HL Deb 17 December 1970 vol 313 cc1554-600

4.37 p.m.

Report stage resumed.

THE LORD CHANCELLOR moved Amendment No. 8: Page 8, line 42, leave out ("in any place where the Crown Court sits which is specified in the direction")

The noble and learned Lord said: My Lords, as a result of what took place prior to that welcome interruption, I take it that Amendments No. 6, 6A, 6B and 7 are not moved. It now falls to me to propose my own Amendments Nos. 8 and 9.


My Lords, on the subject of manuscript Amendment No 6A, which stands in my name, it is a procedural accident that it is there at all, because it was originally an Amendment to Lord Tangley's Amendment, which also was associated with my name, and I was informed on putting it down that one could not move an Amendment to one's own Amendment. Accordingly there is no intention to have a substantive Amendment. But I wonder whether I might seize the opportunity, without remotely wishing to introduce a discordant note into what I sense is going to be a highly amiable discussion on previously controversial points—


My Lords, as a matter of procedure, might I know what we are doing? There is nothing about a manuscript Amendment here. The first reference that I heard to a manuscript Amendment was from the noble Lord, Lord Shepherd.


No; from the noble and learned Lord on the Woolsack.


He said that there might be one later.


My Lords, if we can disentagle ourselves from what has rightly been called a maze, and if the noble Lord, Lord Goodman, will allow a suggestion, it may be as well if I move my Amendment. He can then make whatever remarks are appropriate on it and be wholly in order.

I want to make only two remarks about Amendment No. 8, which is coupled with No. 9, the contents of which I have already fully explained in the previous debate. First of all, I am extremely sorry to see the raised hackles which accompanied my reference to "demarcation dispute". I am afraid I was expecting them. But if the noble Lord, Lord Tangley, could have seen the faces on the Labour Benches, as well as the Cross-Benches, from the distance of the remote place on which he sits, I think he would have seen that the shaft went home. I did not actually say that this was a demarcation dispute; I said merely that it had some of the characteristics of one. I was delicately hinting to both learned professions that they must make better use of joint negotiating machinery than they have done in the past; and they must keep in close touch with the Lord Chancellor's Office if they want things to move smoothly and redound to the prestige and distinction of the profession to which they are both related. If they want any advice, I am sure that they can get some from the T.U.C.

The second thing I want to say is this. Again with great deference to what the noble Lord, Lord Tangley, said, quite obviously I have the power, if my Amendment is passed, to operate (to use the phrase used on the occasion of the gracious Speech) by my "certain knowledge and mere motion". But it is an extremely incautious thing for a Minister responsible to Parliament to do. I shall most certainly receive a number of representations from the Bar Council. I have already received a long document from the Criminal Bar Association (I think it is called), the association of practitioners at the Criminal Bar. I agree with the noble Lord, Lord Tangley, that the public interest, in the sense that I tried to describe it, has to predominate. But who knows about these difficulties? The answer is: the two branches of the profession. The Lord Chancellor, with the best will in the world, does not go round the courts on the circuits. Of course he is informed by the Judiciary of what goes on. Of course he is in touch with the registrars of county courts, and the appropriate officers of the quarter sessions courts—or Crown Courts, as they will become. But he looks to the two branches of the profession to give him information, and not to assume that he has it.

If this is going through, and is going to work, I should expect to receive full information from all the persons who can give it to me. It is futile to expect me to say, and idle to say, simply because my noble and learned friend Lord Dilhorne and the noble and learned Lord the Lord Chief Justice have made speeches in this House—to which I have already told them I will give the weightiest consideration, because they operate in a decisive way upon the course of these discussions—that I must just pull a lever and operate my powers without considering what anybody has to say—


My Lords, will the noble and learned Lord the Lord Chancellor give way for a moment? I never suggested that he would act without consulting others. The phrase under question was, "on an application". I am sure that the noble and learned Lord the Lord Chancellor, on any proposal that comes forward, will take the views of both sides of the profession. He should not say that it is idle for them to suggest, if by "them" he is referring to me and anybody else, because I never suggested that he did it of his own motion.


My Lords, I did not intend to refer to my noble and learned friend at all; I was referring, to the complaint that was made by the noble Lord, Lord Tangley, of my earlier speech. It is not sensible to say that I must operate entirely of my own motion just because two of my noble and learned friends have made important and weighty speeches in this House. I expect to be informed by both branches of the profession and, without reproaching them in any way, I hope to be informed by them, even better than I have been informed in the past, of their needs and complaints. I hope that the noble Lord, Lord Tangley, will not regard that as in any way a reproach or criticism of anybody. I feel that these things do not advance the public good and that the proper use of channels of communication is one of the lessons that we all ought to learn from what has taken place. I beg to move.

4.44 p.m.


My Lords, I said a moment ago that the last thing I want to do is to introduce any discordant note into what I hope is going to be a highly amicable atmosphere this afternoon. I should like to make some observations. First, I am not as horrified by the reference to a "demarcation dispute" as are some of my colleagues. In a demarcation dispute I have always found that one side is also on the side of the public. If I may venture to say so, I believe that to be the situation here, if you care to regard this as a demarcation dispute.

I have listened with great attention to the statement which the Lord Chancellor was making; and after I had listened to it my first impression was, what a superb advocate he is! I was carried away wholly by it, until at the end I asked myself what he had said. I then arrived at the conclusion that he did not appear to have said anything that I could identify as amounting to the remotest pledge or promise. But I have total confidence in the integrity of the noble and learned Lord the Lord Chancellor. If he gives us an assurance, then that is good enough for me.

There are some of the younger members of the Law Society—and even some members of its Council—who are acutely anxious about the position. I should like on their behalf to say that the sooner the noble and learned Lord the Lord Chancellor can indicate his intentions in this matter and, particularly, fulfil the assurance he gave when he said that his Amendment would give in this situation as much as Lord Tangley's Amendment, or more; and the sooner he can confirm the reality of that situation then, from the public point of view, the better.

He has made references to what appears from his point of view to be the rather unhappy situation when a difference of opinion between two sections of a great profession is publicised. May I venture to say that I do not accept this? If the matter is referred to the public in moderate and courteous terms this can be nothing but good. I do not think these matters are best dealt with by discussions between the profession themselves behind closed doors.

I am sure he will not take it amiss if I also say I hope that, in listening to the representations that are going to be made to him by the solicitors and the Bar, he will make available to each side the arguments of the other. I hope he will not regard this next comment of mine as remotely unfriendly. I have noticed that both sides appear to be persuaded quite often by extraordinary arguments. It will be highly desirable that each side should know what the other side is saying on this matter. I do not think it would be appropriate to say any more than this. For my part I am happy to withdraw this Amendment and to rely on what I take to be the good will of his statement rather than the absence of positive assurances.


My Lords, may I just say, as I think I may do by way of reply, that I am extremely grateful to noble Lords about this? I have tried to do my best to achieve a just solution in the public interest. It is inevitable, as the noble Lord, Lord Goodman, pointed out, that if you have only heard one side—which is virtually the position—you cannot make an absolute promise to that side. I have given as strong an indication as I thought it appropriate to do as to the way my mind is likely to work in the absence of arguments to the contrary. I know, as I said in my opening remarks, that I found the Bar resentful and the solicitors suspicious. It is a great mistake to underestimate the depth of that resentment or the depth of those suspicions. They can be overcome only over a period of time and by mutual co-operation and trust.

One of the people I hope that both professions will trust is the Lord Chancellor. By that I mean rather the corporation sole than the person who happens to sit physically on the Woolsack at any given time. I hope that the Lord Chancellor's Office will continue to be, as it has mainly been, an object of trust, by which I mean not merely the occupant of the Woolsack for the time being, but the whole staff with which he co-operates. I hope that by experience even the younger members of the solicitors' profession will realise that they will get a fair crack of the whip and a fairer crack the more they communicate both with their opposite numbers at the Bar—because there are young members of the Bar trying to make their living, too—and with the Lord Chancellor's Office, if they think that things are going wrong. I should not like in any way to diminish my gratitude for the kindly references to myself which the noble Lord made in the course of his remarks. I thank him very much.

On Question, Amendment agreed to.

THE LORD CHANCELLOR: My Lords, I beg to move Amendment No. 9.

Amendment moved— Page 9, line 1, leave out ("In exercising his powers under this section") and insert— A direction under this section may have effect as respects all places where the Crown Court sits, or as respects a specified area, region or circuit, or as respects one or more specified places where the Crown Court sits. (3) In considering whether to exercise his powers under this section as respects any one or more places where the Crown Court sit."—(The Lord Chancellor.)

On Question, Amendment agreed to.


My Lords, Amendments Nos. 10 and 11 were discussed with Amendments Nos. 4 and 7. Amendment No. 10A is a manuscript Amendment put down by the noble Lord, Lord Goodman, which perhaps he will be good enough to read out to the House.

LORD GOODMAN moved Amendment No. 10A: Page 9, line 5, leave out ("special") and at end insert ("affecting the public interest".)

The noble Lord said: My Lords, the purpose of Amendment No. 10A was to give the noble and learned Lord the Lord Chancellor the opportunity of making his decisions in this matter on the fullest possible basis. As the clause was originally worded he was entitled to take into regard the shortage of barristers, the previous availability of audience to solicitors and "any other special circumstances". It was felt, purely as a drafting matter, that that might restrict the total freedom of his discretion. Hence I have suggested in this Amendment that for "special" circumstances there should be substituted circumstances "affecting the public interest", or such other wording as equates to the same thing. I gather from what the noble and learned Lord the Lord Chancellor has said that it is his intention to accept that Amendment which, if I may say so, will be found to be greatly encouraging to those people who still entertain certain doubts on the matter.


My Lords, as I indicated, I am very happy to accept this Amendment, and I hope your Lordships—and particularly the noble Lord, Lord Shepherd, who, quite rightly, does not like manuscript Amendments—will take it from me that this is virtually a drafting Amendment and an improvement to the Bill.

On Question, Amendment agreed to.

Clause 16 [Appointment of Circuit Judges]:

4.50 p.m.

LORD GOODMAN had given Notice of his intention to move Amendment No. 12: Page 12, line 22, after ("barrister") insert ("or solicitor").

The noble Lord said: My Lords, so far as Amendment No. 12 is concerned, I believe that what is involved will much depend on certain observations that may fall from your Lordships. So perhaps I might invite your Lordships to comment before we decide on the question of withdrawing it.


My Lords, I think the noble Lord, Lord Goodman, is right. It is really my Amendment No. 13 which raises the issue which the noble Lord wants to discuss. I take it, therefore, that the noble Lord does not move his Amendment No. 12.

THE LORD CHANCELLOR moved Amendment No. 13: Page 12, line 22, at end add ("or a Recorder who has held that office for at least rive years").

The noble and learned Lord said: My Lords, I now come to move my Amendment, No. 13. The significance of this Amendment can only be seen if your Lordships moved on to the Amendment standing in the names of, I think, the noble Lords, Lord Tangley, Lord Goodman and Lord Annan, on Clause 21, because they really ought to be considered together. Although my Amendment is not strictly a paving Amendment, it ought to be treated as one for the purposes of this discussion.

These Amendments together put forward my own proposed solution to the second of the two controversies between the two branches of the profession which have been ventilated in the course of dealing with the Bill. The first, the extent of the right of audience, has now been fully ventilated in our previous discussions. The second is concerned with eligibility to the Circuit Bench. This controversy was discussed on Second Reading, but in the light of what has taken place on Clause 12 it was not proceeded with on Committee. The Amendment which I have put down is again put down on my own authority, but I have only put it down in consequence of and after the discussions which have taken place in the interval between Committee and Report.

By a paradox—because it is a paradox, which I do not wholly understand—the main controversy in public has been about this second matter. I do not know myself why this should have been the case. My own opinion, which I did not attempt to conceal from the House on Second Reading, is that the question relating to rights of audience is of greater immediate practical importance and logically a question which has to be discussed first, as it has already been discussed to-day. Each problem has to be seen in the light of the other and each needs some separate discussion. But in one respect relevant to this Amendment the problems are different. The right of audience is now discretionary in the Lord Chancellor as the result of what we have done to Clause 12. It never has been so discretionary before. The right of appointment to the Bench, which belongs to the Crown, has always been discretionary and has always been exercised on the advice of the Lord Chancellor, or in the case of the highest Judicial offices, the Prime Minister. That will still be the case in what ever form Clause 16 emerges from this House.

What we are now discussing are the legal qualifications for eligibility to the Circuit Bench. The qualification for eligibility to the county court bench—its predecessor—has always been seven years' practice at the Bar. The higher standing of the new Circuit judges is reflected in the more stringent requirement of 10 years' practice contained in the present text of the Bill. I do not suppose that the particular qualification will necessarily make a great deal of difference to actual appointments. If I may give an example rather nearer home, I do not think that any legal qualification is necessary to be Lord Chancellor. Notoriously, bishops who have never been lawyers, and deans who have never been lawyers, have been sitting on the Woolsack in the past—I think the last was Lord Keeper Williams in the 17th century—and sometimes I think even laymen have held this position. But I suppose something ought to be written into this Bill as it has been in previous County Courts Acts and in Judicature Acts.

As I said on Second Reading, my original principle in framing the Bill was to maintain the status quo with matters not essential to the radical reforms which the Bill proposes. But as the debate proceeded I became more and more conscious that I had been guilty of at least one inconsistency which orginally I had thought of as immaterial, which I now do not think is immaterial and which I now seek to put right. As matters stand—that is, before the passage of this Bill—solicitors can be qualified and paid chairmen and deputy chairmen of quarter sessions, though they cannot be recorders of boroughs. They cannot, unless the Bill is amended, be the new part-time judges christened "Recorders" by Clause 21. Although these judges are christened Recorders, they are really something quite different. It could therefore be reasonably argued that I had not maintained the status quo but actually moved it against the solicitors, and to their detriment.

I therefore suggested to the meeting that I held that, at least in the interests of consistency, I ought to offer Recorder-ships to the solicitors' profession. It was then pointed out to me by one of the representatives of the Law Society that, if I did so, I would have the opportunity of opening up the Circuit Bench itself to solicitors, without any of the dangers and disadvantages which I had foreseen on Second Reading and without the necessity of the solicitor transferring to the Bar with all the potential insecurity which such a transfer would involve. I would then be able to appoint mature solicitors who had had experience with juries and had proved themselves in a judicial capacity. I found this argument attractive, and I hope the House will find it attractive, too, for it is the genesis of the present Amendments. If these Amendments are accepted, solicitors will be eligible for the Recordership and, after five years of part-time judicial experience, they will be eligible for full whole-time and pensionable membership of the Circuit Bench.

For the reasons indicated on Second Reading, I do not expect a long queue of suitable applicants, but I realise that more than practical advantage is at stake here. As has been indicated more than once, solicitors are sensitive to what they regard as partly a slur upon the standing of their profession. I do not myself feel that this feeling is justified. The solicitors' profession has long since risen to the ranks of the top professional qualifications, equal to any other in the land—the Bar, the surgeon or the Prelate—in the estimation of the public. But the matter has significance, and if there is a supply of suitable candidates to be got by this road I shall be only too happy to avail myself of it. I still think that if in early life a solicitor harbours judicial ambitions he would probably be wise to transfer to the Bar, just as, I may say, one of my most distinguished pupils, realising that advice and not advocacy was his forte, transferred to the solicitors' branch of the profession and is now a senior partner in one of the most eminent of London firms of solicitors, and, on the appointment of my predecessor, represents his profession on some of the most important legal committees in the land.

But, my Lords, I can put forward these Amendments as genuine improvements to the Bill, and if they add to the harmony of the legal profession they will do more than serve their purpose in the short term. If, in addition, they serve to create a new supply of suitable judges to an already pre-eminently distinguished Bench, they will also justify themselves as a permanent addition in our legal system. My Lords, I beg to move.


My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for moving this Amendment and I trust that the House will accept it. I daresay some solicitors will say that this is a back-door way of entry, but I have been long enough in your Lordships' House now to have learned the lesson that when you can get the substance you should not go chasing shadows. Here is a way in which solicitors can become eligible for appointment as Circuit judges. It is a way in which probably, if my Amendment had been accepted, one would have expected the noble and learned Lord the Lord Chancellor to proceed in the first instance in order to find out who the candidates were and whether they were willing, and I hope very much that acceptance of this Amendment will go a long way towards assuaging certain of the difficult feelings to which the noble and learned Lord on the Woolsack referred in the earlier part of the debate.

5.1 p.m.


My Lords, in discussing this Amendment it is obviously convenient also to discuss Amendment No. 15 which, associated with it, will produce the result the noble and learned Lord on the Woolsack desires to effect. The first thing I wish to say is that on any compromise one must not expect to achieve all that one set out to do. The effect of a compromise is that part of what you want you do not get; but so far as this compromise is concerned I am satisfied with it. I think it meets both points of view: it allays the groundless anxieties of a number of people who think that solicitors would only be qualified to carry out high judicial office if they had had a probationary period as recorders. I am only too pleased that that should take place, and I believe that after a while the quality of the solicitors who are appointed will amply demonstrate the wisdom of the course that the noble and learned Lord the Lord Chancellor has adopted.

I will also say this in relation to the Lord Chancellor: I do not believe that making this compromise was easy for him, and in my view it is greatly to his credit that he has decided that in the interests of harmony and of maintaining a proper relationship between the two professions he is prepared to make a concession about which I know he has had grave personal misgivings. On that account I thank him; and I thank him not only on behalf of solicitors but also on behalf of the general public, whose interests I believe will be served in this way.

There are one or two other observations which I think it is pertinent to make. The extent to which the Amendment will be of value to the public and to the administration of justice depends upon the use that the noble and learned Lord the Lord Chancellor makes of it. I hope he will not take it amiss if I remind him of one or two things that he said during the period of high controversy and that he may perhaps, like myself, regard as more appropriate for immurement for all time. He said that he wondered why solicitors regarded themselves as eligible for appointment, since they had always been eligible for appointment as chairmen of quarter sessions and as deputy chairmen of quarter sessions. As only two of them had ever been appointed he took this as an argument that they were not specialty qualified. I venture to think that that again is rather a remarkable argument: only two of them were appointed because only two were invited. In fact, what he was saying is that because they had not been appointed, therefore they were ineligible.

I believe I am right in saying that not a single solicitor Member of this House—and there are some extremely distinguished solicitors in your Lordships' House—has ever been invited to be either a chairman or a deputy chairman of quarter sessions. I make that observation not in order to revive controversy but because I think it has high relevance to the question of who is appointed in the future. I think he must make himself acquainted with the field that is available, and I hope he will bear in mind that the Lord Chancellor is—and again I do not say this critically; it is almost inevitable—nearly always a Metropolitan animal. Much of what has been said about the solicitor's profession of which a great deal is true, relates exclusively to London and not to the profession throughout the country. An immense amount of advocacy is carried out by solicitors all over the country. If one reviews the situation since undefended divorce became triable in county courts one finds, so I am told, that much more than 50 per cent. of all undefended divorce cases are now conducted by solicitors, and obviously conducted satisfactorily.

I believe the Lord Chancellor will make available to himself a very rich human pool which will greatly improve the quality of the Judiciary because it will make available a number of people who are not only learned in the law, not only learned in advocacy, but people who, on the whole, have much better contacts with ordinary human beings, because the nature of barristerial activities often debars that. Although, on the face of it, this is only a slight change, in my view it is an important one that will lead to great benefits.

The other thing I should like to say is this. I abstained, and continue to abstain, from any references to fusion, because that was not the issue in this case. This proposal is not to be taken as remotely any advance towards fusion. I do not believe that this change is an advance towards fusion; and since it would be unfair that anyone should have regarded the intention to make these proposals in the light of possible fusion, I wish to say emphatically that it was never my intention to advance the cause of fusion by making the proposals that I made in this matter.

Certain references were made that I think it would be wrong to leave on the record without some comment. The noble and learned Lord, Lord Gardiner, in the course of a speech made a number of observations as to the possible awful consequences that might ensue as a result of this change and other changes connected with increasing the area of advocacy by solicitors. I do not know whether the House was impressed by those observations. It is a sad fact that a man of his outstanding distinction should have that particular blind spot. I would only say to the House that if the awful consequences that he apprehended come about, then I and my colleagues here to-day who have advocated these changes will have a most awful burden of responsibility on our shoulders. But I do not believe that the Bench or the Bar or solicitors will be debauched as a result of these changes; I do not believe that we shall see witnesses suborned by judges all over the place. Those apprehensions are totally fanciful.

I believe that what has been brought about to-day will effect a great improvement, and particularly in the general atmosphere between the two professions. I confidently believe that one day—it may be 100 years hence, it may be 50 years hence, it may be 20 years hence—there will be a review of the whole professional relationship in this country. I hope that will come speedily. I do not think any solicitor here to-day is very strongly associated with me, although I believe my noble friend Lord Fletcher has expressed the view that on the whole his bias is towards change. Whether or not that comes about, it is imperative that until it does the two professions should operate in total harmony. In so far as some discord, some differences of view, have been introduced by the discussions which have taken place, I hope the attitude of the noble and learned Lord the Lord Chancellor, and the ready reception of his proposals by solicitors, will go a long way to put it right.


My Lords, I should like to say a word in thanking the noble and learned Lord the Lord Chancellor for what I regard as a very statesmanlike suggestion on his part. I do this particularly because for years past, as possibly he will remember, when he was here in another capacity I tried to get his predecessors to accept the idea of solicitors becoming judges of the county court. I failed, although I had some support from eminent judges who are members of your Lordships' House. So it is particularly satisfactory to me that at this stage the Lord Chancellor should have taken this step.

So far as I am concerned, I am not an applicant and I shall not trouble him with my qualifications, such as they are, but I want to reinforce the noble Lord, Lord Goodman, in two respects. First, I think, as he says, that the Lord Chancellor, because of his position and previous experience, is probably more concerned with the London scene than he is with the scene outside London. After all, the man who becomes a judge inevitably has been a silk and therefore has practised under the Lord Chancellor's eye, so to speak, in London. So far as my own country, Wales, is concerned, I am sure we could put up a number of distinguished solicitors who in time would be eligible for appointment as recorders. Therefore perhaps his net could be extended a little more widely—I mean not only his net so far as the "fish" are concerned (that is, to catch possible solicitors as judges) but also his net to catch those who would advise the Lord Chancellor on who are eligible. Many of us know such people. Take Wales, for example; it is quite a small country and we know practically everybody who is likely to be in this particular field. I am certain that several of us could, without any difficulty, put up names to him.

The other point on which I wanted to support the noble Lord, Lord Goodman, was that regarding fusion. I am a fused animal in a sense, because I am a solicitors in this country and I am still a member of two Bars in Commonwealth countries, Malaysia and Nigeria, where the professions are fused. For many years I practised in what was then the Straits Settlements, now part of Malaysia, as barrister and solicitor. In fact so far as I was concerned, although I am a solicitor in this country, I practised as a barrister in the Straits Settlements. By a curious chance, the leading advocates at the Straits Settlements Bar, who also generally appeared in the States up country, were solicitors, not barristers. There is a reason for that which I need not go into, but it disproves any suggestion that solicitors do not make good advocates. As a result, many of the judges had been solicitors, because they were appointed from the local Bars.

I should like it to go on the Record that I do not think the arguments of the noble and learned Lord, Lord Gardiner, had any great weight, because quite frankly they had not. As I say, I practised for years in a fused profession, and although there are difficulties about fusion the noble and learned Lord did not mention any of them—and those he did mention were not difficulties. On the whole, I think that in time to come there will be a fused profession in this country. You will still want specialists, of course.

I gave evidence myself before the Ormrod Committee, which I hope will report fairly soon—I have not heard anything about it lately. I suggested one system of legal education and examinations, after which you would have one profession, as in the medical profession, but some of them would become specialists. That in fact is what happened to a large extent in Malaya. And if you wanted to take in a man from another firm, if it was necessary, you did so. Your clients never went to him afterwards.

I remember that in one important case I was acting as junior counsel in a case in which we sued the Government—you could sue the Government in Malaya long before you could here. We sued them because the "Rajputana" coming into Penang had run down a junk. We sued the Government in tort. I appeared in the High Court. When we went to the Court of Appeal we took in as leading counsel a senior member of another firm in the same place. So there is no difficulty about that. We did not think that the steamship companies who were our clients would ever go to him, nor did they; there was no jealousy on that account at all. So I think that we need not be too worried about the allegations or criticisms of those who have never experienced this particular form of legal organisation. I am quite certain that in time to come some such form will arise in this country.

With those few words, I should like once again to thank the noble and learned Lord the Lord Chancellor, and I hope that what he is now doing will have great success in, as he put it, providing the flexibility which is so needed in our legal administration in this country.


My Lords, may I say a word in reference to what the noble Lord, Lord Ogmore, said? I had an experience in America—


My Lords, are we discussing fusion? Fusion is not the subject of an Amendment.


My Lords, if your Lordships do not want me to speak, I will not, but I was going to say that I do not agree with the noble Lord, Lord Ogmore. This Amendment is all right, but I hope that it does not end in fusion, because I think that would be a bad thing for this country. I will not give my reasons, as your Lordships apparently do not want to hear them, but it was an experience that certainly impressed me a great deal. If your Lordships do not want to hear it, I will not give it.


My Lords, as in the case of the previous group of Amendments, while not very happy about these Amendments, I hope that the House will accept the proposal put forward by the noble and learned Lord the Lord Chancellor. If I may explain why I am not happy about them, it is simply for this reason. With great respect to the noble and learned Viscount, I think it is quite right to raise the question of fusion, because I am passionately convinced that the people of this country have an inestimable advantage in having a divided legal profession. I will not repeat what I said in Committee, or the graphic picture painted by the Chief Justice of the Supreme Court of the United States about the appalling disadvantages of their fused system.

But you cannot have a divided profession without a dividing line. The Bar accept that they can have no dealings whatever direct with the client; that they must not see the client unless the solicitor is present; that they cannot make any financial arrangements with the client; they may not, even if they are clerk to a local authority, do any conveyancing, which may effectively stop them being so appointed. They may not see any witness except the client and expert witnesses. They may not become a director of their client companies. On the other side of the dividing line, there is nothing except rights of audience in the higher courts and eligibility for High Court and Crown Court judgeships—nothing else at all. For some years now that side of the line has been gradually moving and disappearing.

What troubles me is that unless we bear this carefully in mind we may find that we have fusion without the advantages or disadvantages ever being discussed. We must be quite clear in our minds that if High Court advocacy and eligibility for High Court judgeships go, there is no possible object whatever in anybody being a barrister. All lawyers would be solicitors and could do everything. I am sorry to stand here, in a sense, wearing the mantle of Cassandra, but I think it is a point which is vital to the future of our legal profession, and I hope that it will always be borne in mind on this sort of question.


My Lords, I am not sufficiently familiar with the rules of your Lordships' House to know whether it is in order, as the noble and learned Viscount, Lord Dilhorne, questioned, to discuss fusion, but I observe that both the noble Lord, Lord Goodman, and my noble and learned friend Lord Gardiner have referred to the subject of fusion. That is not the reason why I rose. I really rose to support some of the observations of my noble friend Lord Goodman, and I do so because the main question we are discussing on these Amendments is one to which I referred in the Second Reading debate. Therefore, I should like to take the opportunity of saying how much I welcome the corn-promise which has been arrived at as a result of the discussions which have taken place since Second Reading.

I regard the solution which the noble and learned Lord on the Woolsack has proposed to the House as being, if I may say so with respect, of eminent wisdom and common sense. I think it gives the solicitors' branch of the profession all the satisfaction that they require, both as regards the status of the profession, and as providing an adequate opportunity for those solicitors who are eligible and qualified by their attainments and experience for judicial office to be appointed to Circuit judgeships. And I observe that it goes even further, because by reason of the operation of Clause 23 of the Bill, as I understand it once a person has been appointed a Circuit judge he will be eligible to act, on the request of the Lord Chancellor, as a judge of the High Court, which I think is something which will be appreciated. For myself, if I may say so parenthetically—I am sure my noble friend Lord Goodman will agree, but I am sure some of the noble and learned Law Lords sitting here will not—I look forward to the day when a solicitor who happens to be a Privy Counsellor can also be qualified to sit on a Judicial Committee of the Privy Council.

On the question of fusion, because of the remarks that have fallen from my noble friend Lord Gardiner, I am tempted to say that I thought his observations made it more necessary than ever that the Lord Chancellor should give serious consideration to the proposal, which was put forward by myself and a number of my colleagues who sat on the Evershed Committee some years ago, that the time is really ripe when a Commission—perhaps a Royal Commission, but at any rate some suitable Commission of Inquiry—should be set up to consider the whole question of the Judiciary. Then the noble and learned Lord, Lord Gardiner, could put his point of view, and others could put their point of view.

But it is no use blinking the fact that there is a substantial body of opinion in in this country which thinks that, however admirable our present system of the legal profession, divided as it is, may be, nevertheless there could be advantages in the public interest if there were some change in the present situation. That does not mean necessarily in the direction of fusion, but perhaps in the direction of a modification of the present rigidity and in the interests of providing more flexibility, and with the object of removing what in a great number of cases must be the inconvenience and undue expense to the public of being compelled, without any necessary advantages to the clients, to consult and pay for the advice of both a solicitor and a barrister, when they could equally well be served without having to submit to that necessity. Therefore, without expressing any final questions or views on the subject, I would repeat the plea that I have made on a number of previous occasions, that this is a subject which is now overripe for discussion by some independent body, preferably constituted by a predominance of laity.


My Lords, I should like to say that I, for one, think that the proposals of the noble and learned Lord the Lord Chancellor are reasonable and right, and give him the measure of flexibility that is desirable. The reason why I interrupted the noble Viscount, Lord Massereene and Ferrard, was because we really are not discussing fusion in this Amendment; we are on the Report stage of a Bill, and we are discussing whether solicitors can be appointed as recorders. When the time comes to discuss fusion, as has been raised by the noble Lord, Lord Fletcher, there will be those who take and can express powerful arguments against it, in what they believe to be the public interest.

I am rather sorry that fusion has been introduced into this debate, because it is a very controversial subject. We were proceeding with great harmony, and I was hoping for increased harmony between both sides of the profession. I well remember the reaction years ago, to the practice that then existed, of solicitors, of non-practising barristers in local government services doing conveyancing. I think the dispute was then called a demarcation dispute. I cannot remember. But I do remember that the Bar gave way upon that point. I think it would be much better rather than discussing the difficult question of fusion here to-day, to let that rest and to get on with this Bill.

5.24 p.m.


My Lords, I do not want to detain your Lordships, but I should like to say two or three things in answer to what I seem to remember was said by the noble Lord, Lord Goodman. In the first place, I should like to thank all noble Lords for the various kindly remarks made about myself. I have sincerely applied my mind to this problem, and I thought that this was the best way of achieving a just result. It was also based upon a logical principle which did not involve wider implications than those which I desired to raise. In particular, it did not, and I hope it will not be thought that it did, raise the question of fusion at all.

But I should like to say one thing about the earlier remarks of the noble Lord, Lord Goodman, without lifting the veil too much over the mystery of judicial appointments. Judicial appointments are probably, day-to-day, by far the most difficult work which a Lord Chancellor has to undertake, and probably the most responsible; because if you once get a bad judge you cannot get rid of him, and he can do an infinite amount of harm during quite a long judicial life, Therefore an enormous amount of expertise on the part of the Lord Chancellor's advisers takes place in selecting suitable judges. Of course, in principle—and the higher you go the easier in that sense it is—a Lord Chancellor knows the leading members of the Bar himself, most of them by their Christian names, often as fellow Benchers of his Inn; and those of them he does not know, he can very easily find out about owing to the very close discipline and fellowship which exists in the barristers' profession. If you once embark upon the course upon which I have embarked, even to the limited extent to which I have, that advantage disappears. Moreover, it is difficult to compare a solicitor with the kind of references a solicitor will have, with a barrister with the kind of references which will be available to him.

What I wanted to say to the noble Lord, Lord Goodman, and through the House to the solicitors' profession, was this. Of course in principle a Lord Chancellor can let out his fishing line into the sea, or he can hunt the coverts, or do whatever you do, to see whether he can find a suitable number of solicitors or barristers to be judges. Up to a point, in the higher reaches of the profession that is exactly what he does. He knows what he wants and he finds it, and he knows where to find it. If he wants a good patent lawyer, he knows where to go. But you would be surprised how many people ask, although I do not think that the noble and learned Lord, Lord Gardiner, would be a bit surprised.

If you are dealing with a wider range of applicants or potential talent for recorderships (which are the equivalent of chairmen or deputy chairmen of quarter sessions) then they must not assume that they will be noticed unless some responsible body brings their name to the attention of those who may be looking. When you are dealing with the Bar you are dealing with a profession of 2,500 people plus—2,584, and it is going up fairly fast. But when you are dealing with solicitors you are dealing with 20,000 plus, which is a different order of magnitude, and an altogether different problem of selection is involved.

Therefore, I say to these solicitors of this country who may contemplate an appointment of this kind that they must not necessarily assume that the Lord Chancellor will notice them unless they bring themselves, with a suitable series of references, preferably accompanied by a reference from a judge who has seen them work, to the attention of the Lord Chancellor's Department, and then investigations can be made. But to keep the kind of separate records about 20,000 people, on the scale which is now kept by the Lord Chancellor's Department about every barrister of ten years' call, is utterly out of the question. It presents practical difficulties, and I hope that the noble Lord will bear this in mind and bring it to the attention of those with whom he is in contact.

The last thing I wanted to do was to argue the question of fusion at all; but I must say that I agree with the noble and learned Lord, Lord Gardiner, about it. I believe that the difficulty about advocacy is that nobody can see the sleight of hand that it involves. You cannot see an efficient advocate at work unless you yourself are an efficient advocate. In fused professions there are many people who can win the confidence of lay clients by their qualities, which are no doubt most agreeable, but they waste a lot of time and money of their clients both in the courts and thereafter. Even if they win their case, they take about six times as long in doing it, and that costs everybody money.

The noble and learned Lord, Lord Gardiner, was greeted with derision by some Members of this House, when he said that, quite apart from the question of ethics and integrity, which are very real facets of the matter, an important American lawyer was quoted as saying that four judges in London did the work of 30 in New York, and that the figures for Germany were even more startling. The reason for that is because Bench and Bar have an expertise which no other country has. When the time comes to argue fusion, I hope that the House will not throw it away in a fit of enthusiasm, because I will not be on their side if they do. All I am saying is that I have done my best to solve this particular dispute, and I am very grateful for the way my efforts have been received.

On Question, Amendment agreed to.

Clause 19 [Pensions of Circuit judges]:

5.31 p.m.

VISCOUNT DILHORNE moved Amendment No. 14: Page 15, line 18, after ("of") insert ("the Lord Chancellor and").

The noble and learned Viscount said: My Lords, this is an Amendment which I moved on Committee and which had the support of the noble and learned Lord, Lord Gardiner. When one looks at Clause 18 of this Bill one sees that the Lord Chancellor may, with the consent of the Minister for the Civil Service, determine what salary shall be paid to a Circuit judge, and in subsection (5) that the judges will get such allowances as the Lord Chancellor may with the approval of the Minister for the Civil Service determine". Then in Clause 19, the Lord Chancellor may from time to time recommend to the Minister for the Civil Service … All that language is no doubt very carefully chosen.

However, one then sees in subsection (2) how the service is to be calculated. The point I raise is in connection with subsection (7), where it is said, The decision of the Minister for the Civil Service shall he final on any question arising with regard to—

  1. (a) the application of any of the provisions of this section to any person, or
  2. (b) the amount of any pension under this section, or
  3. (c) the reckoning of any service for the purpose of calculating such a pension."
So far as I can see, that is the only place where the Lord Chancellor is excluded. As I said in Committee, I feel it is wrong that the Lord Chancellor should be excluded. Therefore, I propose that subsection (7) should read, with the insertion of the words "the Lord Chancellor and": The decision of the Lord Chancellor and the Minister for the Civil Service shall be final on any question …

The noble and learned Lord, the Lord Chancellor (he did not describe it as "weighty pressure" but perhaps he might have done so) said: I think I must agree to consider this Amendment before Report. Then he said, …with the leave of the Committee I will take this back and consider it again before the Report stage."—[OFFICIAL REPORT, 3/12/1970; col. 737.] The noble and learned Lord has not tabled an Amendment to deal with the matter. I hope the pressure, plus the consideration, has been sufficient for him to be able to say that at this late stage and hour he will accept the Amendment without any further debate.

I think it is right that the Lord Chancellor, whom I described on the last occasion as the father of both professions—and then the noble Lord, Lord Mowbray and Stourton, rather astonishingly is reported in Hansard as having described the noble and learned Lord Chancellor as "a young father"—should certainly be a party to the final determination of this question, and it should not be left solely to the final decision of the Minister for the Civil Service. Unless the Lord Chancellor is a party to the decision, it seems to me that the line of distinction between the Executive and the Judiciary, which is well worth preserving, is going to get somewhat blurred. I beg to move.


My Lords, in spite of paternity and pressure, both of which I find agreeable on occasion, I must, I fear, disappoint my noble and learned friend. I have done what I promised to do, which was to take this proposal back and consult colleagues and advisers, but I am sorry to say that I still come up with the same answer. The Bill, as it stands, in both the branches the noble and learned Viscount referred to, preserves the status quo of the role of the Treasury. The Civil Service Department (which is not very happily named in some ways; it ought to be "Public Service Department") is the residuary legatee of the old functions of the Treasury as provided by the old Acts, the County Courts Act and so forth. The Bill simply perpetuates that. No new constitutional principle is involved.

The noble and learned Viscount's Amendment would be resisted on three broad arguments. I do not want to weary the House with them at any length at this hour. The first is that the Amendment is in fact contrary, in a sense, to the principle of collective Cabinet responsibility, because it is unthinkable, in the present machinery of government, that any decision of this kind could be taken without the concurrence of the Lord Chancellor. There would have to be consultation and concurrence in relation to the pensions of judges. The second argument is that the Amendment, if it were written into the Bill, could, at least in theory, produce deadlock. The noble and learned Viscount said nothing about what happens if the Lord Chancellor does not concur with the Civil Service Department. The third reason is, and I think it is a sound one, that it breaks with a precedent which has existed certainly for the past fifty years and has, so far as I know, never produced any difficulty.

I have reflected about this matter with as open a mind as I can summon to a subject in which I confess myself not particularly well versed. I have consulted with colleagues, and I have consulted between advisers, and the answer I come up with is an answer which is disappointing to my noble and learned friend. I am sorry to say this, but the answer is still what it was on Committee stage.


My Lords, that is an answer that we did not get on the Committee stage, because the noble and learned Lord merely said that he would look into the matter. I have listened with great care to what my noble and learned friend said. I thought his first two reasons were mutually contradictory. First of all, he seemed to argue that it was quite unnecessary to mention the Lord Chancellor because of the collective Cabinet responsibility which he would have with the Minister for the Civil Service. Then he put forward the other argument, that the Amendment did not resolve the difficulty, as the Minister for the Civil Service and the Lord Chancellor might disagree. What about collective responsibility in that case? The third argument is perhaps the best: that it has worked all right up until now and there is no reason why it will not work all right in the future By tabling this Amendment again, we have had the benefit of my noble and learned friend's cogitations. I certainly do not propose to press the Amendment at this time, but I am glad to hear that he will continue to exercise a beneficial influence on the Minister for the Civil Service. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 21 [Appointment of Recorders]:

5.39 p.m.

LORD GOODMAN moved Amendment No. 15: Page 16, line 20, after ("barrister") insert ("or solicitor")

The noble Lord said: My Lords, you need not be apprehensive that you are about to have a second speech from me. This is the Amendment that enables solicitors to become recorders and enables them thereafter, if they bring themselves sufficiently to the attention of the Lord Chancellor, after five years' service possibly to become judges. It is of course the crucial part of the agreement that has been reached. I beg to move.

On Question, Amendment agreed to.

Clause 24 [Temporary High Court and Circuit judges]:

5.40 p.m.

THE LORD CHANCELLOR moved Amendment No. 16: Page 17, line 43, leave out ("to do so") and insert ("as a temporary measure to make an appointment under this subsection")

The noble and learned Lord said: My Lords, this Amendment is intended to give effect to an undertaking which I gave to my noble and learned friend Lord Dilhorne at the Committee stage. He raised various points about the provision for temporary judges, and this Amendment is to bring out the purely temporary nature of their appointment. I have no doubt that they will probably be called "commissioners" in the same way as they have always been called "commissioners" in the past, just as the Old Bailey continues to be called the "Old Bailey" when for more than a hundred years it has been known as the "Central Criminal Court."

But I do not feel it appropriate to accept my noble and learned friend's suggestion that the word "commissioner" should be written into the Bill. I still think that you cannot have a commissioner unless you have a commission, and one of the main objects of the Bill is to destroy the commission. I realise that from one point of view I am being inconsistent about this. I made fun of the noble and learned Lord, Lord Gardiner, for complaining that the Common Serjeant was neither common nor a serjeant, but I think he has gone on so long and to upset him would cause so much trouble, that one can let that particular sleeping dog repose in such peace as his judicial appointment gives him. But I really do not think one should start by writing into the Bill a new set of solecisms and, therefore, I could not go so far as my noble and learned friend went on the Committee stage. But I hope that what I have said will show that I have given genuine consideration to what he said, and that I have tried to meet the difficulty which he feels. My Lords, I beg to move.


My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for going as far as he has gone, because to my mind this Amendment emphasises—and rightly emphasises—the temporary nature of the appointment. But the noble and learned Lord has really gone further than speaking to this Amendment. He has made his reply to an Amendment which is in my name, and which so far I have not moved, so that in a sense I am forewarned as to what he would say were I to move that Amendment. It might be to the convenience of the House if I said now what I would say if I were moving that Amendment, and then it may not prove necessary for rue to do so.

I think it is a pity, if no distinction is drawn in the description of High Court judges, if in future we have people who are permanent High Court judges and people who are temporary High Court judges, who will, if I understand correctly, at least when they are sitting judicially, all be referred to as High Court judges. In the court lists and in the papers, while they are sitting, they will all be High Court judges and, I imagine, so referred to. It is a pity if the present status and permanence of the High Court judges is in any way impaired. I shall not dilate upon that. I think the noble and learned Lord the Lord Chancellor knows that I have certain fears in that connection.

Therefore, I think it advisable and desirable that, if possible, some name should be given to those who are appointed to these temporary positions to act temporarily as High Court judges. Heretofore, they have always been referred to as "commissioners", which has been well recognised. Of course, that name derives from the fact that they were appointed under the Commission of Assize, and it is quite true that the Commission of Assize will go. But I do not think that that is really a valid argument for not giving them the name "commissioners". After all, under this Bill we are going to have recorders, although the recorders of boroughs are being abolished; and I must admit that I am entirely ignorant of what a recorder has ever recorded. So there is nothing so very anomalous.

I hope I am not treading on the toes of the noble and learned Lord, Lord Gardiner, by saying that the Common Serjeant is well recognised. There are no uncommon Serjeants. But we are used to these various names, and I think that some name is desirable. If I cannot sell the name "commissioners" to the Lord Chancellor—he said before I spoke that he would not accept it, though some Lord Chancellors have second thoughts—but he will say that he will give further consideration to the matter, then I shall welcome that. Perhaps he will say that he will find some other name. When he spoke in Committee he said, I am quite prepared to think of another name for them. May I put forward the suggestion that they should be given the name, "Assistant judges of the High Court"? I should be quite happy.

I leave it to the Lord Chancellor to choose what name he thinks most appropriate. I prefer "commissioners", because that is a name by which those acting temporarily as High Court judges have for so long been known. But if he prefers "Assistant judges of the High Court", I shall be quite content. All I am concerned to see is that the distinction is preserved between the High Court judges who are permanent and those who are not. I have said my piece on this. I hope that the noble and learned Lord the Lord Chancellor will make some encouraging response, so that I need not move the Amendment which raises this issue.


My Lords, I certainly will think of alternative names. I certainly will consider "Assistant judges "or" Acting judges", or any other name that may be suggested by ingenious Members of your Lordships' House, and if I feel that I can accept any one of them I will certainly do so.


My Lords, my noble and learned friend Lord Diplock has just informed me that in Australia they are referred to as "Acting judges".


My Lords, perhaps: they can have acting rank as I had during the war, or local and temporary rank. But I am quite happy to consider this in the spirit in which it is suggested. I should not like to accept it ex improviso.


My Lords, may I say that the expression "Acting judge" very much appeals to me?


I am very much obliged, my Lords. We seem to be moving towards a consensus. But if I may reflect deeply upon this and see whether it needs to be written into the Bill, I will do so. I am very grateful to noble Lords who have made suggestions.

On Question, Amendment agreed to.

VISCOUNT DILHORNE had given Notice of his intention to move Amendment No. 17: Page 18, line 3, leave out ("to be a temporary") and insert ("a Commissioner to act temporarily as a")

The noble and learned Viscount said: My Lords, in view of the assurances of the noble and learned Lord the Lord Chancellor of what he would do should my Amendment be moved, and assuming that he will do it without my Amendment being moved, I do not propose to move it.


My Lords, I beg to move Amendment No. 18, which is of the same complex and is purely consequential.

Amendment moved— Page 18, line 7, leave out ("to do so") and insert ("as a temporary measure to make an appointment under this subsection").—[The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 28 [Provision of accommodation]:

LORD GARDINER moved Amendment No. 19: Page 20, line 31 after ("State") insert ("for the Environment").

The noble and learned Lord said: My Lords, I hope I am not being too optimistic in thinking that, as the next four Amendments put down by the noble and learned Lord the Lord Chancellor could only have effect as being consequential on No. 19, that is an indication that he proposes to accept my Amendment. In those circumstances, I propose to say practically nothing. Your Lordships may remember that during the Committee stage I moved a similar Amendment. It is based on the view that, where possible, Acts of Parliament should say what they mean, so that educated people reading them can understand them, and that if you are referring to a Minister you should say which Minister you are talking about. My Lords, I beg to move.


My Lords, the noble and learned Lord is perfectly right. I intend to accept this Amendment, with gratitude that he should have proposed it.

On Question, Amendment agreed to.


My Lords, I beg to move Amendment No. 20, which is consequential on the last one.

Amendment moved— Page 20, line 41, leave out ("Minister") and insert ("said Secretary of State").—(The Lord Chancellor.)

On Question, Amendment agreed to.


My Lords, perhaps I may now move Amendments Nos. 21 and 22 together, because they are both consequential on the last Amendment. I beg to move.

Amendments moved— Page 20, line 43, leave out ("said Minister's duties") and insert ("duties of the said Secretary of State"). Page 21, line 1 after ("State") insert ("for the Environment").—(The Lord Chancellor.)

On Question, Amendments agreed to.


My Lords, this is purely a drafting Amendment. I beg to move.

Amendment moved— Page 21, line 8, after ("of") insert ("the").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 35 [The ballot, and swearing of jurors]:

LORD GARDINER moved Amendment No. 24: Page 24, line 38, leave out subsection (7) and insert— (7) Proviso (b) to section 1 of the Sex Disqualification (Removal) Act 1919 (under which a judge may order that a jury be composed of men only or of women only) shall cease to have effect.

The noble and learned Lord said: My Lords, in moving this Amendment, may I also speak to Amendment No. 34? This Amendment is based on the view that, although we are only continuing existing law, in a new Act in 1970 we should not enact a law based on an assumption that there are cases which either men as men are not fit to hear, or women as women are not fit to hear. As the noble and learned Lord the Lord Chancellor told us on the Committee stage, these one-sex juries have been ordered on only three occasions.


On four occasions.


And it looks, from the nature of those cases, as if, on any view, they were in each instance wrong. I cannot think it right that in these days we should continue to have such a law. I beg to move.


My Lords, we discussed this matter in Committee. Probably I should have been in favour of letting this provision wither rather than be killed. There are three reported decisions and, I think, a number of unreported cases. Of the three reported decisions, two were obviously wrong and the third was arguably right, because it was ordered at the request of the defence. But, having regard to the expressed view of the Committee at the Committee stage, I have decided to advise the House to accept this Amendment. This is probably the better course.

On Question, Amendment agreed to.

5.52 p.m.

LORD ROYLE moved Amendment No. 25: After Clause 52, insert the following new clause:

Clerk to Magistrates Courts' Committee

" . Paragraph 9(1) of Schedule IV to the Justices of the Peace Act 1949 shall be amended by inserting after the words 'shall also appoint a' the words 'Justices' Clerk to be the'".

The noble Lord said: My Lords, I beg to move the Amendment standing in the name of my noble friend Lord Merthyr and myself. May I be allowed to offer an apology to your Lordships for what happened at the Committee stage? This same Amendment was tabled for the Committee stage, but it so happened that on that day (a week ago last Thursday) both Lord Merthyr and I were not well and, without either of us knowing about that, we expected that the other would be moving the Amendment. I am very much obliged to my noble and learned friend Lord Gardiner for his effort that evening to keep the Amendment alive, and to the noble and learned Lord on the Woolsack for the remarks that he passed about it, although he said that he hoped that what he was saying would encourage Lord Merthyr and myself not to move it on the Report stage. I am sorry I cannot agree to that course, because both of us feel strongly about this Amendment.

It may well be that we are now approaching a completely different subject—indeed we are—from anything which has been discussed so far on Report stage, or even previously on the Committee stage; and it may be that the Amendment I am now moving does not seem to have the same amount of importance as the matters which we have already discussed. But in view of the fact that the magistrates' courts of Britain try something in excess of 90 per cent. of the total number of cases coming before the courts, it might be wise that we should consider anything that can be done to improve the administration of those courts—and that, I claim, is the purpose of this Amendment. If it were carried, paragraph 9(1) of Schedule 4 of the 1949 Justices of the Peace Act would read as follows: A magistrates' courts committee shall appoint one of the members to be chairman of the committee and, subject to the following sub-paragraph, shall also appoint a Justices' Clerk to be the clerk to the committee and may appoint such other officers … as the Secretary of State may approve".

My Lords, if the Bill goes through as now drafted, the position in all the counties of Britain with the exception of Rutland (and, obviously, there are reasons for that, because it is the smallest county) will be that a magistrates' courts committee may appoint anyone to be their clerk. Usually the county clerk or the clerk of the peace occupies that position, and more often than not they are the same person. But in the case of the boroughs the justices' clerk is ex officio clerk to the magistrates' courts committee, and this Amendment seeks to put the counties in line with the boroughs.

In his speech last week the noble and learned Lord the Lord Chancellor suggested that this might be done by persuasion instead of by putting it into the Bill. With deep respect, I suggest to him that that would be a very ragged arrangement. One or the other must apply; and I cannot for the life of me think that it would be advisable to leave it entirely to persuasion. I want to tell your Lordships why I think both should be dealt with in the way in which we deal with the boroughs. The noble and learned Lord the Lord Chancellor said that it was wrong to fetter the committee's choice. In that sense, he means the magistrates' courts committees of the counties. But, again with respect, I would say to him that in the case of the boroughs this fettering, as the noble and learned Lord called it, has applied since 1949, and it has been a fettering which has been a very great success since then. I have not heard or read of any complaints or criticisms of that system or any suggestion that it has not been a success in the boroughs.

To my mind, no one can be as capable of understanding the problems of a magistrates' courts committee or of a bench of magistrates as the clerk to that particular bench, and he, I believe, should act as their executive officer. Justices' clerks are in daily contact with the system. They are professionally involved, and they are therefore much more aware of its effects than either the lay justices or the council clerks. My noble friend Lady Wootton, in a small intervention made at the same time as the noble and learned Lord on the Woolsack was speaking about this question, suggested that if this Amendment were carried county magistrates' courts committees would have to change their clerk. As those clerks are invariably the chief officers of a county council, is my noble friend suggesting that they are so unoccupied that they must have a multiplicity of jobs, including the job of clerk to the magistrates' courts committee? I should have thought that a responsible, important officer like the clerk to the county council had quite enough to do to look after the affairs of that county council, without coming in on the work of magistrates' courts committees.

It has been suggested to me outside this Chamber that clerks to the counties have an influence with the county councils, the local authorities, which no clerk to the justices could possibly have. I would criticise that suggestion as being a very unfair commentary on the county councillors' ability to judge on merit cases put to them by magistrates' courts committees. It is a bad thing for the administration of justice in this country if what is done for benches of magistrates in a physical sense, in the way of provision of buildings and the like, depends on the influence of the man who happens to be the clerk at that time. In my 30 years as a magistrate I have not found any difficulty arising from the presentation by the clerk to the magistrates' committee of his case to the local authorities. I believe that what happens in the boroughs in that respect could happen in the counties, but if the clerk to the council was the clerk to the magistrates' courts committee there could be divided loyalties, and that would not be conducive to good administration.

The 1949 Act introduced a new system leading to—I hope that I am not putting it too high—the independence of the Judiciary from the undue influence of the Executive. In the course of my magisterial life I have always been very concerned about any fusion—we have been using that word a lot to-day—between the Executive and the Judiciary. It is for this reason that I have always suggested in Standing Committees in another place that magistrates should not sit in the police authorities of our country. I believe that they should be completely apart and should have nothing to do with the administration of the police.

It is that principle that I am now adopting on matters like the provision of court houses. My mind goes back to an experience in Brighton when we had to erect new law courts. I remember how the local authorities came forward with plans which were completely inadequate for the needs of the courts of Brighton. The magistrates' clerk, knowing the great needs of the town in that respect, was able to put to the local authorities a strong case on behalf of his magistrates' court committee, to show the need. What would have been the situation had the clerk to the magistrates' courts committee been the town clerk of the borough? It would have been an impossible situation. So the provision of court houses, offices and equipment, the training of staff, the training of new magistrates and the appointment of staff should be determined by the magistrates' courts committee and their clerk as their chief officer. Then the justices' clerk would be the clerk in the counties to the magistrates' courts committee. To me that is logical. I cannot see that there is any better way of doing it.

Before 1949, the clerk of the peace was the clerk to the justices when sitting in sessions; so he then had some claim for an appointment as clerk of the magistrates' courts committee. The present Bill abolishes that office and so severs his connection completely from the justice of the peace. From the time of the passing of the Bill the clerk of the county council will have no direct dealings with the work of the magistrates' courts committees and their courts. I believe that here is an opportunity to create a uniform system in this respect for the boroughs and the counties. I am asking your Lordships to agree that the time has come to rationalise the position. It may be, referring to what we have already said several times in the course of previous Amendments to-day, that this is another form of demarcation. It may be that there is a slight division between the counties and the boroughs. In the light of what the present Bill does, I believe in putting both under the same heading so that what applies at the moment in the boroughs must apply in the counties. I beg to move.

6.16 p.m.


My Lords, I hope that you will not accept this Amendment. To start with, it is quite out of order, as the noble and learned Lord on the Woolsack pointed out at Committee stage. This Bill does not deal with magistrates' clerks at all. My noble friend Lord Royle is very ingeniously riding his hobby-horse into this Bill. I realise that any clause in a Bill which goes through Parliament and receives the Royal Assent becomes part of the law of the land. It is like the famous case of the town clerk at Gloucester who in the General Clauses Bill of Gloucester inserted far down the Bill (I believe it was about Clause No. 189) a provision to the effect that the marriage between the town clerk of Gloucester and his wife was "hereby dissolved". That is a famous story; and in very much the same sort of way, my noble friend Lord Royle is trying to ride his hobby-horse into the Bill.

I ask the House to say that this clause ought not to be put into the Bill. This Bill deals with the higher courts of criminal jurisdiction. The magistrates' courts are good courts, but this is not a Bill concerned with them. It may be that before long there will be a further inquiry into the working of the magistrates' courts. There has not been one for quite a long time. The last was a Royal Commission of which for a short time I was myself a member. As a result of the Commission's Report the excellent Justices of the Peace Act was passed. I think that it is time that we had a look at that, and it may be that this is a matter which should be carefully discussed during the coming years by a Royal Commission, or by some other inquiry into the work of the magistrates' courts. If that were to happen, it would be a suitable opportunity to put forward this proposal.

Nor do I think this is good on its merits. As I see it, we are introducing a new system. Why start interfering with the position in the courts below? My noble friend said that this works well in the boroughs. That may be so: my experience does not lie in the boroughs. But the present system works very well in the counties, and they are satisfied. The clerk of the peace is the man (in my county, at any rate) whom the justices like to have as the clerk to the magistrates' court. There is a great deal to be said for this in the counties, because in the majority of cases as Lord Royle said, the clerk of the peace is also the clerk to the county council. So, apart from trying to fetter the great counties system in this country and thrust upon them what is done in the boroughs (which I suggest is completely unfair) it would be taking out of their hands a system that they are working and which they like and fettering them in the appointment which they prefer to make. That is wrong.

The present system has the great advantage (on which Lord Royle rather poured cold water) that because the man is the clerk to the county council as well as clerk of the peace, he is in an extraordinarily good position for organising the whole thing. He is in a very much better position than any single justices' clerk throughout the country, because he knows exactly how things work; and he is the obvious person to act as mediator, if need be, between the magistrates' courts committee and the appropriate committees of the county council. This Amendment, I suggest, is an attempt to interfere with a system that is working perfectly well and to thrust on the counties what may be a very good system in the boroughs, though in fact boroughs and counties differ in all sort of ways. I think that the counties would be upset if my noble friend's proposal were accepted, and I hope that your Lordships will reject it.


My Lords, I cannot possibly hope to rival the eloquence of my noble friend Lord Royle on this subject. Indeed, I had no idea that it would lend itself to such flights. I should like to make two points on a much lower level. My noble friend raised the point that this was a case of the interference of the Executive with the Judiciary. I would respectfully point out that the functions of the magistrates' courts committees are entirely administrative, and therefore the issue does not arise. My second practical point is the one that I made in Committee. If this Amendment is carried, every county in the country except one (which I think is the smallest) would have to remove the holder of this office and appoint somebody else, not necessarily of their own choosing. It may be that the clerk of the peace has too much to do and that some counties may be willing to make a change, but I think that it is an outrageous suggestion that this change should be forced upon them.


My Lords, I had some hand in setting up a magistrates' courts committee in my own county after the passing of the 1952 Act, and I remained chairman until the end of last year. The experience that I had in this respect makes me think, though I have the greatest respect for the noble Lord who moved the Amendment and for the Justices' Clerks Society, that I cannot possibly support this Amendment. I agree with everything the noble Lord, Lord Chorley, and the noble Baroness, Lady Wootton of Abinger, have said. I think that we must resist this Amendment on two grounds—first, on the question of principle. As has already been mentioned, we spend a good deal of time paying lip service to the principle that local government bodies should have freedom to manage their own affairs, and then we start whittling away that principle on occasions like this. To my mind, one cannot possibly justify an Amendment like this unless there is reason to believe that things are going wrong. My experience over 16 or 17 years with the clerk of the peace and the county council staff serving the magistrates' court committee has proved that this arrangement is the right one. Nothing ever went wrong, and none of the horrid things the noble Lord suggested might go wrong ever did.

The position in the county with a number of magistrates' courts is quite different from the position in a borough, where the work of the court is concentrated and where, as likely as not, the court itself is in the town hall. In the county, one is dealing all the time with planning, with the architect, with the treasurer, and everybody else. That is not to say that the magistrates' courts committee do not want the advice of the magistrates' clerk on many occasions. The way we dealt with this in my own county was to have a magistrates' clerk appointed as liaison officer with the clerk of the committee. He attended the committee on all occasions, except when his own salary was in question, and we gained a great deal of benefit from this system. If this system has worked in my county for 17 years, there seems to be no reason why anyone should think that the present position is wrong, and therefore I hope that, so far as counties are concerned, matters will be left as they are.


My Lords, I should like to say on behalf of the County Councils Association that they are totally opposed to this Amendment, and they also object to the way in which it has been introduced. If the workings of the magistrates' courts committees are to be examined, let them be examined properly and impartially. In my own experience—and I became a member of a magistrates' courts committee at its inception—I found that there was no objection to magistrates. Indeed, most of the members of the magistrates' courts committee appointed by the county were magistrates. There was no question of the Executive having influence over their Judiciary, or anything of that kind.

I feel that there is something more behind this proposal. I think there is a resentment because magistrates have to come to the county or borough for their money, and that this has some bearing on the general question of how the courts are administered. One must realise that in the county, at any rate, the treasurer has an important function, because he must budget for the county, and the county architect and other officers have important functions. It is an advantage to have these officers working together with a clerk of the magistrates' court who is closely associated with them. My own experience is that the system works very well. If there is any evidence that it does not work, that is the time when the law ought to be amended. But it should not be done under this Bill, and not until the matter has been properly discussed. The Amendment says that a justices' clerk should be appointed but there is nothing to prevent a magistrates' court in a county from appointing a justices' clerk from another county. What would happen in this case, I do not know. Equally, there is the question of what would happen in a county with five or six petty sessional divisions and one justices' clerk has to be appointed. I do not think it would make for the good working which my noble friend Lord Royle thinks it would have. It would be much better to leave things alone until it is shown that they do not work properly.


My Lords, this Amendment would curtail the powers of magistrates. We are urged to stand on our own feet, and who should be better fitted to do this than magistrates? I speak as a magistrate and as a county councillor. I have heard the arguments on both sides, and I think that they are irrelevant at this moment and should not be considered at this juncture. I should be very interested in them when our magistrates' court committee next appoints a clerk; that is the time when the argument should be deployed, when the magistrates can decide for themselves, rather than in this House. I hope the noble Lord will withdraw his Amendment.


My Lords, I should like to support noble Lords who have spoken against this Amendment and I hope that the House will not accept it. The only reason I rise is to stress the important link between the magistrates' courts committee and the county council. Though the noble Lord, Lord Royle, said that this was not important, in my experience, it is most important, for many reasons. For example, the finances for the probation service and other needs have to be provided by the county council. I would say, with great respect to the noble Lord, Lord Royle, that the counties have no wish to be lined up with the boroughs on this matter, though they may on other things. I think that it would be resented very much indeed if this Amendment were inserted into the Bill.


My Lords, I am also against this Amendment. My noble friend Lord Royle has virtually made this a battle between the magistrates' courts and the county councils. For many years I have had a foot in both camps. For 22 years I was on my county council as chairman of the Finance Committee, chairman of the Council, and on practically everything there was. For 26 years I have been a magistrate for my county. The only sadness about this is that under the law, enacted on the proposal of my noble and learned friend Lord Gardiner, I have to preside over my Bench to-morrow for the last time under the age limit. My noble friend Lord Royle said that the magistrates' courts committee under the present system would be likely to come under the influence of a man who happens to be clerk to the county council. Under my noble friend's proposal might it not similarly come under the influence of the man who happens to be the justices' clerk?


My noble friend will forgive me, but I did not say any such thing about influence.


I have a note of my noble friend's words at the time. But let me take the argument and not relate it to my noble friend. There has been flowing through his argument the idea that the county council was not the right organisation to have a voice in the control of the magistrates' courts—that is, irrespective of the fact that they provide all the money. I feel that it would not be right to appoint a justices' clerk as clerk to the magistrates' courts committee, because the justices' clerk would naturally have some interest in the remuneration to be paid to justices' clerks. I feel that that would be giving him a personal interest in the affairs of the committee which it would not be proper to impose upon him.

My noble friend also cited the case of the boroughs. As has been pointed out several times, the circumstances in the boroughs and the circumstances in the county are quite different things. A borough will probably have only one court, or perhaps a couple of courts, whereas a county may have 20 or 30. This is a matter that will have to be faced at some time, because under the Bill now before us quarter sessions will ultimately disappear, and therefore clerks of the peace will disappear. While it may be a fact that in many cases a clerk to a county council happens also to be clerk of the peace, there are many counties—and they are the most important counties—where the clerk of the peace is an officer appointed in his own right, quite independently of the county council.

It may well be that when the Circuit courts come into operation the clerks to the Circuit judges—that is to say, the people who used to be the clerks to quarter sessions—will have to be civil servants. But obviously this is a matter upon which long and intimate negotiations will have to take place, and it is not a matter to be spatchcocked at the last minute in a Bill dealing with something entirely different. This Bill does not deal with magistrates' courts, and it would be dangerous to put this clause in. The county councils, naturally, so long as quarter sessions remain, will have a financial interest in the running of the magistrates' courts. What their position will be when the new system comes into operation, I do not know. But that again is something that will have to be faced, and something about which there will have to be negotiations at a high level. For all these reasons, I sincerely hope that my noble friend's Amendment will not be adopted.


My Lords, I rather suggested to the noble Lord, Lord Royle, and to my noble friend Lord Merthyr, in the light of criticisms which I advanced on the Committee stage, that they should not move this Amendment. They were well entitled to disregard my advice. But I think the noble Lord, Lord Royle, may now begin to see that he has not got the sense of the House with him, and that it might be wiser for him to withdraw the Amendment.


My Lords, I know that I have the right of reply, but the hour is getting late and I do not want to take up all the points that have been made. However, I have two or three thoughts at this time. The first is: "God protect me from my friends!" The second is that I have in mind something which no doubt noble Lords will remember—Casabianca: The boy stood on the burning deck Whence all but he had fled. So far as my supporters are concerned, they have not fled; they seem never to have existed. My only regret is that my noble friend Lord Merthyr was not here to share the experience with me.

However, I find a little comfort in that the noble and learned Lord the Lord Chancellor said on Committee stage that this was a matter which might be part and parcel of new legislation at some time in connection with magistrates' courts. In any case, I cannot handle two of those ivory sticks alone. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 2 [Holders of certain existing judicial offices]:

THE LORD CHANCELLOR moved Amendment No. 26: Page 42, line 32, at end insert— (2) Subject to sub-paragraph (3) below, in any case where—

  1. (a) any such pension or derivative benefit as is referred to in sub-paragraph (1) above becomes payable to or in respect of any person; and
  2. (b) the period of that person's service which falls to be taken into account in determining the amount of that pension or benefit includes, by virtue of sub-paragraph (1) above, service in any judicial office specified in paragraph 1(2) above,
rules made by the Lord Chancellor with the consent of the Minister for the Civil Service may make provision for the payment of contributions towards the cost of the super-annuation benefits payable to or in respect of that person by any authority which, before the appointed day, was responsible, directly or indirectly, for meeting the whole or any part of the cost of the superannuation benefits payable to or in respect of former holders of that office. (3) Rules made under sub-paragraph (2) above shall not require the payment of any contribution in the case of a person who serves at least fifteen completed years as a Circuit judge, disregarding any period of service taken into account by virtue of sub-paragraph (1) above. (4) The power to make rules under sub-paragraph (2) above shall be exercisable by statutory instrument, and any statutory instrument containing any such rules shall be subject to annulment in pursuance of a resolution of either House of Parliament.

The noble and learned Lord said: My Lords, this is largely a technical Amendment which I foreshadowed on the Committee stage. It deals with contributions to be made towards the cost of superannuation benefits payable to or in respect of a Circuit judge where those benefits were greater than they would otherwise be because service in one of the judicial offices specified in sub-paragraph (2) of paragraph 1 of this Schedule has been treated by virtue of sub-paragraph (1) of paragraph 9 as service as a Circuit judge. It provides three sub-paragraphs to follow the latter sub-paragraph on the authority of which the Lord Chancellor will be able to make rules in the form of a Statutory Instrument to secure that in such circumstances a contribution towards the cost of the benefits in question shall be payable by any authority which immediately before the appointed day was responsible directly or indirectly for meeting the whole or any part of the cost of the superannuation. These paragraphs take the place of paragraphs which originally found their place in the Order Paper but were found to be defective, and which I indicated in Committee would be replaced at this stage. I beg to move.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved Amendment No. 28: Page 64, line 2, leave out paragraph 16.

The noble and learned Viscount said: My Lords, I think I can honestly say to the House, even though I am tempted to say it dishonestly, that all the Amendments which follow from now on are drafting, technical or consequential. If that he so, and if it is the feeling of the House that I may possibly be right, I will either move them formally or en bloc according to the wish of the House. I am moving now Amendment No. 28.


My Lords, the noble and learned Lord has omitted Amendment No. 27.


Then I did it dishonestly. I am sorry. I call Amendment No. 27.

Schedule 3 [Premises formerly used for business of abolished courts]:

LORD PARGITER moved Amendment No. 27: Page 45, line 10, after ("for") insert ("severance or other").

The noble Lord said: My Lords, I will be quite brief. This Amendment is similar to one that I moved in the Committee stage, and which the noble and learned Lord kindly undertook to look at again to see whether the word "severance" was really necessary. I should like to take this opportunity of thanking the noble and learned Lord the Lord Chancellor for the consideration which he gave to the Amendments which were designed generally for the protection of local authorities. I am happy to say that they are well satisfied with the assurances given. In the case of this Amendment, I gather that as a result of further discussions the Lord Chancellor's office is satisfied that it is desirable to have the word "severance" in, and on that basis I beg to move.


My Lords, as the noble Lord has suggested, I am happy to accept this Amendment.

On Question, Amendment agreed to.


My Lords, I beg to move Amendment No. 28. I think that what I said before is now true.

Amendment moved— Page 64, line 2, leave out paragraph 16.—(The Lord Chancellor.)

On Question, Amendment agreed to.


My Lords, I think I can move honestly the remaining Amendments en bloc if the House agrees.


My Lords, one of the Amendments is in my name, but I am quite content.


My Lords, the one in the name of the noble Lord is an Amendment which I think we agreed on in Committee. The noble Lord has his "the" in the wrong place. But I am grateful to him for drawing attention to the defective drafting of the Bill.


My Lords, it is not that. It is Amendment No. 34, which is consequential to Amendment No. 24, and I spoke to it when I was dealing with Amendment No. 24.


My Lords, perhaps I can move the remaining Amendments en bloc.

Amendments moved— Schedule 8, page 64, line 2, leave out paragraph 16. line 34, at end insert— ( ) In section 118(1) for the words from the beginning to 'every such officer' substitute 'Each of the officers specified in Part II of Schedule 3 to this Act'. Schedule 8, page 68, line 13, at end insert— ( ) In section 13(5)(a) of the said Act after 'High Court' insert the Crown Court '. ( ) In section 16 of the said Act (power of High Court to vary sentence on certiorari proceedings) for references to quarter sessions substitute references to the Crown Court. Schedule 9, page 73, line 34, column 2, after first ("(1)") insert (", (2)"). Schedule 10, page 77, line 22, at end insert— ( ) For the purpose of determining the amount of any benefit which becomes payable to or in respect of a contributory employee to whom this paragraph applies and who, by virtue of sub-paragraph (2) above, paid contributions as if his remuneration had not been reduced, the contributory employee shall be treated as having received the remuneration which he would have received but for the reduction referred to in sub-paragraph (1)(c) above. Schedule 10, page 77, line 48, at end insert— ( ) section 9(2) of the Local Government (Clerks) Act 1931. Schedule 11, page 80, line 34, column 3, leave out from ("(1)") to ("and") in line 36 and insert ("the last 'and' in proviso (a) and the whole of proviso (b)") Schedule 11, page 89, line 24, column 3, after ("to") insert ("judge of") Schedule 11, page 90, column 3, leave out lines 6 to 8 Schedule 11, page 93, line 21, column 3, after ("118") insert ("(2)") Schedule 11, page 93, line 21, column 3, leave out line 27. Schedule 11, page 94, line 39, column 3, at the beginning insert ("Part II of") Schedule 11, page 97, line 55, column 3, leave out ("paragraphs 11 and 12") and insert ("paragraph 11") Schedule 11, page 99, column 3, leave out line 21.—(The Lord Chancellor.)

On Question, Amendments agreed to.

Then, Standing Order No. 42 having been suspended (pursuant to Resolution of December 10, 1970):


My Lords, I have it in Command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Courts Bill has consented to place her interest, so far as it is concerned on behalf of the Crown, at the disposal of Parliament, for the purposes of the Bill.

My Lords, I beg to move that the Bill be now read a third time.

On Question, Bill read 3a.


My Lords, I beg to move that the Privilege Amendment be agreed to.

On Question, Privilege Amendment agreed to.


My Lords, I beg to move that this Bill do now pass, thanking your Lordships for the help that I have received.

On Question, Bill passed, and sent to the Commons.