HL Deb 08 February 1973 vol 338 cc1207-20

6.37 p.m.

THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ALPORT in the Chair.]

Clause 1 agreed to.

Clause 2 [Stipendiary Magistrates]:

LORD GARDINER moved Amendment No. 1: Page 4, line 4, leave out from ("Wales") to end of line 7 and insert ("shall not in the Inner London area and in the City of London exceed sixty or elsewhere eighteen unless so provided by Order in Council laid before Parliament and approved by both Houses of Parliament.").

The noble and learned Lord said: It is a tribute both to this Bill and to the noble and learned Lord the Lord Chancellor that, although it is an important Bill, there is only one non-Governmental Amendment at the Committee stage of the Bill. We have considered the Government Amendments which are to follow later. They are mostly technical or drafting and we raise no objection to them or any objection to however fast the noble and learned Lord likes to dispose of them.

The subject matter of the Amendment I am moving raises a question of some importance which I mentioned at the Second Reading of the Bill. It relates to our system of criminal justice which is unique in the world in that 98 per cent. of all criminal cases are decided by laymen. There is no other country in the world, I believe, in which that is the case, and indeed there is no country where, with them and juries, lay citizens play so large a part in the administration of justice. My Amendment is designed to prevent this system from being radically changed without the authority of Parliament.

The present position is this. In London, where the work is very heavy indeed, including long cases which are going to trial and a multiplicity of small traffic offences, there have to be a number of stipendiary magistrates. These are limited by Statute to 40 and there are at present 39 in post. Outside London, the position is that stipendiaries can be appointed only on the application of the local authority and at the moment there are only 11. The Bill proposes that instead of their being appointed only on the application of a local authority, the Lord Chancellor should be able to appoint as many stipendiaries throughout England as he likes, and that there should also be no limit whatever to the number of stipendiary magistrates in London. It would thus be possible—not, of course, immediately but at a future date—to change the whole of the system without the authority of Parliament.

The answer made by the noble and learned Lord to this unusual and drastic proposal was, first, that he was just as much an enthusiast about the justices of the peace as I am; that he had no intention of appointing more than one or two outside London, or as might be necessary in London, and that if he wanted to he could not because there would not be enough lawyers to be appointed. I fully accept all that. But it is the way of Government Departments to take wider powers than they necessarily need, and this is a question which is essentially a matter of opinion. I think all those who have addressed public meetings of one kind and another where questions are put relating to the administration of justice know that one question you are always asked is: "Would it not be better, instead of having all these lay justices, to have stipendiaries?". That is something on which different views may be held. If a Lord Chancellor in the future persuaded his colleagues that that was desirable, it is a change which, if the Bill is passed into law in its present form, he could very easily make.

One stipendiary is about equal to 50 justices of the peace. This is because he sits daily; the justices sit on average once a fortnight and there have to be two or three justices sitting together. There are about 1,000 courts sitting daily, 950 presided over by justices and about 50 by stipendiaries. Therefore, if a Lord Chancellor wanted radically to alter the system, and persuaded his colleagues to accept his view, he could very easily do so, because every year about 1,500 justices retire and 1,500 others have to be appointed; so by appointing stipendiaries and omitting to appoint further justices of the peace the change could very easily be made.

What, therefore, this Amendment seeks to do is to place a limit on the number of stipendiaries who can be appointed without coming to Parliament. It is proposed that in London that number should he an increase of rather more than 50 per cent. As I have said, there are 39 in post and the Amendment proposes that there should be a maximum of 60; and that outside London, where there are 11, there should also be an increase of rather more than 50 per cent. These figures, I hope, are reasonable. At the Second Reading the noble and learned Lord also made the point that once you have a statutory limit difficulties can arise, because then you have to pass an Act of Parliament to get the statutory limit altered. Therefore, in the Amendment which I have put down—though I do not suppose for a moment it is properly worded—I have sought to provide that if at any time it is thought that the numbers are insufficient, instead of coming to Parliament with a Bill it would only be necessary for the Government to come to the House with a Statutory Instrument for an increase, provided it was approved by both Houses of Parliament.

On the Second Reading of the Bill, the noble and learned Lord was good enough to say: …this is not the kind of Bill about which I have any inhibitions. I should be delighted to have suggested Amendments on this subject. If the noble and learned Lord, Lord Gardiner, desires me to curb the powers which I am proposing, I am sure he will do so kindly and I will certainly look at any Amendment he or anybody else puts down; and in the meantime I will contemplate the possibility of proposing a Government Amendment, without undertaking to do so. At any rate, this is not something about which I feel any kind of false pride and I should be delighted to have any suggestions for improvement either now or at any other time."—[OFFICIAL REPORT, 29/1/73. col. 426.] So I am not unhopeful that the noble and learned Lord will favourably consider the Amendment.

In a sense, if I may say so, for one who is as logical as he is, I think he is in a slight logical dilemma, because, of course, the more he says, "But I have no intention of doing anything of the kind; I may want a few more in London; I might want to appoint a couple of extra ones in the Provinces, but I am certainly not going to do this", the less reason there is for his opposing the provision that there should be a point beyond which future Lord Chancellors cannot go without the authority of Parliament. He has also said, of course, that he would have to get the agreement of the Treasury, but if a future Lord Chancellor persuades his colleagues to adopt this policy it would follow that lie would also get the approval of the Treasury. I beg to move.

THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLFBONE)

The noble and learned Lord has rightly said that he raised this question on Second Reading, and, as I promised on Second Reading, I went straight back and took advice about both the principle and the practice of this. I received very strong advice against a statutory limit, both on principle and in practice, and I should like the noble and learned Lord to consider some of the things which were said to me, as I think on the whole they are persuasive.

The noble and learned Lord referred to the Bill as drafted in Clause 2 as an unusual and drastic proposal. I think for once he was overstating his case. When he left me the valuable legacy of the Courts Bill, which is now in the form in which I approved it—it was not identical, but I think for this purpose is very nearly the same—I found a proposal that I should have an unlimited power, exactly as drafted here, to appoint circuit judges under the new Courts Act. Indeed, I have had that power and I have had to appoint, I think, more circuit judges than Lord Chancellors have ever appointed county court judges or chairmen of quarter sessions in the history of the sport. A circuit judge is a very highly paid official, I think far more highly paid than a stipendiary, and I am allowed to appoint as many as I like simply after consulting the Civil Service and without getting express approval of Parliament. Of course, I have to persuade the Civil Service Department and I have to persuade the Treasury, which is really a effective bar to my appointing too many.

I do not know what I would do if I had to ask for Parliament's approval every time I wanted to raise the maximum, and I must say that if I chose to be the kind of Lord Chancellor that the noble and learned Lord is postulating some Lord Chancellor might be in the future, I could put all those circuit judges on the Commission of the Peace, and as they would be receiving a permanent salary they would do a great deal of work for nothing. So in effect I could outwit the wishes of Parliament, if they were as embodied in the noble and learned Lord's Amendment. The fact is, of course, that what the noble and learned Lord has done is to swallow a camel himself fand then five years later ask me to strain at a gnat, because this is very much less than he left behind to me. I suggest that the danger which he postulates is wholly fanciful. I was not just saying it for the sake of saying it. I think that there has been no more vocal, articulate, and sincere apostle of the lay magistracy than I, and I certainly have not the intention of using the power to any appreciable extent.

But my experience—and I suspect the noble and learned Lord's experience—has been that every time you put a statutory limit on anything which is as rapidly increasing as crime is at the moment, sooner or later you find that you are up against the Statute. I appreciate that he has provided in his Amendment that there should be an Order in Council and not an amending Act if the statutory limit is to be raised. But I really would ask the Committee to consider this aspect, that almost every week we are adding to the burden on Parliament by providing for the Affirmative Resolution procedure, so that every time you want to do anything you have to add to the burden of both Houses by a separate debate on the subject. I should have thought that this is a burden that we could, on the whole, afford to do without, and not lay it upon our successors, and this is the advice which I have received.

Now may I turn from the general to the particular. I would ask the noble and learned Lord to consider this: as I have said I have absolutely no intention of altering the system in the Provinces or for that matter in London. In London, during my lifetime at the Bar, the system has moved in favour of the lay magistracy and not against it. When I first went to the Bar, apart from licensing and juvenile courts (or whatever they were then called), all the London work was done by stipendiaries. It is now very largely done by lay magistrates—I think to the infinite advantage of the public, and also the taxpayer. I have now 39 London stipendiaries in post, and I have a maximum limit of 40, so I am right up against the limit.

I should like to take this opportunity of explaining what I am doing. I have been using them more and more as deputy judges in the Crown Court, and sometimes appointing them to the Crown Court. The reason for that is partly because they are so good at it and partly because there was a time, not very long ago, when a stipendiary magistracy was considered to be a dead end. I do not want it to be considered a dead end; I want the stipendiaries to be able to think of themselves as potential judges of the Crown Court if their work is successful, so that they do not get into the stale feeling that sometimes a man does if he has reached the end of his career at a comparatively early age. I am sure that this has been a good plan.

So far as the figure 60 is concerned, I should have thought that probably would have met my needs, or the needs of my successors, for quite a considerable period of time. But just look at where you are getting; what the noble and learned Lord proposes is that there should be 60 for the metropolitan area alone to be appointed without going to Parliament, and only 18 for the whole of the rest of England and Wales. We know that there are historical reasons why there are a lot of stipendiaries in the Metropolis and practically none anywhere else. It may be that that situation can continue indefinitely; I do not know. It seems to me, however that there is no logic about this kind of arrangement though as I say I see absolutely no reason why I should alter the balance at the moment. This is because as I chose to say outdoors last week—and I shall be saying again when we come to a debate next week about the Criminal Law Revision Committee—my chief preoccupation at the moment is not to impose a number of unwanted judges on a lot of eager and efficient lay magistrates; my chief preoccupation is to find lawyers of adequate calibre to undertake the posts that I have got available. I think that I have made more than 100 appointments to the Crown Court in one way or another and certainly approaching 200 part-time recorders.

The effect of what I have done in the last three years is to diminish the practising Bar at the top by something like 10 per cent. of its total numbers in whole-time appointments, and possibly another 10 per cent. in part-time appointments. I have really imposed a great burden upon the profession, and the danger is not that I shall be making too many but that I shall not find enough to make. I say frankly that I do not see any radical difference in principle now between the great urban areas in the Provinces and the Metropolis, although, as I say, I have no intention of altering the balance as regards the figure of 18 for the Provinces which is, I should have thought, spectacularly low as compared with the proposal of 60 for the Metropolis.

I must tell the Committee that there were 18 provincial stipendiary magistrates 20 years ago. It is true, as the noble and learned Lord has rightly said, that there are now only 11; but the reason for there being only 11 now is the reason I gave on Second Reading; namely, that provincial cities have been extremely reluctant to petition the Lord Chancellor, or the Crown, for the appointment of a stipendiary, and very often have not done so when a stipendiary would have been extremely useful. The reason for this is very largely because they did not want to pay a salary which was determined as to its size by the central Government. We are, by this Bill, undertaking to pay the salary, and I should have thought that it was a reasonable piece of judicial administration to determine whether or not a stipendiary post, that we shall pay for, is required.

The other reason why the Provinces are rather slow to petition is that sometimes local benches of magistrates have, I think rather fanciful, fears that one is trying to supersede them in their work, which is far from the truth. It is true, as the noble and learned Lord said, that I said on Second Reading (and it is the case) that my present intention is to appoint one or two, which is well within his proposed maximum. Therefore, in practice, I do not suppose that I should be much constricted. However, I should expect to find at some future date that we might get back to 18, which was, after all, the figure of 20 years ago when the work was much less onerous and far less in volume. They are extremely valuable characters to have in the Provinces. It is for this reason that I intend, as I said on Second Reading, to extend their jurisdiction from the boroughs, where alone they are now allowed to operate, to the whole of the new counties. There are cases which are better taken by a professional, and to have them there is a convenience. It may have special value in Wales too, for rather a different reason, which I will not enter into at the moment.

The noble and learned Lord can rest assured that I am not receding from what I said on Second Reading. I do not regard this as a slur on myself or any future Lord Chancellor; but the advice that I have is that this Amendment is not right, and I wonder whether the noble and learned Lord wishes to press it in the light of this expression of opinion, which I believe is the best view that can be formed.

6.59 p.m.

LORD GARDINER

This is not a particularly crowded Committee. May I say first that I made it plain on Second Reading of the Bill that, in so far as the Bill provides that in future stipendiaries can be appointed by the Lord Chancellor otherwise than on a petition by the local authority, I entirely agree with him. It is in accordance with the spirit of the Report of the Royal Commission on Assizes and Quarter Sessions and of the Courts Act. So far as Circuit judges are concerned, I have no objection to however many are appointed. It does not really affect at all the justices of the peace.

The noble and learned Lord said that my fears were wholly fanciful. I can only assure him that, after making careful inquiries, the justices of the country as a whole are very concerned indeed about the Bill on this point. The Magistrates' Association is always in a little difficulty, because the noble and learned Lord the Lord Chancellor is their President. But I can assure him that I know there is very great concern indeed among the justices. Under my proposals, any Lord Chancellor would be entitled to appoint an additional 28 stipendiaries; that is the equivalent of 1,400 justices less. All I am saying is simply this: that I do not think we ought to go further than that towards replacing justices by stipendiaries without coming to Parliament—not necessarily in a Bill; I appreciate that that can be a nuisance and I have provided against that by enabling the point of further increases to be brought forward in a Statutory Instrument.

I shall of course carefully consider what the noble and learned Lord the Lord Chancellor has said. It may be that we can consult together and consider what sort of figures would be acceptable to him, because my sole desire (and I accept everything he has said throughout about his own personal view about the justices, which I know is the same as mine) is to prevent some future Lord Chancellor who, perfectly bona fide on a question which is a matter of opinion, might consider it would be a very good thing if we replaced the justices by stipendiaries, from being able to do so—as he would be able to do if this Bill passed in its present form—without further reference to Parliament. Meanwhile, and before the Report stage of the Bill, I will of course consider most carefully everything which the noble and learned Lord has said.

THE LORD CHANCELLOR

I am grateful to the noble and learned Lord. Of course I shall be only too glad to consult with him, as I always am.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clauses 3 to 7 agreed to.

Clause 8 [Judicial salaries]:

7.2 p.m.

THE LORD CHANCELLOR moved Amendment No. 2: Page 7, line 16, leave out ("ordinary").

The noble and learned Lord said: Perhaps I may discuss Amendments Nos. 2, 3, 4, 5, 6, 11, 12, 14, 15, 16 and 18 together. They all relate to the omission of the word "ordinary". There is a technical reason for this Amendment: it is to repair a mistake of construction which occurred in my Office. It makes no difference to the substance of the Bill and, unless I am pressed, I do not particularly want to go into the detail, which is quite intricate. So I beg to move.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

With the consent of the Committee, may I take Amendments Nos. 3, 4, 5 and 6 together? They are all the same. I beg to move.

Amendments moved— Page 7, line 17, at end insert ("other than the Lord Chancellor"). Page 8, line 3, leave out subsection (6).—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 8, as amended, agreed to.

Clause 9 agreed to.

Clause 10 [Retirement of higher judiciary in event of incapacity]:

THE LORD CHANCELLOR

I beg to move Amendments Nos. 5 and 6.

Amendments moved— Page 8, line 19, leave out ("ordinary"). Page 9, line 12, leave out subsection (5).—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 10, as amended, agreed to.

Clauses 11 and 12 agreed to.

Clause 13 [Appointment of deputy district registrars of High Court and deputy county court registrars]:

THE LORD CHANCELLOR moved Amendment No. 7:

Page 10, line 21, at end insert— ("(3A) Section 29(1) of the County Courts Act 1959 (which provides that no officer of a county court shall, either by himself or his partner be directly or indirectly engaged as solicitor or agent for any party in any proceedings in that court) shall not apply to a deputy county court registrar appointed under this section; but a deputy district registrar or deputy county court registrar so appointed shall not act as such in relation to any proceedings in which he is, either by himself or his partner directly or indirectly engaged as a solicitor or agent for any party.")

The noble and learned Lord said: This is another purely technical Amendment. It is to restore what is, in effect, subsection (6) of Section 11 of the Administration of Justice Act 1956, which this Bill would repeal. As it stands, and without the Amendment, Clause 13 of this Bill contains nothing to prevent a deputy district registrar acting as such in a matter in which he or his partners may be professionally engaged. I beg to move.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This Amendment is consequential. I beg to move.

Amendment moved— Page 10, line 43, after ("subsections") insert ("(3A)").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 13, as amended, agreed to.

Clause 14 agreed to.

Clause 15 [Commencement and transitional]:

THE LORD CHANCELLOR

This Amendment corrects a misprint to which I referred in my Second Reading speech. The year "1974" should be read, instead of "1973" as in the print. I beg to move.

Amendment moved— Page 12, line 6, leave out ("1973") and insert ("1974").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 15, as amended, agreed to.

Clause 16 agreed to.

Schedule 1 [Justices of the peace (consequential re-enactments and amendments)]:

THE LORD CHANCELLOR

This Amendment corrects a faulty reference. Paragraph 12 in Part IV of Schedule 1 refers to an Amendment made by Section 58 of the Criminal Justice Act 1972 to Section 27 of the Justices of the Peace Act 1949. The Amendment was in fact made by Section 61 of the 1972 Act, and this is put right by the Amendment which I now propose. I beg to move.

Amendment moved— Page 19, line 13, leave out ("58") and insert ("61").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 agreed to.

Schedule 3 [Pensions of higher judiciary]:

THE LORD CHANCELLOR

Amendments Nos. 11 and 12 cover the same point about the word "ordinary" which we dealt with earlier. Amendment No. 13 will be slightly different. I beg to move.

Amendments moved—

Page 20, line 35, leave out ("ordinary").

Page 20, line 36, after ("Wales") insert ("other than the Lord Chancellor").—(The Lord Chancellor.)

On Question, Amendments agreed to.

THE LORD CHANCELLOR moved Amendment No. 13: Page 21, line 26, leave out ("as Lord Chancellor").

The noble and learned Lord said: This Amendment and Amendment No. 17 on line 32 are both drafting Amendments. The words to be left out make no difference to the sense of paragraph 3 of Schedule 3 (which defines the relevant service for the purpose of calculating the pensions of the Higher Judiciary) because the Lord Chancellor is, by virtue of Section 2(1) of the Supreme Court of Judicature (Consolidation) Act 1925, a Judge of the High Court, which is part of the Supreme Court, and he is covered by the references in the paragraph to a Judge of the Supreme Court. The Amendments are therefore consequential on the removal of the definition of the words "ordinary judge" from paragraph 4 of Schedule 3. With that explanation, I beg to move.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

If I may deal with Amendments Nos. 14, 15, 16, 17 and 18 together, they are all concerned with points I have already explained. I beg to move.

Amendments moved—

Page 21, line 27, leave out ("ordinary")

Page 21, line 30, leave out ("an ordinary") and insert ("a")

Page 21, line 31, leave out ("an ordinary") and insert ("a")

Page 21, line 32, leave out ("as Lord Chancellor")

Page 21, line 37, leave out paragraph 4.—(The Lord Chancellor.)

On Question, Amendments agreed to.

Schedule 3, as amended, agreed to.

Schedule 4 [Repeals]:

THE LORD CHANCELLOR

This Amendment and the next one, No. 20. correct another faulty reference. There is no paragraph 20(8) in Schedule 2 to the Administration of Justice Act 1964, but there is a sub-paragraph (8) in paragraph 20 of Schedule 3 to that Act, and this is the sub-paragraph which should be repealed. I beg to move.

Amendments moved—

Page 26, leave out line 23.

Page 26, line 26, at end insert ("and (8)").—(The Lord Chancellor.)

On Question, Amendments agreed to.

THE LORD CHANCELLOR moved Amendment No. 21: Page 28, line 30, leave out ("subsections (4), (5) and") and insert ("subsection (4), in subsection (5) the words "and provisional district registrar", subsection").

The noble and learned Lord said: This is a drafting Amendment to make good a mistake in the drafting of the Bill. Section 84(5) of the Supreme Court of Judicature (Consolidation) Act 1925 provides as follows: The power to make appointments to the office of district registrar and provisional district registrar shall be vested in the Lord Chancellor". The repeal Schedule to the Bill, which is the Schedule we are now discussing, Part VI, inadvertently repeals the whole of this subsection, thus removing the Lord Chancellor's power to appoint district registrars. The Amendment puts this right by limiting the repeal to the reference to provisional district registrars, this office being abolished by Clause 13 of the Bill, which provides for the appointment of deputy district registrars by the Lord Chancellor. I beg to move.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

This Amendment concerns additional repeals which are consequential on the Amendments to Clause 13, Nos. 7 and 8. which we have already passed. I beg to move.

Amendment moved— Page 28, line 40, at end insert—

("In section 29, the subsection (1A) inserted by the Administration of Justice Act 1970.
1970c. 31. The Administration of Justice Act 1970. Section 46.")

—(The Lord Chancellor.)

On Question, Amendment agreed to.

Schedule 4, as amended, agreed to.

House resumed: Bill reported with Amendments.