§ 12.10 p.m.
§ THE MINISTER OF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (LORD ABERDARE)
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill. In doing so, perhaps this might be a convenient opportunity to say a quick word about the printing of the Bill for the Report stage. As your Lordships are well aware, the Bill has been very heavily amended and there will need to be a great many changes to not only the wording but also very many sectional references and so on. If we are to have an accurate Bill to consider on Report, it will take some little time to produce an accurate copy, but I anticipate that this will be available not later than Tuesday, October 3. In the meantime, of course, your Lordships are perfectly free to table Amendments for the Report stage, but until copies of the Bill as amended in Committee are available such Amendments will have to refer to the present print of the Bill. I would suggest, therefore, that, although the Public Bill Office will receive any Amendments that may be put down between now and October 3, they will not be circulated until that day, when they will refer to the Bill as amended in Committee.
§ Moved, That the House do again resolved itself into Committee.—(Lord Aberdare.)1427
§ LORD CHAMPION
My Lords, I quite understand the printing difficulties having regard to the magnitude and the number of Amendments passed in Committee, or by the Committee that will be sitting shortly, which will have to be dealt with by the printers. On the point the noble Lord made about our being able to put down Amendments immediately, this is something that I have done in the past, and I have always had the utmost courtesy and assistance from the Clerks in the Public Bill Office in this connection :, so that no difficulties, it seems to me, will arise there. The difficulty might arise in reading the Bill, because if one tries to read the Bill to-day and insert all the Amendments that have been made it is an almost impossible task, but we will make the best of that. The greater difficulty I foresee is the fact that we look like squeezing up Report stage and Third Reading on this Bill. I sincerely hope that we shall be able to find reasonable time in the short period after we return to ensure that the Report stage, the Third Reading and Passing of the Bill stages are not squeezed up too much to prevent us doing what might be necessary, namely, put down Amendments on Third Reading. But on this I think perhaps the noble Lord and myself had better discuss this when we see the Amendments that are put down on Report.
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 209 [Adaptation of law relating to old counties]:
THE LORD CHANCELLOR moved Amendment No. 125K:
Page 166, line 41, leave out ("and 211") and insert ("211 and section (Sheriffs and under-sheriffs)").
§ The noble and learned Lord said: As I seem to have left my spectacles behind, I will speak unseen, but I think I am able to do it without much difficulty. This is a very highly technical, and, I am afraid, an extremely boring, subject. The Amendment I now rise to move and the immediately following Amendment are, of course, paving Amendments to the new clause which stands in my name a little later, and, if I may, I will deal 1428 with all three together. The object of the new clause and of the Amendments, as your Lordships will see, is to omit the final paragraphs of Clause 211 of the Bill and to substitute the new clause which relates to sheriffs.
§ Most of the subsections of the new clause really reproduce with very little change the existing subsections of Clause 211 which it is the purpose of the Amendments to replace by the new clause. One new paragraph, that which relates to Section 34 of an old Act is simply Statute law revision ; it is to pave the way for a repeal in Schedule 30 of a spent provision in the Statute law, or rather a provision in the Statute law which will be spent if this Bill becomes law. But the remainder contain a small point of policy which I ought to explain, and it relates to under-sheriffs' bailiwicks. If the Bill remains unamended the under-sheriffs' bailiwicks will follow the new counties under the new sheriffs. For a reason which I will give, this would cause the entire operation of execution in the High Court to be thrown onto some confusion. The Payne Committee on the Enforcement of Judgment Debts does in fact suggest that the functions of the under-sheriffs in relation to High Court execution should be taken away from the under-sheriffs. That is a recommendation of the Payne Committee as to which the Government have not yet reached a conclusion, although I think it is highly likely that they may reach a conclusion later to that effect. The effect would be, therefore, that if we left the Bill unamended the under-sheriffs offices all over the country, the main function of which is to enforce a High Court execution, would be thrown into confusion to no purpose if we were to accept at a later stage the Payne Committee Report.
§ The subsections—(4), (5) and (6) I think they are—of the new clause deal with this in the following way. It is proposed to detach the bailiwicks of the under-sheriffs from the new counties and allow the Lord Chancellor to define their areas. In fact he will define them in such a way as to retain the status quo for the time being. That raises the question as to who appoints the under-sheriffs in future, as, of course, their bailiwicks will now extend in many cases into more than one county where new sheriffs are appointed under the Bill. The answer to 1429 that is that the sheriff of that county which has the largest slice of the bailiwick will appoint the under-sheriff, and that will be dealt with under the succeeding subsection of the new clause. That raises the question as to what happens when the slices are approximately equal, which may take place in Lancashire ; and the answer to that is that the Lord Chancellor will decide which is the largest.
§ The rest of the new clause and Amendments is pure machinery, drafting, and I do not propose, unless I am pressed, to deal with it at any length. No question of principle is raised by all this ; it is purely a question of administration, and I am satisfied that this is the best way of doing it. I beg to move.
§ 12.20 p.m.
§ BARONESS WHITE
I am not sure whether the noble and learned Lord the Lord Chancellor is aware that we had some slight discussion on sheriffs at an earlier point in this Bill in relation to their duties as returning officers. I have not put down an Amendment to this clause, although it was suggested to me by the noble Viscount, Lord Colville of Culross, that I might. I may still do so at a later stage. I wonder whether the noble and learned Lord could enlighten us on one point. If one assumed that the Payne Committee recommendations were to be accepted by the Government, what would there be left for either sheriffs or under-sheriffs to do? In other words, what is the justification for these officers? Is there a really serious place left for them in our judicial system, or are they, as I suggested in an earlier debate, such an anachronism that we might consider that they have really fulfilled all the useful functions that they had to serve?
I see the difficulty if the Government have not made up their mind about the recommendation for the one serious function, so far as I understand, that they still have to perform. We are in this legislation continuing the procedure for the appointment of sheriffs. We say in the Bill as amended, as I understand it, that this procedure of having three persons named, and one of them to be picked as the proposed sheriff for the county, is to continue. I am really ask- 1430 ing what justification there is for continuing this procedure.
§ THE LORD CHANCELLOR
This is wholly outside the ambit of the rather modest Amendment that I am proposing, and I do not think that I could initiate a debate on the continued justification of sheriffs within the ambit of this Amendment at all. Incidentally, except for the purpose which I will disclose, and to some extent have disclosed, I am not responsible for sheriffs, who come under the jurisdiction of the Lord President of the Council. However, I did have to deal with them when I was Lord President some years ago, and I can give the noble Baroness the information that she wants.
Judicially speaking, now that we have taken away the duty of summoning of juries from sheriffs and therefore from under-sheriffs, if we took away the High Court execution from sheriffs, and therefore from under-sheriffs, there would not be anything of any great substance left from the point of view of the administration of justice, which is where my Department comes in. I believe that there would be one or two vestigial functions, but there would be nothing left for them to do in the administration of justice that would cause me a moments anxiety in the course of a year. Of course for many years the main functions of the sheriffs have lain quite outside the administration of justice. They are Royal Officers inside the counties. They attend the judges ; they are a focal point of county life. Whether they serve a useful purpose as such is basically for the counties and for persons other than myself, and perhaps other than for the Government, to decide. My own view is that they serve a very useful purpose, and I should be very sorry to see them go.
The purposes which they serve are purposes connected with the active life of the county. They can help a very great deal. For instance, they used to give these enormous breakfasts for the grand juries. When I was a young man, just before I joined the Bar, I used to be a judge's marshal], and I used to swear in the grand juries. In practice, this was a very important gathering for the magistrates of the county. I would hope very much that the sheriffs would continue to act as a focal point, within which the magistrates and other county officers can discuss their 1431 business, and continue to act in the way that they do.
However, this is outside my function as Lord Chancellor. I can only answer the noble Baroness—and this is the only thing which is germane to the Amendment—that, from the point of view of the administration of justice, if the Payne Committee recommendation was carried into effect there would not be very much left for the under-sheriffs to do in the administration of justice. I know it is their view—and I think I share it—that so long as you have high sheriffs, the high sheriff will require an adjutant of some kind to carry out whatever functions high sheriffs will carry out, and that it would be convenient to call that adjutant an "under-sheriff" But quoad the administration of justice, which is really all I am fitted to answer about to-day, and all that this Amendment is concerned with, the answer is that the main functions of the under-sheriffs (apart from very minor functions indeed which I cannot rehearse) will disappear if the Payne Committee recommendations are carried out.
§ BARONESS WHITE
I am extremely grateful to the noble and learned Lord for having advised us in this sense. I think I was entitled to raise it because his own Amendment, as well as the Bill, says that the Lord Lieutenant shall, as soon as may be, nominate three persons. In other words, the duty is conferred on the Lord Lieutenant that he shall do this. I am far from satisfied that we ought to continue this office at all. As I do not have a substantive motion on the Marshalled List, I have no intention at this stage—although I reserve my position—to quarrel with the Amendment put down by the noble and learned Lord the Lord Chancellor which really, as he rightly said, is concerned with the bailiwicks of the under-sheriffs, and to that we would take no objection.
§ On Question, Amendment agreed to.
§ Clause 209, as amended, agreed to.
§ Clause 210 agreed to.
§ Schedule 27 [Amendments of enactments relating to justices]:
§ 12.28 p.m.
LORD FOOT moved Amendment No. 125DD:
Page 353, line 30, at end insert the following new paragraph—
(" . The words after consultation with the council or councils concerned" in section 26(1) shall be deleted.")
§ The noble Lord said: I beg to move this Amendment, and in doing so I should like to explain it and the two following Amendments. They are connected in that they are both concerned with the composition and the functions of magistrates' courts committees. Perhaps I might say a few words of introduction on all three Amendments in order to put the matter in its context. I am glad to say that I shall be moving only the first two, and that the noble and learned Lord, Lord Gardiner, has kindly undertaken to move the third. I am very relieved at that because, after the rout that I was put to yesterday on the Criminal Justice Bill at the hands of the noble and learned Lord, it is refreshing and comforting to have him on this occasion on my side.
§ The form of local government structure which is covered in this Bill involves a variety of changes in the organisation of the magistrates' courts, and that matter is dealt with in the Bill in Clauses 209 and 210. Those changes, in their turn, involve amendments of the Justices of the Peace Act 1949 and various other enactments. They are contained in Schedule 27, and particularly in the first Part of that Schedule, which deals with the amendments to the Justices of the Peace Act 1949. As I say, our three Amendments are all concerned with the functions and the composition of magistrates' courts committees. I would add at this stage, that I am authorised to say here that the Amendments that we have put down are sponsored in the first place by the Justices' Clerks' Society, and are fully supported by the Magistrates' Association.
§ In general terms, the effect of the Bill is this. The present situation is that in the existing counties there is a single magistrates' courts committee which administers the affairs of the various courts operating in the county—the various petty sessional divisions—but each county borough or city has its own magistrates' courts committee. It is proposed under the Bill that in a non-metropolitan county there will be a single committee for the whole of the new county, and the effect of that will be that the former county boroughs, which now 1433 become districts, will lose their own committees and will come under the aegis and control of the county magistrates' courts cmmittee. It is only in the metropolitan counties that the magistrates' courts committee will be retained for the districts. It appears that these alterations which are now being made are inspired, not by the thought that they will lead to any better administration of the magistrates' courts or of the law, but by the decision to fit the magistrates' courts into the new local government structure.
May I now turn to the first of these Amendments, which is concerned with the independence and autonomy of magistrates' courts committees? What is the present relationship between magistrates' courts committees and the councils to which they are attached? If I may try to summarise them, the present statutory provisions are these. They are contained in Sections 25 and 26 and in Schedule 4 of the Justices of the Peace Act 1949. Section 25 provides that:
Subject to the provisions of this Act, the council of each county and of each borough having a separate commission of the peace shall provide the petty sessional court houses and other accommodation and the furniture. books and other things, proper for the due transaction of the business".
Subsection (2) goes on to state:
The council of each county and of each borough … shall pay—
or as a member of the staff ; and, thirdly, all other costs.
In Section 26, one finds the functions which are to be performed by the magistrates' courts committee. They are, first, to decide upon the court house and to take all the decisions about accommodation, furniture and the like ; secondly, to settle the salary of the justices' clerk and the staff ; and, thirdly, to decide
the nature and amount of the expenses which a magistrates' courts committee may incur".
So that those functions were given to the magistrates' court committee. But then, when one reads on, one finds that subsection (1) states that those decisions:
shall be such as may from time to time be determined by the magistrates' courts committee after consultation with the council … concerned.
Then, in subsection (3), it is provided that if a council is aggrieved by a determination of a magistrates' court committee upon any matter contained in subsection (1), they may then appeal against that determination to the Secretary of State.
§ What is the resultant position? First of all, under Section 26 the magistrates' courts committee are given the right to determine what their needs are and how they should be met. Section 25 states that the council shall pay for those requirements although, in point of fact, the council pay only 20 per cent. because the rest is a grant from the central Exchequer. Then, as a safeguard, in subsection (3) of Section 26 it is provided that if a council is aggrieved by any demands that may be made upon it for money or anything else by the magistrates' courts committee it can appeal to the Secretary of State. If it stopped there, I should have thought it was a perfectly reasonable arrangement, but what is difficult to understand is that under Section 26(1) the magistrates' courts committee cannot make a determination about anything unless they have previously consulted the council concerned. It seems to me that the result is this. In the conduct of their affairs, before this supposedly autonomous body, which is given power to make these determinations about their own needs, can come to any conclusion upon anything at any meeting, they must first ensure that suitable consultations have taken place with the local authority.
§ There appear to me to be three objections to that. The first is that matters of accommodation and staffing of magistrates' courts are already under the overall supervision and control of the Home Office. Therefore there is this sort of double brake upon the activities of the magistrates' courts committee. Not only must they comply with requirements coming from above but, at the same time, before they can come to any decision, they must make a sideways approach to the council in order to comply with the consultative requirement. I am informed that that cumbersome and rather curious procedure has led to delays in undertaking projects and has, in particular, led to delays in the provision of adequate and satisfactory accommodation for magistrates' courts. Furthermore, it 1435 does not seem that that double requirement, of submitting to control from above and being obliged to consult with the local authority, serves any useful purpose.
§ The second reason why I think that this procedure is objectionable, is that the word "consultation" is clearly ambiguous—if anything can be clearly ambiguous. Does it mean that the magistrates' courts committee must simply go through the formula of consulting, merely telling the council what they are intending to do but saying, in effect, that if they do not like it they can lump it ; or does it mean that they really must get the agreement of the council to whatever they intend to do? Within those two extremes one could take up a variety of positions. The result might be that the more conscientious committee, the one which felt that it ought to carry out its statutory duty of consulting with the council, would be the committee which was most frustrated, because it would regard itself as being obliged to confer with the council upon every matter, however trivial. The third reason why I suggest that this procedure is unsatisfactory is that I am advised that it leads to a great waste of time and that the working-out of the details of consultation is often very time-consuming and unnecessary business.
§ I am advised, for example, that when consultations of this kind have taken place in the city of Plymouth it has been customary for there to be present two magistrates, two councillors, the town clerk and the justices' clerk. One of the matters which these people have had to consider was whether a person who was coming to give a lecture should be paid a fee of £9 or £10. Actually, the contribution of the local authority to that fee of £10 worked out at 20p. That is something which happened this year. Another example of the type of thing they have to consult the council about is whether they are going to give a typist a rise of 50p ; and another is whether the court needs another usher. Is it not really rather ludicrous that, in the year 1972, we should have that apparatus of consultation when we already have the complete safeguard, from the point of view of the council concerned, that if the magistrates' courts committee come to a 1436 conclusion and make a requirement which they think is wrong and they feel aggrieved, then they have the remedy of being able to go to the Secretary of State and say, "Is this right?" Therefore, the substance of this Amendment is that we should strike out from the appropriate place the words that require consultation with the council concerned. I beg to move.
§ VISCOUNT AMORY
I am rather surprised at this Amendment, because throughout the discussions on the Bill many noble Lords have stressed the desirability of consultation between local authorities and other public bodies, and yet here we have an Amendment which seems to be positively discouraging such consultations. I am diffident, with my association with the county councils, to stress the advantages and gains which follow from drawing on the sagacity of members of our councils ; and, anyway, I have no authority or standing whatever to speak on behalf of the new county councils which are going to arise as a result of this Bill. But consultation does not predicate agreement, far less dominance. I detect an element of fear running behind this Amendment, which fear, I believe, is entirely unjustified. I should have thought that the advice of county councils, from their wide experience of administration, in particular, and of staff, personnel and financial problems, might have been useful to the magistrates' courts' committees. What form that consultation would take obviously requires consideration and, I should have thought, could have been decided at local level.
After all, the county councils are going to be the paying authorities, and I should have thought that courtesy alone suggested the desirability of consultation in a case like this. But this Amendment seems to conflict, on the face of it anyhow, with one of the main aims of the Bill, which is to encourage the maximum co-operation between local bodies of all kinds, whether between those within the local government system or between local authority bodies and other public bodies. I should have thought that the arguments lay against the acceptance of this Amendment.
I should first of all declare an interest, as I have been a magistrate for over 28 years. Having 1437 said that, all I want to add is that I agree with every word that my noble friend Lord Amory has said, and I sincerely hope that Her Majesty's Government will not accept this Amendment.
§ LORD PARGITER
I have no objection at all to magistrates' courts being completely independent, under the Crown. That being so, I have no objection to their independence provided the Crown pays. But it would be entirely wrong and entirely different from any principle we have ever had established that any particular body should be called upon to pay any sum of money, no matter how small, unless there has been a degree of consultation in regard to the payment of that money. My own experience with regard to magistrates' courts—and I had some experience of this in Middlesex when Middlesex was a county—was precisely opposite to that which the noble Lord has quoted ; that is, trivial instances, and so on. We provided the magistrates' courts with the clerk of the peace who was the clerk of the magistrates' courts ; and they had the advantages of all the county council's services, such as the arehitect, the surveyor, the engineering staff and so on. It was all very easy for them to get their work done and keep their courts in good order. All this was done by the county council, and there was no trouble at all with regard to these particular problems.
We used to see their budget. We did not have direct control over their expenditure ; but so long as they kept within the budget—it was our job to see that they did that ; after all, we were providing some of the money—it did not matter how they spent their money provided they spent it under the appropriate headings. I must say that in the early days, when the county took over the courts, we found considerable difficulties in the handling of money in the local courts ; and we found certain things going on which certainly would not have been tolerated in the county. I am not suggesting that that sort of thing would go on or does go on, but we did find it going on ; and the establishment of an overall authority which we had in the county treasurer made a vast difference in the method of payment of monies into court—and out of court, too. So I can see no particular 1438 reason why this Amendment should be accepted at this point. If we want a discussion on the whole question of the structure of the machinery of justice, I can see a case, perhaps, for taking magistrates' courts without consultation with the county. After all, the county is in many cases the police authority, and there may be a very good argument for having a complete separation of all the functions of justice from the police, even though it is not a very large area where their functions are likely to conflict. In fact, they probably would not conflict at all. But I would insist on this as a matter of principle : that if they want complete removal from any consultation with the counties at all then the counties should not be called upon to provide any of the money. In those circumstances, and only in those circumstances, would I be prepared to accept an Amendment of this kind.
§ LORD CHAMPION
It seems to me that this is not a suitable Bill or occasion to make changes to the Justices of the Peace Act 1949. I agree completely with the noble Lord, Lord Pargiter, that the working of that Act, the division of responsibility for which that Act makes provision, has been such that there has been good consultation between the magistrates' courts' committees and the county councils, and I would say that that Act has worked satisfactorily. In any case, any change which would take the magistrates' courts' committees further away from local government would not appear to me to be a right thing to make, particularly having regard to the fact that the county councils are responsible for closely related services. The police, the social services, probation—they are all local authority functions ; and it would seem to me to be quite wrong to take the magistrates' courts' committees away from the county councils, which have the duty of looking after those services. I personally should not like to see what is suggested in these Amendments contained in a Bill of this character. If it is to be done at all, it ought to be a matter for very careful thought and, surely, very close consultation by the Government with the county councils concerned, and indeed the Magistrates' Association, despite what the noble Lord, Lord Foot, said about the views of the Magistrates' Association.
1439 The second Amendment I do not like, either. It would seem to me to place the officer concerned in a position of very great power vis-à-vis the magistrates' courts' committee. This would also appear to me to be quite wrong, and certainly ought not to be done in a Bill of this character. Finally, on the third Amendment—
§ LORD GARDINER
If my noble friend will excuse my interrupting, I am not sure what Amendment we are dealing with. I am proposing to move the third Amendment. It has not yet been moved. I find some difficulty in my noble friend answering a case which has not yet been made.
§ LORD CHAMPION
As I understood it, the noble Lord, Lord Foot, moved his first Amendment but talked to all three. If he did not I am mistaken.
§ LORD CHAMPION
I can only say that I misunderstood the noble Lord. I thought that he was talking about the three Amendments generally, and that I should be entitled to do the same. But I will leave that. I do not like the first Amendment. When it comes to the second and the third, to avoid repeating what I have just said perhaps wrongly and cut of order, I will merely say that I also do not like the second and third Amendments.
§ LORD ROYLE
Perhaps I may say one word on this Amendment. Some time ago, following the passing of the Courts Act, there were: suggestions from the Government—which I think have been partially put forward by the noble Lord, Lord Pargiter—that the administration of the courts should be taken out of the hands of the local authorities and made a national responsibility. The Magistrates' Association, and magistrates throughout the country, have agreed that that would have been the desirable thing to do. I submit to the Government that a problem like this would riot have arisen had they done what was partially promised by the 1440 Courts Act. I wonder whether the noble Lord could say what is in the mind of the Government in that respect so far as the future is concerned.
§ LORD REDCLIFFE-MAUD
I hope that the Committee will not be persuaded by the proposer of this Amendment. I cannot myself feel that the Amendment goes with the spirit of the Bill. I particularly do not like the suggestion that because there is a substantial grant (I think of 80 per cent.) from central funds, this means in effect that the Home Office control this part of the service, which is essentially a local government service. This is a most dangerous argument which could be applied to education, with disastrous results. So long as the magistrates' courts committee exists and there is this relationship I am surprised that Plymouth—and I have great admiration for the way in which they manage their affairs so far as I know—should offend against the elementary rules and practices of sensible committees and should waste time assembling distinguished people to discuss a 50p rise in typists' salaries or a 20 per cent. reduction in the fees of academics lecturers like myself. This surprises me very much. It certain does not happen in the city of which I was a city councillor years ago. In the future we shall not have this. Under the new scheme, all local authorities are going to delegate wisely and keep matters of principle only to be decided by the elected members. I am sure that the noble Lord, Lord Pargiter, was right on that. Both on the ground that the councils of the future will be wiser in the time they spend on the important things, leaving less important matters to others ; and on the general principle of the responsibility of local government for anything for which it is in fact responsible—and here it is responsible for accommodation and for other aspects of the matter—I very much hope that the Government will stand firm.
§ VISCOUNT BRIDGEMAN
May I say a few words on this matter, as one who for over fifteen years was chairman of the magistrates' courts committee? Nearly two years ago this matter came up in the House on a Motion moved by the noble Lord, Lord Royle. The House did not accept the substance of that Motion which was not very different from the substance of the Amendment proposed to-day.
§ LORD ROYLE
The noble Viscount will forgive me for interrupting, but on the occasion to which he refers the debate was not on the question that we are now discussing on this Amendment but on that raised by the following two Amendments,
§ VISCOUNT BRIDGEMAN
Very likely, but to my mind all of these are connected. I spoke against Lord Royle's Amendment last time, and nothing that I have seen since has convinced me that there is any reason to take a different view from that which the House took last time. For that reason I support everything that was said by those who are opposed to the first Amendment and I shall do the same, if I have the opportunity on the other two Amendments if they are moved.
§ 12.56 p.m.
§ LORD LEATHERLAND
I am one of those who have been thinking over the years that probably a complete overhaul of the magistrates system is overdue. But that overhaul has not been undertaken on a national basis, and we ought not to slip in this particular Amendment to that system as a sideline to a Bill which deals with entirely different matters ; namely, the reorganisation of local government.
The noble Lord, Lord Foot, mentioned the word, "independent". Nobody is more jealous than I of the independence of the Judiciary—even down to the bottom level. But as one with experience of over a quarter of a century of county councils and magistrates' benches, and as chairman in both instances, I can honestly say that in connection with my duties as a magistrate I have never been subjected in any way, materially or spiritually, to any interference. When I say "materially" I am thinking of the provision of court furniture, of staff and so on, and when I say "spiritually" I mean that nobody on the county council has suggested to the bench how they should decide, whether guilty or not guilty, in a particular case. I do not know whether the example of Plymouth, which was cited by the noble Lord, Lord Foot, is typical of the way in which local government is conducted generally throughout the country, but it seems to me to be absolutely stupid to bring these important people together to decide such fantastically minute matters.
1442 There are two sides to this case. There is the magistrates' courts committee, which spends the money ; and there is the county council which finds the money. Do not let us again hear the argument that there is an 80 per cent. refund from Whitehall on what the county council is spending ; because, as the noble Lord said, that argument can be applied absolutely and almost exactly to the education service. The magistrates' courts committee is not an elected body ; it consists of J.P.s nominated by the various benches in the county area. The county council is an elected body, responsible for providing services and responsible for what is loosely called levying taxation. It is answerable to the ratepayers for the money it spends. Your Lordships may not have gathered it so far, but very big money is involved here. In my own county this year the magistrates' courts committee are going to spend £313,000. That is an increase of 50 per cent. over what they spent two years ago. So there is big money involved. From the fact that there is this 50 per cent. increase, it looks as though the county council has not been cheeseparing and minutely governing every small item of expenditure by the magistrates' committee. What is asked for here is that the county council shall be consulted, as is the case at the present moment. There is no absolute power of veto involved here. There is, in any case, a right of appeal to the Home Secretary if something goes wrong.
Let me give the example of the use of the £313,000 expenditure in my county by the magistrates' courts committee. The amount for staff is £166,000. Of course it is very necessary to ensure that the various grades of staff harmonise with or are in contrast to the grades of staff employed in local government generally : there must not be one man completely out of step so that consequential increases in the salaries of hundreds of other people are involved. Premises cost £35,000 ; supplies, stationery, £2,600 ; and establishment expenses £40,000. Other services rendered by the county council amounted to £49,000. There are many services rendered by the county council to the magistrates courts committee. The committee use our architects, our supplies department, our treasurer, our valuers (when they buy or 1443 sell a courthouse), and they also use the organisation and methods management department of the clerk of the council.
There could be extravagance by magistrates' courts committees. I am not saying that there is. But all of us who have been "chancellors of the exchequer" of local authorities know that when each committee puts forward its annual estimates it puts forward a figure far larger than could be justified if one is taking an overall view of the rate to be levied by the council ; and the expenditure which the magistrates' courts committee wants to undertake sometimes needs to be weighed against the expenditure being undertaken by other committees of the local authority. That does not mean that there will be cheeseparing of the magistrates' courts committee's estimates as a matter of normal course.
We have as one of the bases of our Constitution the old adage that there shall be no taxation without representation. But there is something like that even in the inverse sense if a county council is responsible for the levying of rates and has to justify the levying of them and if, on the other hand, the magistrates' courts committee can come forward and say, "We want £313,000 ; we are going to have it and we are not even going to talk to you about it." That would be the position if the Amendment were carried. I do not want to go into any more detail because I know that my noble and learned friend Lord Gardiner is going to speak on this Amendment, but I feel that if magistrates' courts are to be overhauled, let it be done nationally as a piece of quite separate legislation, and do not let us push it in as a sideline in this other Bill, which is complicated enough already.
§ 1.2 p.m.
VISCOUNT COLVILLE OF CULROSS
If I may I will now send the dove of peace winging across the Chamber to the noble Lord, Lord Leatherland. I am now in the happy situation of being able to agree entirely with everything he said. May I just preface my remarks by saying that I think the noble and learned Lord, Lord Gardiner, has shown superhuman self-control in not raising the subject that has been touched on, the much wider issue of national versus local control of the magistrates' courts local 1444 organisation. I think it would not be appropriate for us to go into that on this Amendment or on this Bill. It is something that your Lordships' House might wish to discuss on another occasion. I shall not pursue it to-day. The Government have made their position clear and if it is challenged, it had better be done other than on an Amendment on a Friday to Part X or Part XI of the Local Government Bill.
For the rest of it, I do not think that the noble Lord, Lord Foot, will need to hear very much more from me before being convinced that there are weighty reasons against the acceptance of his Amendment. I could just start off with his list by saying that formally, on behalf of the Home Office, I renounce any pretence to control the salaries of the typists in the magistrates' courts in Plymouth. Nor, on the whole, would I consider it to be the duty of my right honourable friend the Secretary of State to decide whether visiting lecturers are paid £9 or £10. We do not do this from Whitehall and we do not wish to do it. Therefore, to the extent that the noble Lord suggested that we have control from Whitehall over this sort of thing, that is just not so, and we do not wish it to be so. What we are prepared to do is look at the proposals being put forward by the Justices Clerks' Society for some sort of system of annual budgeting ; only we should first have to discuss that extensively with the local authority associations. The matter has got no further than that. Always we are prepared to look at this sort of thing. That seems to me to be a much more constructive way to deal with the matter than going in for the sort of Amendment which is now before the Committee.
We have had the argument about representation and control. If the Home Office does not want to get involved in this sort of thing at this stage, I do not believe that the Committee is going to say that there should be no form of control over expenditure, particularly if it is of the size that the noble Lord, Lord Leatherland, talked about. If the Amendment were accepted, what form of control would be left? I will briefly tell the Committee. It would be that in order to be safe and to see that there was some ability in the county councils 1445 to control what was being done by the magistrates' courts committees, they would have, within one month of every decision being taken by the magistrates' courts committee, to appeal to the Home Secretary, because that is their only method of proceeding under the law as it would stand if amended in accordance with Lord Foot's Amendment. This is patently absurd. First of all, why on earth should they be in the position of not knowing what are the decisions of the magistrates' courts committee? I cannot believe, as other noble Lords have said, that it is necessary to get so many people involved in so many minutia as appears to happen in Plymouth although no doubt there is a very good reason for it happening there ; I do not know.
Secondly, what on earth is the point of invoking the now very rare procedure of an appeal to my right honourable friend in the case of every single decision, simply in order to retain control by those who have to find the money? I should have thought the Committee would have considered this to be totally absurd, but that is what would have to happen. I hope and believe that, having heard the very weighty speeches setting out the objections to it, the noble Lord, Lord Foot, will consider that his case cannot further be sustained and I hope that he will withdraw the Amendment.
§ LORD FOOT
In view of the speeches which have been made, all of them adverse, it would be very foolish on my part to try to press the matter further. Therefore in just a moment I shall ask leave to withdraw the Amendment. But first I should like to say two things. I agree that the proposals that were made by the Justices' Clerks Society to the Government, and which were rejected by the Government, whereby the whole magistrates' courts organisation would have become centrally administered and would have been divorced from local authority control, was a very much better solution than the one which is involved in this Amendment. This has been put forward only as a faute de mieux and I agree that it is not the ideal solution. It may be that it raises more difficulties than it takes away.
I do not propose to argue the matter further, particularly because I do not want to imperil the third Amendment which will be moved by the noble and 1446 learned Lord, Lord Gardiner. Frankly, I regard this Amendment and the one we shall be discussing in a minute as being of far less importance than the third Amendment, and therefore I do not want to engage in controversy with noble Lords over this and the next Amendment and thereby possibly lose their goodwill in respect of the third Amendment. With the leave of the Committee, I will withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 1.9 p.m.
LORD FOOT moved Amendment No. 125EE:
Page 353, line 30, at end insert the following new paragraph—
(" . In section 26(3) after the word "council" in every place where it occurs there shall be added the words "or justices' clerk".")
§ The noble Lord said: Here again, because already there has been some expression of opposition to this Amendment, I will be very brief. Under Section 26(3) of the Justices of the Peace Act 1949, as I have previously said, where the magistrates' courts committee make a motion about which the council are aggrieved they have the right of appeal within a month to the Secretary of State. The intention of this Amendment is simply not to take away anything from the rights and powers of the county councils which they now enjoy but simply to give a similar right of appeal to an aggrieved justices' clerk. The matters which I think have to be borne in mind here are these. First the new magistrates' courts committees for the new counties will cover a large number of petty sessional divisions, and unless the next Amendment is carried—the one which would provide that the clerk of a magistrates' courts committee should always himself by a justices' clerk—on these new magistrates' courts committees the justices' clerks will be wholly unrepresented. Even if our third Amendment is carried, there will only be one justices' clerk and that will be the clerk to the authority, sitting on the committee.
§ The third factor which I suggest has to be borne in mind in justice to justices' clerks is that the Police Commission make decisions affecting the administration of all the petty sessional divisions and petty sessional courts throughout the country and affecting the clerks of those courts, and sometimes those decisions have a 1447 special import and special implication for a particular area and for a particular clerk. The fact is that under the new procedure, in those circumstances, any decision can be made affecting a particular area or a particular justices' clerk, perhaps without his knowing anything about it until after it has been made: and once the decision has been made there is no way in which he can require it to be reviewed. Even if he knows something about it beforehand, he has no part, and nobody on his behalf has any part, in the decision. The committee which makes the decision may make it under a misapprehension, or because they have not had full representations made to them by the court or division or by the justices' clerk concerned. If such a mistaken decision is made, then it is something against which the clerk has no appeal.
§ So the purpose of this Amendment is simply to allow a justices' clerk—or, if it were preferred, the justices of a particular division in place of the justices' clerk—if he is aggrieved by a decision of the magistrates' courts committee, in the same way as a council is to-day to take his grievance to the Secretary of State and ask him to resolve it.
VISCOUNT COLVILLE OF CULROSS
Other noble Lords have already indicated in advance that they see difficulties in this proposal, and I am bound to say that I do, too. What we are really doing here is putting the justices' clerks in respect of appeals in relation to decisions on expenditure by the magistrates' courts committee into the same class and privileged position as the county council. There is certainly, as I have attempted to explain, and as other noble Lords have explained better than I did, very good reasons why county councils should have, as a long-stop, a formal right of appeal to my right honourable friend on questions of expenditure ; but is it really sensible or appropriate for the justices' clerks to be put in the same independent position, and turn them into, as it were, a separate authority in their own right with this sort of appeal. After all, they are appointed and hold office under the aegis of the magistrates' courts committee. In actual fact, there is a provision in the 1949 Act that an individual justices' clerk shall be consulted before any of his 1448 staff are engaged or dismissed, unless he does it himself on behalf of the magistrates' court. And there are other provisions which safeguard the position of justices' clerks.
I should have thought that this promotion of the justices' clerk into, as it were, a statutory authority for this purpose was wholly disproportionate. Rather, would it not be more harmonious in the workings of the local magistracy, their clerks and other officers (and this of course is freely open, both under the existing law and under the Bill, because there is no Amendment which in any way affects this) if this sort of thing could be taken up informally? There is no difficulty about taking it up informally. I should have thought that it was much more likely that disputes or disagreements could be resolved in that way without too many feathers being ruffled, rather than if one went through the whole rigmarole of a formal appeal to my right honourable friend with all the formalities that that would entail. I would ask the noble Lord, Lord Foot, to consider whether he is not here taking a sledgehammer to crack not only the very small nut, but in the process something which is going to drop on to his own toe, and on to the toes of a lot of people in this particular world, with very painful results.
§ LORD CHORLEY
I have rather more sympathy for the noble Lord in his moving of this Amendment than I had with him on the earlier one ; but I do not think I should be prepared to go into the Division Lobby with him even on this occasion. However, I should like to put to the noble Viscount the question which was put to him earlier, as to a real survey of the whole position of magistrates and their work. It is now, I suppose, quite a quarter of a century since the Royal Commission—and, incidentally, I was a member for about a fortnight of that Royal Commission—produced a Report on which the 1949 Act, which is continually being referred to in these discussions, was passed. From time to time in the intervening years the need for a further survey of the situation, and for some really quite radical reforms, had been adumbrated in your Lordships' House.
All these questions which arise in connection with these three Amendments are 1449 really very much tied up with this one, and it would be to some of us, at any rate, a great help—indeed, I think it would be the magistracy as a whole—to know whether the Government have in mind a Royal Commission, or some other means of looking carefully at the situation, and, if so, whether it is likely to take place at a reasonably early date.
VISCOUNT COLVILLE OF CULROSS
If we must go into this question, perhaps I may be forgiven for doing it fairly briefly, because I do not think it arises out of the Local Government Bill. Perhaps I can remind the noble Lord, Lord Chorley, of the Answer that my right honourable friend the Member for Barnet gave in another place on February 24 of this year, when he was Home Secretary. These are the terms of his Answer:After careful study of the views of the organisations which were consulted the Government have decided that there should be no fundamental change in the present form of administration."—that is, of magistrates' courts.Improvements in administration of the magistrates' courts will be made by provisions in the Local Government Bill and the Criminal Justice Bill, both of which are now before the House.I am afraid that I cannot possibly go further than that to-day.
§ LORD CHORLEY
I am grateful to the noble Viscount for reminding me of that. However, I still think it is an unsatisfactory situation.
§ LORD FOOT
I am afraid that I am not so impressed by the arguments the noble Viscount has addressed to us on this Amendment as I was on the previous Amendment. He uses, as I understand it, two arguments. He says, first of all, that if we were to give an aggrieved justices' clerk a right of appeal to the Secretary of State we should be raising him, as it were, to the status of a statutory authority. It is only because it happens that the other party, the people who have the present right of appeal, are the council. All you would be doing would be conferring upon a justices' clerk who is aggrieved, as an individual and as the holder of that office, the same rights as those conferred on the local authority under the present Act as it stands. Then the noble Viscount says that surely a much more sensible way of dealing with the matter, if something is done about 1450 which the justices' clerk is aggrieved, would be to approach the matter informally and make representations with a view to having the decision reversed and amended. I am quite certain that in the vast majority of cases that is what would happen. That is the procedure which the justices' clerk would follow. But if you do not give him an actual right of appeal in the last resort, you are not really giving him anything enforceable at all. When you say that he can make informal representations you are purporting to give him something, but in the last resort, if the magistrates' courts committee are unwilling to reverse their decision, in fact he has no form of redress, however unreasonable the thing may be that has been done.
In my submission, the need for this right of appeal for an aggrieved justices' clerk will be greater when this Bill comes into force than it is at present, because the present position in the county boroughs and cities is that there is only one magistrates' court committee for that county borough and the clerk of the court is automatically the clerk of the magistrates. In those circumstances it is very difficult to foresee that the magistrates' clerk could be aggrieved by a decision of the committee of which he is the clerk—the situation would not arise. But when that county borough ceases to be a county borough and becomes a district of a non-metropolitan county under this Bill, the situation then is that that separate magistrates' courts committee which formerly functioned in the borough ceases to exist, and of course the clerk ceases to be the clerk to that committee. The functions are then moved to the county centre and are performed by the county magistrates' courts committee.
On that committee the situation is entirely different. If you have a justices' clerk in one of the outlying areas who is aggrieved by something which is done by the magistrates' courts committee sitting at the county centre, of which he may have heard nothing before it is actually done, or against which decision he may not have been able to make any representations, or any that were listened to, then if that happens he is confronted with a decision which he has been powerless to influence. In those circumstances, is there not a case for his being given some right of redress if he cannot get 1451 redress through infomal discussions and representations which the noble Viscount has suggested?
VISCOUNT COLVILLE OF CULROSS
Would the noble Lord give way for one moment? There is one factor in this which perhaps I should have mentioned in the argument. If the noble Lord will refer to paragraph 14(6) of Schedule 27 he will see that we are taking powers to make regulations about who shall be able to attend the meetings of magistrates' courts committees. One of the objects in this is to make sure that there is somebody there—a justices' clerk or somebody who can represent the interests of justices' clerks—and so the remoteness or the inability to influence a decision (though I appreciate it will not be the same as it is in a county borough now) is not quite so serious. There is not quite such a gap in communications as perhaps the noble Lord may have thought.
§ LORD FOOT
My attention had already been drawn to the implications of that paragraph. I agree that if the Secretary of State makes an order providing that one person representing the justices' clerks throughout the whole council can attend—not as a member but simply to be in attendance at magistrates' courts committee meetings—of course I agree that goes a little way. But whichever justices' clerk it may be—and I do not know, for instance, how many petty sessional divisions there will be in the County of Devon—that man will be one out of a number of justices' clerks and may not have any particular knowledge about a problem arising in another petty sessional division of which he is not the clerk. Therefore I would suggest that while that goes a little way towards meeting the point, as the noble Viscount has conceded it does not really restore the situation to what it is at the present moment in the county boroughs and cities. I think I ought to divide the Committee on this matter and therefore I wish to uphold my Amendment.
§ On Question, Amendment negatived.
§ 1.28 p.m.
LORD GARDINER moved Amendment No. 125FF:
Page 354, line 32, at end insert the following new subparagraph—
(" ( ) in paragraph 9(1) of that Schedule after the word "appoint" when it secondly appears add the words "a justices' clerk as".")
§ The noble and learned Lord said: I should be deterred from moving this Amendment in this very thin Committee so largely composed of very distinguished county councillors if I did not believe that it was important to the administration of justice. May I first withdraw something which I said a little time ago in this House and which I regret to find was completely wrong. I could perhaps defend myself by saying that it was not a statement but a question ; but of course a question can imply an answer, and naturally I should not have asked a question implying an answer if I did not think it was true. It related to the disastrous decision of the Government not to bring the magistrates' courts into the unified courts system of the country. But I agree with the noble Viscount that that is not a matter to be discussed to-day. I never in the field of justice entertained any clearer opinion than this: it is a decision which will have to be changed. I very much hope that this Government will change it. I have observed that the Government are not afraid to change their minds. I regard this as a sign of strength and not of weakness. I hope very much that this will be done by this Government but, if not, it will have to be done by the next one.
§ I asked a Starred Question, and where I went wrong was in putting a wholly unpremeditated supplementary question. The Starred Question I had asked was designed to bring out the fact that this disastrous decision was taken against the advice of the Magistrates' Association, of the Bar Council, of the Justices' Clerks' Society, of the Law Society, of the police authorities and of the Greater London Council, and so on. In his reply, the noble Viscount referred to the Central Council of Magistrates' Courts Committees. I asked whether it was not a fact that the Central Council was well known to the appointee of local authorities. The noble Viscount said that he would inquire. I have to say that I was completely wrong. The Central Council, like all the magistrates' courts committees, is elected by and composed of magistrates. I regret having said something so wholly wrong: but the only thing I can say in extenuation is that there is a very general impression that whereas in the towns the 1453 magistrates' courts committees are vigorous and independent bodies, in the counties they are the creatures of the county council, and some people even believe that they are appointed by the county council.
I suppose that there is no Member of your Lordships' House who has more experience in this field than my noble friend Lord Pargiter, for many years an ex officio justice of the peace, three times mayor, chairman of Middlesex County Council, and chairman of the executive committee of the County Councils Association. In December, 1970, my noble friend Lord Royle put down an Amendment at Report stage of the Courts Bill on very much this point. I did not support him because I thought that the noble and learned Lord the Lord Chancellor was right in saying that it was really outside that Bill, that being a Bill to deal with courts of assize and quarter sessions, not magistrates. But then my noble friend Lord Pargiter spoke—and I told him that I was going to refer to this matter and indeed I discussed it with him—and he said:
In my own experience—and I became a member of the 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 council were magistrates."—[OFFICIAL REPORT, 17/12/70, col. 1592.]
It will be observed that this is also completely wrong ; they are not appointed by the council, nor are any of the members.
The question is: why is there this general impression about? The point is put in this way in a memorandum to the Home Office by the Justices' Clerks Society. They say:
It is of the utmost constitutional importance that the judiciary should be independent of the executive. The dependence of magistrate's courts upon borough or county councils for financial support, and the provision of services, clearly offends this principle and, more seriously, encourages the belief among justices, members and officials of the local authorties, and members of the public that the local courts are influenced or controlled by the local authorities. In some county areas the magistrates courts committee is openly regarded as a committee of the county council, an impression which is encouraged by the knowledge that both bodies are served by the same executive officers.
An article in The Justice of the Peace and Local Government Review of May 6 of this year puts the point in this way :
Since the Act "—
the Justices of the Peace Act—
came into force there has been continued criticism of its operation based mainly on the fact that the concept of a separate and independent committee of magistrates negotiating with the local authority whose money it spends has never really functioned in practice in the county areas. The reason for this lies primarily in the fact that the position of clerk of the county magistrates' courts committee has until recently been held almost universally by the clerk of the peace who in the county was also clerk of the county council. One and the same man therefore was expected to argue the interests of the magistrates against the county council and to represent the views of the council hack to the magistrates.
§ Experience has shown that this is how things work. In the towns that have more experienced magistrates' courts committees, where there are six, seven or eight courts sitting every day, five days a week, they administer their own affairs. Under the Act they are the only people who can decide what their accommodation is to be, what their staff is to be, what they are to be paid. The local authority cannot decide anything. There is this obligation to consult because they find a very small part of the money. The town magistrates' courts committees are quite capable of looking after themselves, and when there is a dispute with a local authority experience shows that more often than not the Home Secretary supports the magistrates' courts committee. In the counties the experience is quite different. Hardly any cases go to the Home Secretary, and the reason is the one indicated: that if there is a dispute who does the county council expect to draft their case, their appeal, and put it to the Home Secretary?-the clerk of the county council. Who have the magistrates got to put their case to the Home Secretary?-the clerk of the county council. How can this situation possibly be right? How did it ever come about that one and the same man is on both sides at the same time? Like much in our judicial history, it came about quite accidentally.
§ Of course, local government itself is pretty new. I speak with great hesitation on local government, but I think the first parish council was 1888. In our 1455 history the local government was really the justices in the quarter sessions. The parish was an ecclesiastical matter ; it was the justices in the quarter sessions who through the centuries were the local government. The King's justices were there to keep order and to conduct what local government there was, originally administering justice not in a court, but in their own parliaments. When these councils came along, the whole thing had to be married together, and it was not until the Act of 1949—after a Royal Commission had sat—that the marriage was complete. It was then for the central Government to get the thing moving: the election of the magistrates' courts committees, which consisted almost entirely of magistrates, though there was one ex officio member in the towns, the chairman of the local courts quarter sessions, and another in the counties, the Lord Lieutenant—or, more accurately, the Custodes Rotulorum. Naturally, central Government, wanting to get the thing moving, contacted in the towns the chairman of the bench, and in the counties the Lord Lieutenant. I think it is generally known that the chairman of the Lord Chancellor's Advisory Committee is usually in the borough as chairman of the bench, and usually (though not by Statute) in the county the Lord Lieutenant.
§ When it came to finding a clerk or secretary of the magistrates' courts committee, it was laid down in the Act that in the boroughs he must be the clerk to the justices, but in the counties it was left to the magistrates to elect their own clerk. It was quite fortuitous that when the Lord Lieutenant said, "Whom shall I recommend to the magistrates' court committee to appoint as clerk'?" he chose the clerk of the peace. He did this I think for three reasons: first of all, by statute the clerk of the peace is also the clerk to the lieutenancy, so the Lord Lieutenant is used to dealing with the clerk of the peace for any secretarial work he wants done. Secondly, the clerk of the peace in the counties, like the justices' clerks in the towns, is usually the secretary to the Lord Chancellor's Committee. Thirdly, because the clerk of the peace, being a lawyer and being the clerk of quarter sessions, would know all about the problems of the courts.
But nobody seemed to envisage what would happen if there was a conflict. This has caused all the trouble, because the clerk to the county council naturally tends to dominate the magistrates' courts committee in the county and, as I have said, a perfectly impossible position arises if the magistrates' courts committee want to be firm. The position now will be rather worse. In the Justice of the Peace and Local Government Review for July 29 there appeared these words:
Under the Act as it is passing through Parliament it is open to county justices to appoint the clerk of the county council as secretary of their magistrates' courts committee, and I have no doubt at all that most of the clerks who serve in this capacity and wish to continue to do so, will be re-elected.
This was the noble and learned Lord the Lord Chancellor addressing a branch of the Magistrates' Association.
The Justices' Clerks Assistants, in a memorandum to the Home Office, said:
The appointment of the clerk of the peace as clerk of the magistrates' courts committee where he held that office alone was not open to much criticism, but when held, as in the majority of cases, in conjunction with the office of the clerk of the council, experience has shown this to be undesirable. The office of clerk of the peace disappears in 1972. Future legislation should not permit a similar joint post being re-created.
I am told that in every county except two the clerk of the peace is also the clerk to the county council.
In a previous article in January, 1971, the Justice of the Peace said this:
While most county council clerks are excellent, conscientious men who treat their magisterial duties very seriously, they are in this position being asked to do something which is seldom possible and never satisfactory ; that is, to wear two hats at the same time. Instead of being able to negotiate with the local authority at arm's length, many magistrates' courts committees, staffed and clerked by the officers of the county council, find themselves without any real independence from the authority on which they are financially dependent ; and this is reflected in many areas by the county treasurer and other officials sitting in on discussions of the magistrates' courts committee as a matter of course.
This is not the only disadvantage. Unlike their colleagues in the boroughs, petty sessional division clerks are frequently not consulted over matters intimately concerning them by committee clerks who may never have seen the inside of a magistrates' court. In some counties the justices' clerks do not even have the privilege of a representative observer on the committee and local authority procedures and work study systems are applied to the
magistrates' courts however inappropriate they may be. Many clerks to justices of petty sessional divisions have been left with the feeling that where their interests conflict with those of the local authority it is always the latter which will prevail. In these circumstances and without an independent clerk of its own, it is extremely difficult for a county magistrates' courts committee to take a line on any important issue at variance with the policy of the local authority. Indeed, it must seriously be doubted if many members of such committees are fully aware of their responsibilities and powers, in particular their legal relationship with the county council.
And in another issue of October 23 they refer to that article and say :
It is that system which is now to be applied all over. Moreover, the fears expressed by many clerks to justices, that the principal officers of the new committee will continue to be drawn from local government rather than the court service, now appear to be well founded.
The position to-day is naturally worse in two respects : the first is that by the Courts Act the clerks of the peace have disappeared. It may be the case, of course, that for the time being the same men will be appointed clerk to county magistrates' courts committees. But the point is that there is no reason to think that in future the clerks to the new county councils will be lawyers. They will be a new race of very high-rating administrators, and they may never have been in a law court in their lives. That is the first effect.
Then there is the effect of this Bill. The Magistrates' Association's annual report came out last week and I see that on page 11 they say that they have been to the Home Office—
We have been consulted on a number of points about the future administration under the new local authorities' set-up when magistrates' courts committees will be reduced from the present 154 to 78. On 22nd June, 1972, our principal honorary officers had a long discussion at the Home Office with Mr. Mark Carlisle, the Minister of State, and his advisers. Among many points raised our representatives stressed the need for the composition of magistrates' courts committees to represent petty sessional divisions fairly, having regard to population and other factors, and the importance of ensuring that their secretaries should not be on the staff of the county council.
Of course, what they there refer to is the second effect of this Bill : all the most experienced magistrates' courts in the country are disappearing. I do not know whether magistrates generally realise this. I think the figures are right: there are at present 154 magistrates' courts com
mittees. The knowledge and experience of benches in the towns—the sort of places which, as I say, had six, seven, eight or nine courts sitting every day during a five-day week dealing with every possible variety of crime—is of course much greater than that of a bench in the country, which may sit once a week or twice a week or even once a month dealing mainly with traffic cases.
§ Apart from those in the metropolitan districts, about half the magistrates' courts committees in the country-78, I think, out of 154—are going to be swept away. That means, I should have thought, that the composition and working of the new county magistrates' courts committees was more important than even in the past. I would appeal to the Committee to agree that we really ought not to go on any longer with this entirely anomalous position in which the only body, virtually, that a magistrates' court committee can get involved in a dispute with is the local authority—though it could also, I suppose, be at variance with the police authority, but the secretary to the police authority is the secretary to the county council, anyway. It is quite wrong that this man should wear two hats and he on both sides of the fence at the same time. So, naturally, justices feel, "We have nobody to help us over this because our own clerk to our own committee, if we are going to have a dispute, is going to be the principal opponent on the other side." This really ought not to continue, and it ought to be laid down that the clerk to the county magistrates' courts committees should by Statute be, as they are by Statute in the case of the towns, a justices clerk. 'While it is easy to say, "It is being left to them", it always has been left to them and the result has been this dominant influence of the clerk of the county council, which in my submission ought not to be allowed to continue.
§ 1.47 p.m.
VISCOUNT COLVILLE OF CULROSS
I do not want to curtail discussion in this Committee, but the noble and learned Lord, Lord Gardiner, has set out the case for this Amendment with great thoroughness and deployed, I should have thought, almost every argument it is possible to deploy. It might therefore be for the convenience of the Committee if I were now to tell the Committee the result of the consultations with the Home Office 1459 that he mentioned. It may then be easier for the Committee to make up their minds, rather than go over some ground again. It is true that we know the view of the Justices' Clerks Society that the clerk of the magistrates' courts committee should always be selected from justices' clerks ; I am not surprised at that and I do not suppose anybody else is, either. The Committee has now been told that the executive committee of the Magistrates' Association—though I think it represented a majority only, but never mind: 75 per cent., a little bird in my ear has whispered—took the view and represented to us that it was undesirable that a local authority official such as the county clerk should hold the position we are now discussing. The same view was represented to my honourable friend the other Minister of State by the Central Council of Magistrates' Courts Committees, whose position is now entirely clear as a result of what the noble and learned Lord has said.
They came in July to discuss these matters. They advanced the same argument—not so much about justice being seen to be done, but rather on the financial control side ; that since the county council is, as we now know, responsible for the financial side, any officer like the clerk could be thought to be unduly biased in favour of the county council, with the result, true or merely thought to be true, that the noble and learned Lord has been talking about. We also have been told forcefully about the result of the disappearance of the position of clerk of the peace, which again has now been explained. My honourable friend said that this matter would be considered, and we have been considering it. Our view is now this. We agree that the position regarding the administration of magistrates' courts has changed substantially since the Justices of the Peace Act came into force in 1953. There are a number of examples of this, but probably I need hardly go into the changes, since the noble and learned Lord has dealt with them already. There is a good deal of increasing complexity, apart from anything else, in the sort of business that they have to do, and there are good reasons for reconsidering, within the framework of the present locally-based system that we have 1460 decided to preserve (and I am not going into that) the various administrative matters, such as the choice of the clerk to the new magistrates' courts committees. Everybody will have to do this as a result of this Bill because, as the noble and learned Lord rightly reminded us, there will be a reduction from 154 to 78 of these committees, so it has to be thought out again.
On the whole we think it is not right to direct the magistrates' courts committees by Statute that they must appoint a justices' clerk. There may be exceptional cases where they do not want to, and we should not wish to fetter their discretion completely in the way that this particular Amendment would do. But what we should like to do is to remind the magistrates, when they are deciding on the appointment of a new clerk for the new magistrates' courts committees, of the point of view that has been put forward and their freedom of choice. At the same time, the magistrates' associations will no doubt be dealing with this matter and reminding their members of the views that have already been expressed, and so, one would think, would the Central Council of the magistrates' courts committees, which hold the same views as the noble and learned Lord opposite. They are in a much stronger position than are we at the Home Office to advise the magistrates' courts committees whom to select, and to put the points of view which have been expressed in this short debate.
There are slightly different views on this subject, but I think the way it has been expressed so far is very much along the lines suggested by the noble and learned Lord. In these circumstances, and with the sort of sympathy that I have been able to express for this point of view, the very solid foundation of fact upon which the representations have been made and the strength of feeling inside the associations of magistrates, who will in fact be advising their members, I wonder whether the committee would think that we have now reached a stage where the change may in practice come about. At the same time would it be right actually to provide that the appointment must in every case be of a justices' clerk? There may be an exceptional case where someone who is in no way connected with local government has a very 1461 good claim to be selected and he would be the person whom the magistrates' courts committee would choose. We think this is possible and we do not like the idea of completely fettering the discretion of the magistrates' courts committees.
I think I have made plain what the view of my Department is on this matter and I wonder, therefore, whether the Committee will think that the situation has been substantially improved as a result of representations that have been made, that we do not actually need this Amendment and that the effects that the noble and learned Lord wants are likely to be carried out in any event.
§ LORD GARDINER
I am not quite sure why it is necessarily wrong to provide by Statute that the clerk to a magistrates' courts committee in a county should be a given person when it is right to do so in a town ; but in view of what the noble Viscount has said I should be reluctant to press this matter further, although it is actually a matter for the noble Lord, Lord Foot.
VISCOUNT COLVILLE OF CULROSS
I think the noble and learned Lord was saying that as the noble Lord, Lord Foot, also has his name to this Amendment it would be a matter of civility to ask him for his views.
§ LORD FOOT
I am very much obliged to the noble Viscount. I share the view of the noble and learned Lord, and I think it would be quite wrong to press this to a Division. I am grateful for the assurance that we have had from the noble Viscount and the report upon the decisions of the Home Office investigation.
§ Amendment, by leave, withdrawn.
§ Schedule 27 agreed to.
§ Clause 211 [Lieutenants and Sheriffs]:
Page 169, leave out lines 11 to 26.-(Viscount Colville or Culross.)
§ On Question, Amendment agreed to.
§ Clause 211, as amended, agreed to.
After clause 211 insert the following new clause: