98 per cent, of all the crime in the country. What is sometimes forgotten is that over 80 per cent, of indictable offences are dealt with by those magistrates. I venture to think that they simply could not function without the help of the justices' clerks. The justices' clerk is in many ways the most important person in the whole set-up of the administration of justice. Why I am worried about Clause 5(3) is that it is stated to be a declaration of the functions of the justices' clerk. True, it is said to be inclusive. It is said to include advice on law. I should have thought that one thing was certain in our administration of justice—no one has doubted it: that the justices' clerk can advise on law. The question really is how much further can he go in his advice.
We are functioning at the moment under a Direction given by the noble and learned Lord, Lord Goddard, my predecessor, which was given on November 16, 1953. He then stated:It is clear that they "—that is, the justices—may seek his advice on questions of law or mixed law and fact and also on questions regarding the practice and procedure of the court. The latter are indeed questions of law.I always hesitate to differ from the noble and learned Lord, Lord Goddard, but I venture to think that practice is not law. However, it is accepted that justices' clerks can advise on practice and procedure. Then Lord Goddard went on:They may, for instance, ask him for information of the sentences which have been imposed by their bench or by neighbouring benches in respect of similar offences to that which they are trying. It is indeed most desirable that penalties for such matters as obstruction by vehicles, lack of lights and other what may be called public order offences should have some degree of uniformity.Everything that Lord Goddard said in 1953 is abundantly true to-day, and it is, I venture to think, accepted law as a result of that Practice Direction that the justices' clerk can advise on law, on mixed law and fact, on practice, on procedure and on sentencing—not the sentence that should be given in the particular case under consideration, but the level of sentences throughout the 103 country, in neighbouring benches and what the bench itself has been doing. If Parliament declares—true, it is inclusive —that the functions of the justices' clerk include the giving of advice on law, it will, I think, inevitably be said by everybody that that has driven a coach-and-four through the Practice Direction; because the one thing that was settled was that the justices' clerk could advise on law. Yet Parliament has here thought fit to make a declaratory statement that that is so.
What of practice and procedure? What of mixed law and fact? What of sentencing? Honestly, I am terrified; because my whole object has been to get uniformity of sentencing, so far as it is possible. Why should not the justices' clerk be able to advise on what neighbouring benches are doing? He knows; the justices do not. Is there ever a question of law alone? Is it not always mixed law and fact, and so on?
Therefore I venture to say that this subsection is terrifying in its present form. I have considered very seriously whether to table an Amendment; but it would inevitably be very complicated. It would provide for mixed law and fact, practice, procedure and sentencing. And at the end I should have left out something. I wonder whether it is really necessary to have subsection (3) at all. Is it not better to leave it to the Direction of the Divisional Court?—certainly, as it stands at the moment: the Direction given by Lord Goddard? I am told that this was introduced at the request of the justices' clerks, to try to clear up any possible ambiguity. I think that if those concerned were to consult with the Justices' Clerks Society, and with the justices' clerks again, they would learn that they now realise that this subsection, so far from being in their favour, will be used as an argument against them, to limit their powers in the future merely to questions of law. Therefore, I would ask the noble and learned Lord on the Woolsack whether before the Report stage he would consider again—if necessary with the justices' clerks—whether subsection (3) is needed at all.
§ 7.40 p.m.
§ VISCOUNT DILHORNE
I should like to say a word in support—I will make it 104 as short as I can—of what the noble and learned Lord the Lord Chief Justice has said. When we reach the Report stage, the question will be whether this subsection should remain in the Bill. I hope that the noble and learned Lord the Lord Chancellor will have discussions before then, because in the light of what my noble and learned friend has said I feel very disposed to put down an Amendment to leave out this subsection entirely. As the noble and learned Lord the Lord Chancellor pointed out, it is purely declaratory, and unfortunately it is only partially declaratory of the present position. I do not believe that it serves any useful purpose to include the subsection in the Bill. In fact, I think that it could be very harmful.
Although I listened carefully to what the noble and learned Lord the Lord Chancellor said, I am still puzzled as to what precisely the subsection is meant to do. The declaration is limited toadvice on questions of law arising in connection with the discharge out of sessions of their or his functions as justices…That must mean, I should have thought, outside the sessions at which the justices sit. I think the noble and learned Lord the Lord Chancellor referred to quarter sessions, but it seems to me that this can be directed not to quarter sessions but to petty sessions. Then you get the slightly confusing element:including questions arising when the clerk is not personally attending on the justices or justice…That again must mean questions arising out of court. Why is it necessary to have that? The clerk will be personally attending on them when they are sitting in the magistrates' court. If it is quarter sessions, surely it will be the clerk of the peace and not the justices' clerk. Therefore, I ask the noble and learned Lord the Lord Chancellor to look at this again, and I hope that before the next stage of the Bill, unless the arguments for its inclusion are more cogent than has so far appeared, he may consider then that it is better to leave it to the Practice Direction which I do not believe causes any difficulty or doubt at all.
THE LORD CHANCELLOR
I will certainly consider this point. I have no personal views about this clause at all. As I understood it, there was lack of 105 uniformity in the country, and the justices' clerks wanted to get something clear about what was the position so that they would know where they were?—and I dare say the justices did, too. No point was, I think, raised on Second Reading, except that the noble and learned Lord, Lord Parker of Wadding-ton, took some point on the wording. The Amendments were put down with a view to meeting that point. But I will certainly consider how far the clause is really necessary, or, if it is to remain, what form it should take.
I do not wish to be thought to be saying something on which I am giving a considered view, because the point had not occurred to me before, but after what the noble and learned Lord has said, I am not sure where we get to if a clerk is to be entitled to say in a particular case, "Every other bench would give this man twice what you are suggesting that you should give him." If that is not interfering on sentence—at any rate, it is quite a different thing for him to say to the bench as a whole, or to the chairman, "You know, I think that in this or that class of case we are getting a bit out of line with other benches". But if you are once going to have a clerk called in by the bench, in effect, to say, "This is what we are thinking of doing on sentence; now please, teacher, do you agree?", I do not think that would be a very good thing.
§ LORD PARKER OF WADDINGTON
If the noble and learned Lord will allow me to intervene, may I say that the Practice Direction to which I referred was issued by the noble and learned Lord, Lord Goddard, after consultation with the Lord Chancellor of the day, and I am sure it was never thought that the magistrates' clerk should be entitled to say, "In this case you must give so-and-so because other benches are doing that". That is a very different thing from asking advice, and from saying, "What are the magistrates of the county in general doing?", on whatever it may be—parking offences, obstruction, and so on. That was all it was intended to cover, and I 106 should have thought that it could be left to the good sense of the Divisional Court to give a Direction as the noble and learned Lord, Lord Goddard, did, to control magistrates' clerks, and yet allow justices to get the advantage of their advice.
THE LORD CHANCELLOR
Yes. If it is possible for a Divisional Court to put that into words, rightly, ought not it to be possible for Parliament to put it into words, rightly?
§ VISCOUNT DILHORNE
If I may say so, it certainly should. But if the words are not adequate when uttered by the Divisional Court, they are more easily amended than the words in an Act of Parliament. May I also put this to the noble and learned Lord in relatian to the example which he gave? It is, of course, one thing for the clerk to volunteer, "The sentence you propose to give is half what the other courts would give for that offence"; or to volunteer, "The sentence you propose to give is double what the other courts would give". But, surely, if the administration of justice is going to be right, it ought to be open to the chairman to ask, "What is the scale of punishment for this class of offence imposed by adjoining benches?" I think that is all that is wanted. I know that in some counties a scale has been drawn up. I believe that unless there is to be a real advantage from enacting this, it would be much better to leave it to the Practice Direction. I do not want to put down an Amendment to leave out this subsection at the next stage. If the noble and learned Lord the Lord Chancellor feels that it should be left out, I would much rather that he did it. Perhaps he could give some indication before that time comes; and, of course, one would be only too willing to discuss this with him if that would help.
§ Clause 5 agreed to.
§ Remaining clauses agreed to.
§ Schedules agreed to.
§ House resumed: Bill reported with the Amendments.