DISTRICT COURTS (SCOTLAND) BILL [H.L.]

HL Deb 05 December 1974 vol 355 cc308-57

3.52 p.m.

House again in Committee on Amendment No. 3.

Lord BALERNO

The Amendment relates to stipendiary magistrates for the lower courts, the new district courts in Scotland. The importance of the Amendment is that, while almost all the lower court work has in the past been done, so far as the towns, cities and boroughs are concerned, by what is known as the borough courts, it has been quite obvious that the load on the borough courts as well as on the justice of the peace courts in the country areas has been steadily increasing and that we have a mechanism in Scotland which has already been used for court work with great effect. Glasgow has used a system of stipendiary magistrates—full-time magistrates—which enables its courts to catch up with the backlog of, mostly, petty crime. I am on the Committee which advises the Secretary of State on problems of the justices of the peace of Scotland and, during the past few years, we have looked into this matter with very great care. It was only after considerable deliberation over the years that we came down strongly in favour of a substantial increase in the number of stipendiary magistrates.

This is quite essential. There is nothing very difficult in the Amendment. It merely encourages an increase in the number of stipendiary magistrates where they are required. That the stipendiary magistrate should be appointed by the Secretary of State means that it will be possible to have an even level of justice in these courts throughout the whole of Scotland. There is no reason why the local authorities should feel insulted in this matter because, as I understand it, it will still be possible for them to make requests for the appointment of a stipendiary magistrate in those areas where there is an increase of crime or a shortage of justices.

I have a second and perhaps more cogent reason for supporting the Amendment: at present, new industries are developing in Scotland. Most of these are centred on oil and the new industrial areas are developing more particularly in the North-East of Scotland—Aberdeen, the Grampians and in Ross-shire round Nigg Bay—though they are also coming to other parts on the West coast. I will not say these developments bring in undesirable characters, but they do bring in labour from other parts of the world, using the word "world" with due care and meaning. There is no reason to anticipate that the incoming labour to these parts of Scotland will be any more law-abiding than the existing population, and there is some reason for apprehension that there will be more crime, not merely because there will be more people but because they will be living in conditions which may be conducive to crime. Therefore, I think it is important that it should be possible, if the need arises, to have more stipendiary magistrates and that they should be appointed by the Secretary of State so that the service may be uniform throughout the country.

3.55 p.m.

Lord MOWBRAY and STOURTON

I believe my two noble friends have said everything which needs to be said upon this matter. I strongly endorse what they have said. This is a flexible provision which will enable the Secretary of State to use the new powers where necessary, as explained by my two noble friends.

3.56 p.m.

Lord HUGHES

I am afraid that there is some misunderstanding on the part of noble Lords opposite as to what exactly the Amendment would do. It is certainly not in the category implied by the noble Lord, Lord Mowbray and Stourton, who said that this was a flexible provision.

First of all, in reply to the question asked by the noble Earl, Lord Selkirk, Glasgow is not asking for an additional stipendiary magistrate: what Glasgow has done is to ask for authority to appoint a stipendiary in place of one who has retired. Therefore, the number will remain as it is. The effect of the Amendment which is under discussion would be that the benches of the district courts were manned exclusively by stipendiary magistrates. It would not, as the noble Lord, Lord Balerno, said, mean only increasing the number of stipendiaries where they are required. That is why I say that it is not more flexible. It will make stipendiaries the basis upon which the courts have to be manned, because it goes on to except those areas and circumstances in which the Secretary of State directs that lay justices may act on the bench.

Whatever view one may take of the relative merits of stipendiary and lay magistrates, I cannot advise your Lordships that an Amendment on these lines could possibly be acceptable. It seems to be contemplated that the normal position in the district court would be that one would have a stipendiary magistrate and that justices would be used only in special circumstances or in special areas—for example, in rural areas. I do not think that it is appreciated just how much work a stipendiary magistrate does. The one thing which is quite clear from the workload of those stipendiaries who have been operating in Scotland is that there are very few areas in Scotland where the workload falling on the lower court would be of an order to justify the appointment of a stipendiary. There could be a few cases where, by joining together a number of districts, a stipendiary might be appointed to cover those districts, but I feel that that would be going back, on the court side, to the sort of objections which many of us had when the reform of local government was going through, that far too large bodies were being created. It would be quite retrograde, having regard to the present feeling in relation to the system now coming into operation in Scotland, that we should create these large areas, the only justification for which would be to enable a stipendiary to have a proper workload.

Even if one ignored all the practical difficulties which would result if the Amendment were accepted, the resulting system of courts would be unacceptable in principle. Successive Secretaries of State, even of the same Party, do not necessarily adopt the same criteria in dealing with matters of this kind. One year lay justices might be sitting in every district court, whereas in the following year they might be allowed to sit only in a minority of districts. No doubt successive Secretaries of State would act sensibly about these matters, but what must be avoided is the uncertainty which is created by the mere existence of such powers of direction. Justices might well be loath to undergo extensive training if they were aware that at any time their services could be declared to be no longer required. Moreover, persons who were very suitable for appointment as justices might be reluctant to accept the office because of uncertainties about whether or not they would be able to sit on this bench.

I would draw your Lordships' attention to the fact that the provision contained in Clause 1(1) of this Bill, whereby the Secretary of State may direct that a district court need not be set up in a particular district, does not suffer from the grave defects of the present Amendment. First, I ask you to note that the power can be exercised only on or before 16th May 1975, and not thereafter. Where a district court is established on 16th May 1975—and this will be so in the vast majority of districts—then such a court will continue, as the Secretary of State has no power to decree otherwise. Secondly, if or when he is invited to exercise his power prior to 16th May 1975, the Secretary of State is required to have regard to the likely lack of business for such a court. His power is not therefore an unfettered one. To ensure that from 16th May 1975 Scotland has a nation-wide system of lower courts which can be properly established and whose future composition is not left uncertain, I must advise your Lordships that this Amendment should not be accepted.

Lord BALERNO

I really cannot follow the noble Lord, Lord Hughes, in this matter at all. He thinks that there will not be sufficient work for a stipendiary magistrate. In certain areas that is so: of course there will not be, and the lay magistrates will deal with the work very well indeed. But I would draw your Lordships' attention to one of the most important provisions of this Bill, which is that for the first time in Scotland legal aid is being introduced into these lower courts. Directly you have legal aid you will have cases being contested, and automatically the workload will go up, and it will go up quite considerably. The Scots are a litigious people, and if we can get our litigation free of charge we shall hope to get full benefit out of this new system; so there will be a substantial increase in the amount of work in these district courts, especially following the introduction of legal aid. I mentioned during my Second Reading speech that in one month in Edinburgh there were something like 280 cases, in which 250 people were found guilty right away—that is, they pleaded guilty. The entire tradition of the lower court is, "Plead guilty; otherwise you go to prison."

Lord HUGHES

I am very sorry: it may be that the noble Lord, Lord Balerno, does not understand my argument. I cannot possibly accept the point of view that he is putting forward. It may be that the Scots are as fond of litigation as he says, though I think perhaps they are not so awkward on this point as the noble Lord is himself. I hope he does not find occasion to appear before the district courts—I have no doubt he could keep them going for a long time on his own without any assistance from other people—but the fact is that up to the present, even in such large centres of population as my home town of Dundee, which the town clerk used to describe as being "third in population, and second in commercial importance", it has never been found necessary to suggest having a stipendiary magistrate; the load has been capable of being easily handled by eight bailies; and in Aberdeen the workload was handled by six bailies. There is nothing to suggest that it will be necessary for the expeditious carrying out of business to create stipendiary magistrates in the areas in which there is no foreseeable demand or no foreseeable likely need. Nothing that the noble Lord, Lord Balerno, has said even remotely makes me think there is justification for this Amendment.

The Earl of SELKIRK

I must say that the answer of the noble Lord, Lord Hughes, is not really very satisfactory. He says there is nothing to suggest this need. May I just read what the Grant Report said—I wonder whether he has seen it?— There is an urgent need for relieving the pressure both on the sheriff courts and on the district courts. The noble Lord has made no suggestion as to how this might be done. He says that the Secretary of State would be sensible, and I agree. I do not see why the Secretary of State should misuse the powers which are here suggested. I want to make it very clear that the responsibility for the expeditious carrying out of justice is a proper one for the Secretary of State and not for the district. I think the Secretary of State must accept that responsibility: it is his business to do so. If the noble Lord says that this is not the best way of doing it, I am prepared to accept that. But would he undertake to see whether there is a better way of bringing the responsibility of the Secretary of State more clearly into this Bill which deals with the whole area of district courts? If that could be done, I should be very glad to withdraw this Amendment and see whether or not we can devise something to meet this point more fully than hitherto. This is not a Party Bill. It is one in which we are all interested. We all want to see the administration of justice speedily carried out, and to a good standard, throughout the country.

Lord HUGHES

I am hoping that we are now getting to the point where the noble Earl is going to withdraw the Amendment. I am quite willing to look at the question of how further stipendiary magistrates may be appointed. The position is, however, that any local authority which wants to have a stipendiary magistrate can ask for one: there is nothing to prevent that. Quite obviously, any Secretary of State who is anxious—and it is also the purpose of this Bill—to see the administration of justice improved in Scotland will not refuse the appointment of a stipendiary magistrate where obviously there is a workload for him, and the people in the district wish it. After all, lay magistrates are not anxious to kill themselves because of an overload of work in district courts, if there is the possibility that they can be relieved, as in Glasgow, of part of the work by a stipendiary magistrate. As things stand at the moment it would be quite wrong to set up, as this Amendment proposes, a situation where you have almost to prove that you do not need a stipendiary magistrate before you can have the administration of justice conducted by a layman. Up to now the position has been the other way about: you have to show that there is need for a professional judge being appointed, and where that can be done no obstacle will be put in the way.

I am quite willing, between now and the next stage, to discuss this matter further with the noble Earl; but I should like to make it perfectly clear that in such a discussion I am not in any way committing either the Government or myself to the acceptance of so radical a principle as this Amendment suggests, and which tends to turn the whole thing the other way round. I should also like to remind the noble Earl that last Thursday we passed an Order making provision for changing procedure in relation to the sheriff courts. The sheriff courts have not been ignored at the present time. I would also remind your Lordships that there is a degree of urgency about this because the reform adopted in the Local Government (Scotland) Act left certain things undone, and they were to be the subject of further Government action. This is one of those things, and we have to get a system which will operate as from May of next year. In a longer term look at the relationship between the sheriff courts and other courts there may well be room for changes of this kind which might well be a factor in encouraging the appointment of stipendiary magistrates, if that were to be a method of relieving the burden on the sheriff courts. That is not the problem that we are at present facing in district courts.

I am, as I say, quite willing to discuss the matter, but I would not wish to mislead the Committee into believing that I am going any way towards accepting what we believe is the erroneous principle behind this Amendment, and which, on the way it has been spoken to by the noble Earl, Lord Selkirk, and the noble Lord, Lord Balerno, is not in fact what they are wanting. They are not asking for this to be made the main system. The noble Lord, Lord Balerno, said that it was to be a way of getting more stipendiary magistrates appointed. The Government have no objection to that, where it can be shown to be needed, but it is quite wrong to go about it in this particular way.

The Earl of SELKIRK

The noble Lord has done nothing about the sheriffs. All he has done is to create fewer, but full-time, sheriffs. That has nothing whatsoever to do with the congestion of the courts, and this Bill does nothing to relieve that congestion. I do not think that the administration of justice in this sense should be left wholly to the local authority. I shall develop that later. If the noble Lord were prepared to talk on the basis of bringing in the Secretary of State with a greater initiative to ensure the speedy and full disposal of justice I should be very glad to withdraw this Amendment and have discussions to see what we can do.

Lord HUGHES

I am prepared to discuss the matter in the interval with the noble Earl. I cannot commit myself as far as he says, but I am not asking him to commit himself to taking no further action. If he is not satisfied with the result of the discussion, obviously he has a remedy in a further Amendment—I would hope of a different character—at the next stage. If the worst came to the worst, he could put this Amendment down. So while he has nothing to lose by discussion, I have nothing to gain by promising something which I may not be able to carry out. All I am prepared to do is to talk, and if it produces a satisfactory result then it will be useful; if it does not produce a satisfactory result, it will be a waste of time.

The Earl of SELKIRK

We have a common interest here. I recognise that the noble Lord will seek that, too. In the circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.14 p.m.

Lord MOWBRAY and STOURTON moved Amendment No. 4: Page 2, line 31, at end insert ("with a maximum of three")

The noble Lord said: On behalf of my noble friend Lord Selkirk I beg to move this Amendment. On Second Reading the noble Lord the Minister said that Clause 2 was designed to give maximum flexibility and he acknowledged that single magistrates in burgh courts were quite often the rule, and one or two justices is the tradition in those courts. This Amendment has a very small compass. Its purpose is merely to stop what has occurred occasionally in some parts, not particularly of Scotland but other countries as well. Too many magistrates may influence the feelings of a jury, since there can be too much discussion and argument. We think that a maximum of three is adequate. I should like to hear what the noble Lord has to say about that, and I beg to move.

Lord HUGHES

I find it difficult to disagree with the sentiments behind this Amendment. In the normal course of events I think three magistrates would be perfectly satisfactory, and that when the justices committee were drawing up rotas this is what they would endeavour to do. Strangely enough, I have been subjected to two conflicting pieces of advice about the number of magistrates. I have been told by an eminent lawyer that there ought to be either one or two magistrates, but never an odd number other than one. I am also told that the law as it stands is that if you have two magistrates and they disagree on the question of guilt, the accused person must get the benefit of the doubt and be declared to be not guilty. Unfortunately, the law does not condescend to express a view on what happens if, having agreed that he is guilty, one being a tough magistrate wants to send him to prison, the other being a lenient one says that a fine will do. How we get out of that difficulty, I do not know. It seems that the balance of argument is perhaps against having the even number, because obviously you cannot have a casting vote to decide on these matters. The probability is that three is the likely number.

Nevertheless, we would hope that the noble Lord will not press the Amendment, because we do not think it is desirable to put on a restriction of this kind particularly in the early stages. It may well be that magistrates, for instance, who have been undergoing training would want to sit with magistrates of greater experience, and in the early stages we might find that we have more than three magistrates. I certainly hope that we never reach the situation to which the noble Lord, Lord Balerno, referred, of sitting on a bench of seven or even more magistrates. We have undertaken some investigation and obviously it would be wrong to say that it does not happen, because the noble Lord, Lord Balerno, has told us that it has happened in his experience. But we can say it is very unusual, and in most cases the justices have sat in numbers not exceeding three. There will be a certain amount of administrative guidance given in these matters, and I can assure the noble Lord that we will certainly not encourage sittings of large benches of magistrates, other than perhaps on the occasions of which I have spoken where there are one or two more. We should not encourage six, seven or eight people to sit on a bench to decide whether so-and-so had been guilty of being drunk and disorderly the night before. So I can give the assurance that very likely what the noble Lord is asking for in this Amendment is what will take place, so perhaps he will be content to let the matter rest there.

Lord BALERNO

There is one point which the noble Lord, Lord Hughes, made on which I think he must be corrected, He seemed to think it was possible to have justice done with an even number of magistrates. I think in the interests of justice you must have an uneven number, and that would go down with most of the practising lawyers and the Law Society who have been talking about the matter during the past month. Whatever the number of lay justices on the bench, it would be an uneven number.

Lord HUGHES

I do not know whether my accent is getting more and more difficult, but I cannot understand why the noble Lord, Lord Balerno, thinks as he does. I emphasised the fact that it was desirable to have an odd number. I pointed out that the law lays down what takes place if there is an even number, and I said that I did not think that was a good thing. Perhaps the noble Lord, Lord Balerno, and I can have another set of talks to see whether we can get on a common basis of the use of common language.

Lord MOWBRAY and STOURTON

I am glad that my noble friend has been satisfied, and in view of what the Minister has said about positive guidance being given to the courts I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 [Jurisdiction and powers of district court]:

On Question, Whether Clause 3 shall stand part of the Bill?

4.20 p.m.

The Earl of SELKIRK

I am given to understand that in the Summary Jurisdiction (Scotland) Acts from 1954 to 1967 there is a "tariff" between the amount of the fine and the length of the period of custody. If I am correct in this, the period of custody for a £100 fine is three months. That would mean the amount of punishment which could be inflicted by the district court is greater than at present. I suggest that it should not be; I think 60 days is probably enough. Would the noble Lord be good enough to look at this to see whether the increase to £100 would extend the period of imprisonment?

Lord HUGHES

I cannot answer that question off the cuff. I suspect that the noble Earl is right. The whole basis for changing the limit from £50 to £100 is to take account of the change in the value of money. We have not yet reached the point where inflation is also attacking time.

Clause 3 agreed to.

Clauses 4 to 6 agreed to.

Clause 7 [Clerk of district court]:

Lord MOWBRAY and STOURTON moved Amendment No. 7: Page 5, line 22, after ("area") insert ("who shall be an advocate or solicitor qualified to practice on his own account").

The noble Lord said: This Amendment is to ensure that only a properly qualified person will be able to act as clerk to the court. In these courts, as has been pointed out, we may not always have fully qualified people on the bench and, in the interests of justice, it should be seen that the clerk of the court is a fully qualified person. He is a man of great importance and his advice is sought. I beg to move.

Lord HUGHES

I think I may be helpful here. The basis on which the Bill was drafted was to follow the pattern, which has become more common in legislation relating to local government in recent years, not to give any more instructions to local authorities about the type of person they might employ than is necessary. But there are exceptions; in certain cases it is laid down that professional qualifications will be required for the occupants of particular posts. I said earlier that the authorities had indicated that this is what they would do. I think, having regard to all that has been said, there can be no disagreement about the need for legally qualified people, particularly in the case of the clerk of the district court. It must be accepted that the clerk of the court is someone primarily concerned in the administration of justice rather than as an official concerned with the local authority administration or procedures. I understand that Amendments Nos. 7 and 8 are related. If the noble Lord will withdraw this Amendment and not move Amendment No. 8, I will undertake to consider tabling a suitable Government Amendment at the next stage.

Lord MOWBRAY and STOURTON

I am very grateful to the Minister for what he said. On this understanding, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clause 8 [Court houses for district court]:

4.23 p.m.

The Earl of SELKIRK moved Amendment No. 9: Page 5, line 37, after ("available") insert ("to that extent").

The noble Earl said: I should like to take Amendments Nos. 9 and 10 together. These are drafting Amendments and I put them down for the purpose of making it clear that district court buildings can be used for other purposes. As the clause reads at present, it looks as if they may be used only as district courts. However, they could usefully be used for other purposes. The Amendments also provide that if they were to transfer to another building this would be fully within the terms of the Statute. I beg to move.

Lord HUGHES

Clause 8(1) places a general duty on the district or islands council to provide suitable and sufficient premises for the district court. In the early stages of the new system the existing court buildings will almost certainly be used by the district courts. In any district area there will probably be several premises used by the existing courts and it will be for the local authority to determine which accommodation should be used. In local government reorganisations some of the existing accommodation will go to the regional councils and some to the islands and district councils. Subsection (2) requires the regional islands or district authority, without prejudice to subsection (1), to make premises used for the purposes of the existing courts available for the district court.

In most areas there will probably be several premises used for the burgh and justice of the peace courts. Some are at present used for court purposes only for short periods. After 16th May 1975 the court work will for the most part be concentrated in each district in one centre and it is therefore unlikely that all existing accommodation will be required. It would not be reasonable to include a limitation restricting future use to the same extent as at present since circumstances will have changed. With good will I do not think that difficulties will arise.

We therefore feel that as the Bill stands we will achieve exactly the point the noble Earl has made, that the buildings should be available for the best use to be made of them, provided there is satisfactory provision of buildings for use as district courts. I hope he will not press the Amendment.

The Earl of SELKIRK

If the noble Lord is satisfied that courts can be used for other purposes, I will not press the point. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clauses 8 and 9 agreed to.

Clause 10 [Existing justices and magistrates]:

4.27 p.m.

The Earl of SELKIRK moved Amendment No. 11: Page 8, line 1, leave out subsection (2).

The noble Earl said: We now come to the Part of the Bill which deals with the appointment of magistrates. To some extent subsection (2) of Clause 10 is, I presume, dealing particularly with what I call the transitional stage. I am not certain what the subsection means, but as I read it it seems to me that anyone who happens to be a bailie on 15th May automatically becomes a justice of the peace on 16th May. I do not understand why the procedure under Clause 9 should not be followed. Why should he not be made a justice of the peace in the ordinary course of events with the restrictions that that implies; the use of the Great Seal, residential accommodation and possibly going on to the supplementary list? Why is it set out in an entirely different way in this sense? Would it not be simpler to take this clause right out and let those bailies who are suitable, or who want to continue, be appointed to any commission area, in the ordinary way under Clause 9? This is the correct way to proceed and, in the circumstances, is a better way. There should be no delay in appointing these magistrates; the procedure cannot take long. To have magistrates all on the same basis is a very much more suitable method. I beg to move.

Lord HUGHES

I cannot pretend that the Bill would collapse if this subsection were taken out, and if, in fact, we were to do what the noble Earl has suggested it would be quite possible for arrangements to be made for every one of the people who would have automatically become justices by virtue of this provision to be appointed a justice and to carry on. The reason for this provision is that in some places, particularly in the burghs, not all the existing bailies are justices of the peace. I checked, for instance, on my home town and found that exactly half were justices and half were not. I want to make it perfectly clear that I am not talking about Dundee, because this could be construed as a reflection on particular individuals. But in some cases it will be found that some of the best magistrates are not justices at the present time because they are younger men and the tendency under the existing system is that the older people have a better chance than the younger ones of being appointed justices of the peace. That may or may not be a good thing but that is the way it has tended to work.

So there is an advantage in doing this in that one at least starts off on the basis that the experienced people will be immediately available. I have made it clear that the training facilities will be under way before 16th May—and I may mention that when my wife travelled down to London yesterday she informed me that there were two letters in the post, one for her and one for me, asking us whether we were willing to undertake training as magistrates so that we could do our duties properly as from 16th May. I do not know how she is going to answer, but I know what I am, and I do not expect to be very busily engaged as a magistrate after 16th May. However, there is bound to be a certain interval, and this seemed to be an appropriate way of dealing with the situation. In the discussions with them, this is what the local authorites felt strongly should be done.

It is a long time ago since I fought an Election with the Party opposite in Scotland on the basis that the own hall knows better than Whitehall—and "Whitehall" is interpreted as covering Dover House and St. Andrew's House also. We are now seeking to say, when we receive this strong advice from the local authorities, that it is the wrong way round; that Dover House and St. Andrew's House do know better than the local authorities. The numbers involved are very small. There are some 5,000 justices in Scotland at the present time, and the number who would come in on this basis is a very small fraction of that total. I hope therefore that the noble Earl will find that, although there are obviously points to be made both ways, it is not worth while taking out this subsection. I have a definite suspicion that the local authorities will feel so strongly on this matter that, if we take out this subsection, another place will be invited to put it back in again, and that is a waste both of their time and of your Lordships' time. I therefore invite the noble Earl not to press this Amendment.

Lord BALERNO

I cannot see why we are making it so complicated. Let us have one uniform system for Scotland. That is the whole purpose of having the district court for the whole of Scotland, instead of the old burgh court and the old justice of the peace court. What is the difficulty of making every magistrate a justice of the peace if he so wishes to become a justice of the peace? There is plenty of time. The noble Lord, Lord Hughes, admits that he has just received a letter inviting him to continue as a justice of the peace on 15th May next—

Lord HUGHES

Not to continue as a justice of the peace but to take training to qualify to sit on the bench. I will continue as a justice of the peace but not necessarily acting as a magistrate.

Lord BALERNO

I think that if the noble Lord reads his letter a little more carefully he will see that he is also given the opportunity of going on to the retired list of the justices of the peace, which allows him to continue signing papers. As that letter has just gone out, it is surely within the wit or the ability of the Scottish Office within another month to send out a parallel letter to every magistrate of every burgh who is not already a justice of the peace asking him whether he wishes to be appointed a justice of the peace and pointing out to him the requisition for training. Of course we all understand that there will be difficulties in completing the training by 15th May, but what we want to know is whether they are willing to undergo the training. So I do not see that the difficulties which the noble Lord, Lord Hughes, has been making about accepting my noble friend's Amendment are justified.

Lord HUGHES

All I would say in connection with that is that there is nothing complicated about it; this is, in fact, the simplest matter. If this provision becomes law these people automatically become justices of the peace. To have to write to them individually and say: "Do you wish to become a justice of the peace?" and then, by implication, to agree to appoint each one who says: "Yes, I so want and I am prepared to act" is a much more complicated and expensive way of doing it than the procedure provided by these three and a half lines in the Bill.

The Earl of SELKIRK

The noble Lord, Lord Hughes, is always very persuasive, but he has not, with great respect, given the slightest reason why it should be done this way at all. Here is a person becoming a statutory justice of the peace whether or not he wants to. Nobody asks him whether he does; he just becomes one. There is a perfectly good system laid down in great detail under the previous clause. Does this man go on the commission of the peace? Does he remain a justice all his life? Is he on exactly the same basis as every other justice? I do not feel strongly about this matter. This is just a transitional stage, and while it may help the Government, we always want to help the Government if we possibly can and we are not worried about that; but the noble Lord might look at this point to see whether it is worth having this, frankly, rather ridiculous little procedure.

Lord HUGHES

I must say that I am impressed by those last remarks. I should dislike to think that we were forcing justice of the peace status on somebody who did not want it.

The Earl of SELKIRK

Exactly.

Lord HUGHES

Perhaps we could look at it on the basis of seeing whether we could add some words to the provision along the lines suggested. I cannot make a promise—it may be difficult to do—but perhaps we could word this provision in such a way that anybody who did not want the appointment would have the right to say, "No. I do not wish to be a justice after 16th May. When I cease to be a bailie, that is the end of it so far as I am concerned." Could we look at it on the basis of amending the wording so that there can be no question of people being conscripted to the justices' court and all will be volunteers? Would the noble Earl withdraw on that basis?

The Earl of SELKIRK

Yes, I am very happy to accept that. I personally think it would be much better to debate this point under Clause 9. In response to what the noble Lord said, I am quite happy to beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clause 11 [Ex officio justices]:

4.39 p.m.

The Earl of SELKIRK moved Amendment No. 12: Page 8, line 30, leave out subsections (2) to (8).

The noble Earl said: We now come to a more serious part of this Bill. It is a great pity that the Government did not put out for discussion a White Paper saying what they were going to do in this connection. This was done by the previous Government and the Bill was not carried through. Not only that, but my information is that there has been no serious discussion at all between the Government and the profession in Scotland about the contents of the Bill. Clause 11 was, I think, a last minute thought and it was popped into the Bill for reasons which—I will not say I find hard to guess, but which I will not enlarge on at the present time. The crux of this clause comes in subsection (2) which states: Each local authority may nominate up to one third of their members to serve as ex officio justices for their area …".

This is a most extraordinary way of appointing justices. I find that it is quite misconceived, and I wonder how it is that this ever came into the mind of the Government. We have abolished burghs. We seem now to be anxious to set up burgh magistrates for burghs which no longer exist. I wonder just why this is being done. As I see it, this is no more than the tail end of feudal institutions which, in point of fact, should have disappeared quite a long time ago. When the burghs were set up, probably in the reign of Alexander or James IV, they had three functions, Royal burghs, burghs of barony and burghs of regality, and their three functions were defence, certain economic privileges and administration. In those days, administration included the judicial courts, just as in its early days Parliament was also a judicial court. We have travelled a long way since then, and this is simply not in line with the 20th century. I do not think that any other country in the world allows its bench to be elected by an assembly. In the United States of America they have elections at large, and that is one way of doing it. I do not approve of it very much but I would much rather have elections at large than I would have an assembly appoint its own magistrates.

It is a peculiarity of Scotland that we have allowed this system to carry on for a good deal longer than probably is absolutely wise, in view of the fact that people like Montesquieu and others have stressed the importance of the separation of powers. One sees it, for instance, in the official name of "Edinburgh", or that of any other burgh. The Lord Provost, the magistrates and councillors of the City and Royal Burgh of Edinburgh have joined together from ancient time the administrative and the judicial functions. Today they should be separated. Indeed, I think it is essential that they should be separated. How do local authorities appoint their magistrates? May I describe to your Lordships how it is done. The noble Lord, Lord Hughes, will not, I think, disagree with what I say. Before the town council meets, the caucus comes together and the chairman says, "We have three bailie vacancies. What shall we do? Shall we keep the lot, or shall we let the other Party have one, or possibly two"? It is a pure Party appointment and something which, to my mind, tarnishes the Bill.

I wonder how these nominations are made in other burghs. I have a fairly definite idea that my experience is similar to that of virtually every other burgh. In Scotland we do not believe that something of this kind should be continued in the new Bill. This is not a continuation of the existing system; it is a new system of district court which we are introducing in this country and I think that it is quite wrong that anything of this kind should be carried out. I am not saying this in a spirit of criticism, although there was criticism at Second Reading regarding the bailies' court; I feel that they have carried out a tremendous job over many years. However, it is not work which councillors ordinarily should do. They are elected to administer a city; they are not elected as judges or magistrates. That is not what they are there for. Under the system which is proposed in the Bill, they will be elected and will be responsible to their electors; they will have to be nominated by the council; and they will need the approval of their Party. I think that this detracts greatly from the value of the Bill, a great deal of which is common ground to us and which we like; but this is a sheer anachronism which I think should be taken out of the Bill. I beg to move.

4.45 p.m.

Lord BALERNO

I wish to support my noble friend in his Amendment, but I will not enter into the legal argument. Instead, I will give you one very cogent reason for the Amendment. One of the virtues of the Bill is that justices of the peace should be trained, and naturally that training will take quite some time; it could quite easily take up to ten or twelve lectures. Indeed, the recommendation is that there should be a weekend course for justices of the peace. If he is not already a justice of the peace what district councillor will have the time to spare to take this instruction? As an elected member, one never knows how long one is likely to remain in that position. It is not as if one remains in Office for life.

If we delete these subsections, it will still be perfectly possible for a county council to say to the Secretary of State that so-and-so of its membership wishes to be a justice of the peace and is prepared to be trained. His name will come up for consideration and the odds are that they will be only too glad to have him. But that a district council should nominate one-third of its members for the period that it is in Office and should then nominate perhaps a completely different third for its next period seems to me to make a nonsense of the whole idea of training. For those reasons, as well as for the reasons which my noble friend has led, I ask your Lordships to support this Amendment and to delete these thoroughly objectionable proposals.

Lord MOWBRAY and STOURTON

May I support my two noble friends in this Amendment. Politics and justice are not normally associated. If this Amendment is passed by your Lordships, it will remove politics from these courts. As my noble friend Lord Balerno has said, people do not elect their councillors primarily as magistrates. It happens more and more frequently today that councillors are elected for political reasons and, human nature being human nature, too often they tend to elect members of their own Party to these Offices. I hesitate to use the word but I shall. Tammany Hall springs to mind as a possibility of what could come about if this clause were abused.

I am sure that the noble Lord, Lord Hughes, will assure us that most of the councillors who are elected are good, honourable men who would intend nothing of that kind. I do not doubt that to be a true statement. Nevertheless, there is a way open here for that kind of situation to arise. I do not see why the Clause 9 legislation for appointing justices cannot be used as my noble friends have said. Obviously there will be councillors or eminent men in an area who are suitable to act as magistrates. All right; use the Clause 9 procedure. Why should there be this power whereby local politicians can put 100 per cent. of the magistrates on the bench? May I support, therefore, my two noble friends in what they have said.

Baroness MACLEOD of BORVE

May I support my noble friends in this Amendment. I am afraid that I am a Sassenach magistrate. Probably, therefore, I should not speak on this Amendment. However, I expect that the noble Lord is well aware that several years ago ex officio members of the local authority were prevented from being ex officio magistrates. They were able to be magistrates after their terms of mayoralty in their local authority, if the Lord Chancellor, in his wisdom, appointed them. But nobody is an ex officio magistrate, and that has been the position for, I think, five years.

May I make the further point that if one has local authority representatives, there are many cases coming before the bench where the local authority member has to retire purely because he knows too much about the case and also about the people involved. I can foresee a situation where you might well be left with very few magistrates to serve on the bench for that reason. I support all my noble friends who are against subsection (2) of Clause 11. I think for the local authorities to have the prerogative of appointing up to one-third of the bench is utterly wrong. It certainly would not work in this country as all the magistrates are appointed by the Lord Chancellor.

Lord HAILSHAM of SAINT MARYLEBONE

May I be forgiven for adding a word to this discussion? I have been a Member of Parliament of one House or the other continuously since 1938, and I think this may be the first occasion during that period of time on which I have ventured to utter a word on Scottish affairs. My qualification for doing so is two-fold: in the first place, I am half-American and I know something of my mother's State where the local bench was in fact directly elected, largely on Party lines. Secondly, during the period in which I was Lord Chancellor for nearly five years, it fell to my lot in England and Wales, minus the county of Lancashire, to appoint all the justices of the peace on the advice of advisory committees.

I wonder whether the Government really are wise in what they are now proposing to do, which is a sort of indirect election by local authorities of people holding judicial office. When you do justice as a magistrate, it is important that you should not be afraid that your own position will be called into question if you make an unpopular decision. That is absolutely vital to being a good magistrate. The weakness of any form of election, whether direct or indirect, is that the magistrate or the judge will lose his job if he makes an unpopular decision. When I lunched with the local judges in Tennessee I was given a card by one of the judges. To my astonishment it was a poll card; it was not a visiting card, and it said, "Vote for me". Quite obviously, one can see what would happen if such a person gave an unpopular decision. One has to recollect that in all contested litigation you become unpopular with one Party or the other and an unpopular decision may well lead to a campaign against you and may cause you to lose your job.

I recognise of course that in an indirect election where you are elected by the county council, this may operate in one of two ways—possibly less indirectly than in the case of a direct election, but it can still operate. Supposing you make an unpopular decision—and, as I say, some decisions are less popular than others; some arouse more public excitement than others. To begin with it may affect your position on the local authority when the next election comes. It may be said: "That is the man who did so and so when I was up before him". Indeed, when you are a judge you have to make a decision which will adversely affect somebody's financial interest or the interest of some powerful trade union or powerful minority. It must affect your chances of re-election to the local authority. Or vice versa, you speak up in the local authority against a policy. You may be in a minority or a majority, but you make enemies, and when the time comes to re-nominate the justices of the peace that conduct will be held against you. In other words, it is not possible to be a just judge and to be elected and to be liable to be re-elected on popular grounds, direct or indirect.

Of course I do not want to say a word against the personnel of local authorities. When, as Lord Chancellor, I was appointing justices for England and Wales they were among the most fruitful sources that were drawn upon for nomination by the advisory committees, but they did not depend for their jobs upon election by their local authorities. They depended for their jobs upon nomination by the independent advisory committee and by appointment by the Lord Chancellor, and in practice they would not be dismissed by the Lord Chancellor except for judicial misbehaviour or incapacity. That is the opposite of what is proposed here.

I was disturbed to hear what my noble friend Lord Selkirk said, because he was describing the matter from experience in Scotland. I have some experience in England of the working of local authorities in other spheres, although in this sphere happily we are not faced with such a situation. I know of two systems, both of which are bad and I do not know which is the worst. One is for the Party Whips of the majority Party to nominate the whole of, say, the governors of a school, and the other is for the Party Whips of the two Parties to carve them up on Party lines, and this is what goes on in local authorities. This is from my knowledge of England and Wales. The idea that judicial offices should be parcelled out in this way seems to me to be absolutely repugnant to our whole idea of justice. Of course it may be true that the Scots have no original sin. We know that many of them think so. They are all justified by faith, I think, North of the Border, but if they are in any way similar to the English I ask the noble Lord to think again.

4.57 p.m.

Lord HUGHES

It is certainly a new experience for me to find a former Lord Chancellor intervening in a Scottish debate, but it is none the worse for that. The noble and learned Lord will forgive me if I say that I find myself in sufficient difficulty in dealing with the legal aspects without following him into the theological fields into which he was seeking to divert me at the finish. I would also say that it is perhaps not the best qualification for considering the situation in one particular set-up to make comparisons with what occurs in other places. For instance, I thought the noble and learned Lord, Lord Hailsham, was quite wrong when he was describing these duties that we are talking about as "jobs". They are not jobs; they are voluntary duties which people are undertaking and for which they do not receive payment, other than out-of-pocket expenses. They do not get any allowances as councillors; it is the other way round, and I think this is the subject of a later Amendment tabled by the noble Earl.

I also wish to point out to the noble Baroness, Lady Macleod of Borve—and although she said that she is a Sassenach, anyone with that name, whether acquired by marriage or by birth, has no need to apologise for intervening in a Scottish debate—that it was not a third of the bench that they are given the right to appoint. It is a third of their number, and this perhaps is the right point at which I should emphasise that in comparison with some 5,000 justices in Scotland there would be some 400 people who will be appointed if this remains part of the Bill. So it is a very small part of the total.

I find myself in an exceedingly surprising position. Most noble Lords on the Benches opposite find themselves members of a Party whose title is "Conservative", and whenever a title is applied to the Party of which I am a member, we are not supposed to be innately Conservative. Yet I find that here am I, seeking to continue a system which has worked completely satisfactorily in Scotland, not for decades, and not just from the institution of the burgh court, because in the Second Reading debate the noble Lord, Lord Balerno, said that the burgh court was only a creation of the nineteenth century. But that was merely a change that took place in that particular Act of Parliament. We have done a little research on the matter and the earliest Act of the Scottish Parliament in which we can find a reference to the bailies is 1535. How much further back they have gone beyond that I do not know, but the fact is that throughout all this period this system has worked in Scotland and one of the justifications for refusing to make changes is that changes should not be made unless it is desirable to have change. This is a doctrine which I find myself having no difficulty to accept in this connection.

I was a member of a local authority for 27 years. For only two of those did I occupy the post of bailie. I was a Lord Provost for six years. One of the privileges of being a Lord Provost is that one manages to dodge magisterial duties, so I did not sit on the bench for those six years, although in the smaller burghs the Provost tends to take his turn on the bench along with the bailies. At no time during my period of membership of a local authority, and at no time since I ceased to be a member of a local authority—and that now goes back 14 years—have I ever heard any demand from any quarter of Scotland, inside or outside the local authority, for the abolition of the system of lay justices as practised in the burghs. In fact, the request for this is not a last minute thing. It was referred to by the Secretary of State as far back as 15th July, and we came into office only in March.

The system is requested by the local authority associations, and it was emphasised in these requests that the view put forward was irrespective of politics. All Parties engaged in local authority activities in Scotland wished a system of this kind to continue. But I would remind your Lordships that still in local government there are considerable parts of the country where the political system does not operate in local government, and whether they were the bigger areas where it does operate, where the parties work, or in the rural areas where it does not, the same position prevailed—they wished to have a continuation of, or something resembling, the present system.

During the passage of the Local Government Bill last year, one of the points which the then Secretary of State, Mr. Gordon Campbell, was anxious to perpetuate was that the chief magistrate in the four cities should continue to use the title of "lord provost" and that is in the Bill. We amended the Bill during its passage through this House, to ensure that the title of "provost" would also be available for use in district councils if it was the wish of the district council that the chairman should be known by the term "provost". They have all taken the decision; some have decided that the term "chairman" should continue, some decided for "convenor", some have decided on the term "provost". The feeling has been that in those districts largely based on the former burghs, they have chosen the title "provost", so it shows there is anxiety to hang on to things which have certain merit.

One thing which has been under consideration is whether there was any way of preserving the title of "bailie" which, notwithstanding what the noble Lord, Lord Balerno, said on Second Reading, is still held generally in high repute. I am told, for instance, against what the noble Lord, Lord Balerno, said, that there is a considerable number of cases heard in these courts, and only the few such as he quoted ever got any mention in the Press. I have spoken of my own experience. In the two years that I was on the bench, in the succeeding elections I never had raised as a possible reason for not reelecting me to the council any decision which I took on the bench.

Lord HAILSHAM of SAINT MARYLEBONE

There could be no reason for not re-electing the noble Lord.

Lord HUGHES

I should like to think that the noble and learned Lord, Lord Hailsham of Saint Marylebone, is right, but obviously he does not know Dundee. I should think that at least one-third of the population in any given time would be able to give reasons why I should not be re-elected, or as to why I should even exist It was never a source of difficulty. After all, we are not comparing like with like. The powers of the district court, as the powers of the former bailie's court, are limited, and the opportunity for making oneself either popular or unpopular by sitting on either bench is very limited indeed. I am quite certain no one from the home State of the mother of the noble and learned Lord is likely to emigrate to Scotland for any pickings he will get from being nominated as a member of the justices court of a district council.

The noble Lord, Lord Balerno, raised a point which has to be answered, because it seems to me to be a reasonable one. The noble Lord said that the district council will have a great deal of work to do. He asked whether it will be likely or possible for people to take the extensive training required, and then put in the time required on the bench. It has been possible for people to undertake the duty of a magistrate, which does not cover any training at this stage, on the basis that they were all-purpose authorities in the cities. The district councils will be a mere shadow of the burghs compared with the burghs, much less than the large burghs and cities. They are not education authorities, social work authorities or strategic planning authorities. The only major function they have will be as members of the Housing Committee. I should suspect that one of the reasons why the local authorities are so anxious for this to be done is because they want to ensure that those people who take election to a district council are continuing to have a worthwhile job to do. This is something which they would regard as being worth while.

I do not want to go on much longer, because if there is anything I hate (as most Scots do) it is waste. I know perfectly well that the longer I stand here, the more I am wasting my breath and your Lordships' time, because that side of the House has already decided to divide on this Amendment. All that remains is for me to say that this is a fundamental part of the Bill. We have commitments to the people of Scotland to legislate along these lines.

I advise your Lordships: do not follow the example which I have just attempted to do, in that I am wasting your time and my own breath. Do not waste further time by taking this out of the Bill, because if you do, it is the intention of Her Majesty's Government to reinstate it in another place. I have no doubt whatsoever, notwithstanding the fact that I have been told you have the major support of Miss Winifred Ewing, that the Government will be able to put into this Bill what the people of Scotland have shown by their views they want. But it is the privilege of your Lordships' House to give the other place the chance to think they had been totally wrong in this matter. I am merely telling your Lordships what our intentions will be: that we regard this as a fundamental part of the Bill, and would consider ourselves to be failing in our duty if we did not attempt to reinstate it in another place. Having said that, I am quite prepared to encourage my small part of the House to follow your large part of the House, but not into the same Division Lobby.

Lord BALERNO

I have listened to the apologia for burgh courts, but I cannot understand why they have not been continued if they are so wonderful as the noble Lord, Lord Hughes, has made them out to be. I cannot understand why every burgh in Scotland has not been allowed to continue this legal system; that is to say, if the system is as wonderful as the noble Lord, Lord Hughes, makes it out to be. As he said, he believes the people of Scotland want to continue the burgh courts. This is not a bad thing. But I do not think the people of Scotland care two hoots about this. The people who do are a few local authority representatives, people who like to be called a bailie. As the noble Lord, Lord Mackie of Benshie, said in the Second Reading debate, "once a bailie, always a bailie". There is no sound argument adduced along those lines by the noble Lord. The proposal of one-third of the elected representatives of an authority is neither fish, fowl, nor good red herring. I remind your Lordships of the quotation I made of a lawyer in Scotland who I am sure expressed the feelings of the great majority of the lawyers there, that the burgh courts are a blight on our society.

The Earl of SELKIRK

The noble Lord, Lord Hughes, has done his best. It is an absolutely indefensible clause by any conceivable standard. He has said he is continuing a system. If he reads Lord Cooper's Introduction to the Legal History of Scotland, he will find it was decaying at the end of the seventeenth century. This system really should have gone out long ago. It is a tribute to the standard set by our bailies that it has worked as well as it has; I give them full credit for having worked against a very bad system, and having done it tolerably well. The noble Lord said he is not aware of any demand, and I will tell him why. It is because he has not listened; he has refused to see anybody; not a member of the profession went to talk to him. In any case, the Bill was published only about three weeks ago and nobody saw that clause until then. So he simply cannot say that there is no demand.

Lord HUGHES

Then I will correct my statement. I will say this; nobody outside the legal profession has asked for this.

The Earl of SELKIRK

Probably nobody outside the legal profession read the Bill. One point is perfectly clear. This is not fundamental to this Bill. This is simply a little pimple which was pushed in at the last moment, and the main feature of this Bill rests as it is. If any councillor wants to become a justice, let him go through Clause 9; that is the proper way to do it. I think we must divide on the point.

Lord ERROLL of HALE

Before we divide, I should like to intervene briefly on a very important point put by the noble Lord, Lord Hughes. He said there was really no point in the Committee dividing because the matter would be put right in another place. I think that is a very dangerous doctrine to be accepted by your Lordships. We should divide when we think it is appropriate to do so. What may happen in another place is for that other place to decide, particularly as the Bill has not yet been to the other place. To suggest that we should not waste time dividing because some juggernaut in some other part of the building is going to over-rule us is not, I suggest to the genial Lord Hughes, the way to treat your Lordships.

Lord HUGHES

I did not say it would not be right. I said it would be a waste of time from the point of view of altering the Bill. We regard this as a fundamental part of the Bill. No one knows better how to operate a juggernaut than the noble Lord who has just criticised

Resolved in the affirmative, and Amendment agreed to accordingly.

it. I remember, as a member of a local authority, being on a deputation when he was a Minister at the Board of Trade and we got "juggernaut" then under his very efficient operation. He need not lecture me on how to operate a juggernaut. I know what another place will want to do on this; I know what the Government want to do. I am advising your Lordships that you can certainly do what you will, and it is quite obvious that you are going to do it; but I am saying that it will be a waste of time in the end because it will not stick.

5.14 p.m.

On Question, Whether the said Amendment (No. 12) shall be agreed to?

Their Lordships divided: Contents, 82; Not-Contents, 41.

CONTENTS
Aberdare, L.	Essex, E.	Moyne, L.
Airedale, L.	Ferrers, E.	Northchurch, B.
Aldenham, L.	Glenkinglas, L.	Nugent of Guildford, L.
Alexander of Tunis, E.	Goschen, V.	Oakshott, L.
Amherst, E.	Grenfell, L.	Ogmore, L.
Amherst of Hackney, L.	Grimston of Westbury, L.	Onslow, E.
Arbuthnott, V.	Hailsham of Saint Marylebone, L.	Rankeillour, L.
Auckland, L.		Reay, L.
Balerno, L.	Hankey, L.	Redesdale, L.
Belstead, L.	Hanworth, V.	Reigate, L.
Berkeley, B.	Henley, L.	St. Aldwyn, E.
Bessborough, E.	Hereford, V.	St. Helens, L.
Birdwood, L.	Hornsby-Smith, B.	Saint Oswald, L.
Boyd of Merton, V.	Hylton-Foster, B.	Sandys, L.
Bradford, E.	Killearn, L.	Selkirk, E. [Teller.]
Braye, L.	Lauderdale, E.	Sharpies, B.
Colwyn, L.	Lloyd of Kilgerran, L.	Somers, L.
Colyton, L.	Long, V.	Strange, L.
Cottesloe, L.	Lothian, M.	Strathcona and Mount Royal, L.
Courtown, E.	Lyell, L.
Cowley, E.	Macleod of Borve, B.	Strathspey, L.
Denham, L.	Mancroft, L.	Swansea, L.
Derwent, L.	Merrivale, L.	Teviot, L.
Drumalbyn, L.	Meston, L.	Thomas, L.
Ellenborough, L.	Milverton, L.	Tweedsmuir, L.
Elliot of Harwood, B.	Monck, V.	Vernon, L.
Elton, L.	Mowbray and Stourton, L. [Teller.]	Waldegrave, E.
Emmet of Amberley, B.		Young, B.
Erroll of Hale, L.

NOT-CONTENTS
Amory, V.	Hale, L.	Phillips, B.
Archibald, L.	Harris of Greenwich, L.	Popplewell, L.
Beswick, L.	Henderson, L.	Royle, L.
Birk, B.	Hughes, L.	St. Davids, V.
Brockway, L.	Jacques, L. [Teller.]	Shepherd, L. (L. Privy Seal)
Burton of Coventry, B.	Janner, L.	Shinwell, L.
Castle, L.	Llewelyn-Davies of Hastoe, B.	Strabolgi, L. [Teller.]
Champion, L.	Lovell-Davis, L.	Summerskill, B.
Crowther-Hunt, L.	McLeavy, L.	Wells-Pestell, L.
Donaldson of Kingsbridge, L.	MacLeod of Fuinary, L.	White, B.
Elwyn-Jones, L. (L. Chancellor.)	Mais, L.	Williamson, L.
Fisher of Camden, L.	Melchett, L.	Winterbottom, L.
George-Brown, L.	Morris of Grasmere, L.	Wootton of Abinger, B.
Gordon-Walker, L.	Pannell, L.

Clause 11, as amended, agreed to.

Clause 12 agreed to.

Clause 13 [Disqualification of Solicitor who is a justice]:

5.22 p.m.

The Earl of SELKIRK moved Amendment No. 13: Page 9, line 40, afer ("area") insert ("on which such solicitor is sitting").

The noble Earl said: Clause 13 deals with the position of justices of the peace who happen to be solicitors. It disqualifies them from practising in the area in which they are solicitors, regardless of whether they are on the bench, and their partners must not practice before the courts of which they are a justice. I think that this goes too far, and I should like the noble Lord to look at this.

What he is saying is that neither the partner of a justice, nor one of his staff, may directly or indirectly take any part in a case which will come before a court in a commission area in which one of the partners is a justice. I think that this is going too far. I suggest that they should not come before a court in cases in which the justice is sitting on the bench. That would obviously be wrong. But to say that one of the members of the staff—not a partner—cannot take part directly or indirectly seems to me to be going much too far. While I certainly would not suggest anything that would make it easy for justices to plead before their colleagues, I think that this is perhaps suggesting that there is a conspiracy with justices in an area and that they will all try to help each other, and it is quite unnecessary to make a suggestion of this sort. I do not know what "directly or indirectly" means. Does it mean that you may not ask the advice of any member of the staff on a case which might come before the justices in an area? If it means that, I think that it is unduly harsh.

The second point is that if you put in this rule it will become increasingly difficult to get solicitors who may be suitable to become J.P.s. In some areas the choice of suitable people may not be very great. It is for this reason that I suggest that the disqualification extends to all cases where a partner of a firm, or one member of a firm, is sitting on the bench. When he is not sitting, it does not seem to me that it is essential to impose a disqualification. I beg to move.

Lord HUGHES

This is not a proposal which has been brought forward for the first time in this Bill. This is merely a continuation of the law as it has existed for 68 years. These are the provisions which are in the existing law in Section 3 of the Justices of tie Peace Act 1906, in Section 4 of the Justices (Scotland) Act 1856—I have not gone back in my reference to the years, because that applies only to the ex-officio justices, and that will no longer apply as a result of the Bill—and in Section 9 of the Justices of the Peace Act 1949, which makes an exception for justices on the supplemental list.

Its effect is to allow solicitors to be appointed as justices, but to preclude them from practising directly or indirectly, personally or through their partners, before any court on which their fellow justices in the same area sit. This is a sweeping disqualification, but it removes any possibility of the appearance of impropriety in the actings of the justices as a body, or of the individual justice as a solicitor. It has been the law both of Scotland and of England for a very long time, and there has been no complaint about its operation. In fact, solicitors have regarded this as a basis of protection for themselves, and it would definitely be a retrogade step to seek to change this after so long a period of perfectly satisfacory operation in both countries.

The Earl of SELKIRK

I wonder whether the noble Lord can answer two questions? Does this cover stipendiary magistrates, and do the previous Acts cover staff as well as partners?

Lord HUGHES

I am sorry, but I cannot give an answer. My first thought is about whether a stipendiary magistrate would be operating as part of a legal practice, having partners and so on. I should have thought that he would be a full-time justice, and therefore it would not apply to him.

The Earl of SELKIRK

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

Clause 14 [Courses for justices]:

The Earl of SELKIRK moved Amendment No. 16. Page 10, line 5, leave out "may" and insert "shall".

The noble Earl said: I hope that this Amendment will encourage the noble Lord to see that the schemes for training for magistrates really take place. I beg to move.

Lord HUGHES

I mentioned on a previous discussion that it is 13 years since I came here, and I think I would be fairly comfortably off if I could collect a £1 for every time that this argument had come forward. Every Government, without exception, resists the use of the word "shall" when the Bill uses the word "may". Once again I must follow the precedent and ask that it should remain. However, because of the way in which the noble Earl put it forward, I think I can satisfy him that it is not necessary to make this amendment for the purpose he has in mind. In the case of training schemes and courses for justices under Clause 14, there is no question but that these will be introduced, and that justices will be required to accept training appropriate to their experience.

The reference to training in Clause 15(2)(d) would not have been inserted in the Bill if the Government had not so intended. This is one of the justifications for the use of the word "may". If the Government did not intend to use it they would not insert it at all. We are inserting the reference with "may" with the intention that this is what the Government are likely to do. Indeed, the outline of the training scheme has already been discussed with the Central Advisory Committee and justices of the peace, to which the noble Lord, Lord Balerno, was good enough to refer in favourable terms during Second Reading. I can assure the noble Earl and your Lordships that these training schemes are to go ahead. I hope that with that assurance the noble Earl will be at least as content as were all his predecessors on the argument that "may" should remain and that "shall" should not go in.

Lord AIREDALE

I believe that such invariable practices of Governments, to which the noble Lord referred, are not without exception, and that the noble Lord sitting beside him may remember that in the Bill which set up the Office of the Director General of Fair Trading I succeeded with an Amendment exactly like this one which said leave out "may" and insert "shall".

Lord HUGHES

That must have been on the one occasion when it was difficult for the noble Lord to give a satisfactory assurance about what "may" would do.

The Earl of SELKIRK

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord MOWBRAY and STOURTON had given Notice of his intention to move Amendment No. 17:

Page 10, line 9, at end insert— ("(2) Justices of the peace, unless otherwise qualified, will be required to attend the courses referred to in subsection (I) above before acting as a member of the district court.")

The noble Lord said: This Amendment is not the same as my noble friend's last Amendment, and while speaking to it I must thank the Minister for having sent a full letter concerning the Government's intentions on this matter. I know that the Government intend that justices should do these courses, but I ask the Minister and the House whether it would do any harm to have my proposed improvement to ensure that untrained magistrates did not sit in the courts in a judicial capacity. If this proposal were accepted there is one point which I would ask to be changed in the Amendment. I would take out the word "qualified" and insert "suitably experienced" instead because we thought "qualified" was too vague.

The DEPUTY CHAIRMAN of COMMITTEES

The noble Lord's Manuscript Amendment to the Amendment will insert the words "suitably experienced" for "qualified".

Lord MOWBRAY and STOURTON

Yes, that is so. I beg to move.

Amendment moved—

Page 10, line 9, at end insert— (2) Justices of the peace, unless otherwise suitably experienced, will be required to attend the courses referred to in subsection (1) above before acting as a member of the district court."—(Lord Mowbray and Stourton.)

Lord HUGHES

The object of the Amendment is one with which I cannot possibly say I did not sympathise because I do. But we think it is rather a clumsy way of trying to ensure that there is appropriate training. It is intended that no justice should adjudicate until he has received instruction suitable to his experience. The situation is, however, very complex and there is comparatively little time in which to complete preparations for the justices courts to open for business on 16th May 1975. At that date there will be available for court service burgh magistrates with varied experience, serving justices, some with court experience and others with none, and newly appointed justices, including those nominated by district councils. That is my prediction as to what will take place. The objectives will be first to ensure a smooth transition from the existing courts to the new courts and, secondly, to give all new justices who sit in new courts at least the minimum instruction according to their needs.

It is proposed to issue a scheme of basic instruction together with a memorandum of guidance on how to use the scheme of instruction in the varied circumstances of each area. This will be considered first by the appropriate officers of district councils and then by the justices committee as soon as they are appointed. There are some matters—in particular legal aid—on which all justices, even the most experienced, will require instruction before they sit in the new court. But the scheme of instruction is not simply a matter of lectures; it will include experience of attending court, of discussions with other justices and visits to institutions.

It must be left to the justices committee in each area to determine what their colleagues need and in what order the various needs can be usefully met. For instance, a total prohibition such as the Amendment proposes on sitting in court until courses have been attended would make it impossible to include sitting on the bench as an observer as part of the syllabus. This is generally agreed to be a most valuable experience which illuminates what is said in lectures given both before and after it. It is not intended simply to throw the scheme of instruction out to the Justices Committee and leave them to their own devices. We intend to keep in touch with the local arrangements, to help the Justices Committee to make contact with universities and other educational establishments which might provide lecturers and other facilities, and to ensure that ideas developing successfully in one area are taken up in others.

As regards sanctions against individuals who may be unwilling to comply with these arrangements, there may be three stages, where necessary, in preventing justices of the peace, who have not completed adequate training, from sitting on the bench. First, the justices committee, who have to approve the duty rota of justices under Clause 16(1)(b) will not put any name on the rota until they are satisfied that a justice has received training appropriate to his experience. No doubt this will work smoothly and amicably in most cases, but if any justices should persist in attending court when not qualified then the Secretary of State may transfer their names to the supplemental list under Clause 15(2)(d) and so disqualify for judicial functions any justice who neglects training. The Secretary of State would normally take this action on the advice of the Justices Committee. Thirdly, in an extreme case, the Secretary of State's general power of removal under Clause 9(2) might be invoked. This will apply to ex-magistrates who become justices under Clause 10 (2) and ex officio justices under Clause 11, as well as appointed justices.

To sum up, it is intended to give the scheme of training teeth, but especially in the short period before 16th May it will be essential to work flexibly, with the goodwill and common sense of the local justices, and statutory compulsion to accept training would increase the difficulties of dealing suitably with the great variety of local and individual circumstances. I hope that what I have said, and what I wrote to the noble Lord, Lord Mowbray and Stourton, is sufficient to assure him that he and I are thinking on exactly the same lines, and that it is more likely to work satisfactorily without the Amendment than it would do if the Amendment were incorporated in the Bill.

Lord MOWBRAY and STOURTON

I appreciate what the Minister has said, and I fully appreciate that time is not completely on our side in this matter. Bearing in mind the Government's intentions and the noble Lord's words, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

Clause 15 agreed to.

Clause 16 [Justices' Committees]:

5.38 p.m.

The Earl of SELKIRK moved Amendment No. 18:

Page 12, line 3, at end insert— ("( ) The sheriff principal of the sheriffdom in which the commission area is situated shall by virtue of his office be chairman of the justices' committee.")

The noble Earl said: I have tried to make one point all the way through the discussion; namely, to bring together the two branches of the criminal court, the sheriff court and the district court. This is a very positive attempt to do just that. I would say it was a real step towards what Lord Grant and his Committee speak of—flexible machinery for deciding which summary court should take which cases. I propose that the sheriff principal, who quite recently we made full-time—therefore he is full-time with the sheriff—should have supervision of all criminal jurisdiction in his sheriffdom. He could do this best by being a member of the justices' committee and presiding at their gatherings. He could do a great deal there; his experience would be of very real value to them. If I may give precise examples of the subjects which are here referred to, he could advise the local authority on the administration of the district court, on adequate training arrangements and on the administration of justice in the district court. In all those matters he could be of great value to them, and add to the knowledge and experience of the district court. But it will, I believe, bring together and serve to integrate two sets of courts which are fairly wide apart and which should supplement each other—and it is in the long-term interests that they should do so.

This is really quite a small step, but I think it is an important one. In this Bill we are providing for the take-over of the prosecution of all cases by the Lord Advocate, and we strongly support that. I think the step we propose is a second one which can be taken; it would bring a little closer the benches in both the sheriff court and the district court. I hope the noble Lord will be able to do this, because I think it is an important step which could have a long-term effect. It does not really involve anybody in any work. I am not suggesting that the sheriff should necessarily be there, but that he has access and can preside when it is convenient for him to do so. I beg to move.

Lord HUGHES

May I say right away that I hope very much that the senior members of the judiciary—the sheriffs, the sheriffs principal and the High Court judges—will take an active interest in the work of the justices and make available to them the benefit of the wisdom and experience which they have accumulated while sitting on the bench, but the proper place for this will not be in a justices' committee. The justices' committee will in many ways be a business committee—assisting and advising the local authority concerned on any matter relating to the administration of the district court, approving the duty rota of justices and making arrangements for training. In the busier districts, the justices' committee are likely to have a good deal of work to do and be required to sit relatively frequently.

While the sheriff principal, because of his experience in the administration of the sheriff courts, might be expected to be a source of advice and guidance on the effective running of courts, he would not have sufficient personal knowledge of the district courts to make him the most suitable chairman. Your Lordships must remember that he is not to be, as at present, an ex officio justice of the peace; so what we would in fact be doing is to bring about the situation that when the sheriff principal chose to come along he would, while not being a member of the committee, automatically become its chairman. I do not think the justices' committee are likely in all cases to take kindly to having a chairman imposed on them from outside.

Under the new arrangements the sheriff principal will be kept fully occupied in the sheriff courts within his sheriffdom. Within each sheriffdom there will be, on average, about nine or ten justices' committees, and it would be quite impossible, even if it were desirable, for him to become actively involved in the business of that number of committees. I do not know whether the sheriffs principal have been consulted about this Amendment. I suspect that they have not, because I do not think that they would regard this as the most effective way in which they could help the work of the justices' committee. Therefore, I am sorry I cannot encourage your Lordships to accept this Amendment.

Lord BALERNO

I think this Amendment is vital. In Scotland we suffer, and have suffered, from the fact that there has been no legal supervision of these lowly courts, the burgh court and the justices of the peace court. That is why the injustices in the burgh courts which I related in my Second Reading speech—and it is no exaggeration to use the word "injustices"—have continued; and the bailie or the judge in the burgh court has continued with his almost, one might say, illegal practices, whereby it was known that if so-and-so was sitting on the bench you had better plead guilty because you would then be just fined and be away, and that would be that, whereas if you pleaded not guilty—

Lord HUGHES

I must ask the noble Lord to allow me to intervene. This repeated slander of bailies—because it is no less than that—I really cannot allow to go unchallenged. To suggest that this is common practice in burgh courts, even in Edinburgh—because that was the particular place to which the noble Lord was referring—I think cannot possibly be supported by any evidence, and it certainly is not the sort of thing that I have ever heard suggested outside the remarks of the noble Lord, Lord Balerno.

Lord BALERNO

The evidence to which I refer is the evidence of a solicitor practising in the court, and I have no reason to doubt that he would be supported by other solicitors practising in the burgh court of Edinburgh. As I said before, if your Lordships do not believe the individual scandals which I have mentioned, I would draw your Lordships' attention to the very fact that so few people appearing in the burgh court at Edinburgh plead other than guilty. That is what I feel is so important. Now there must be some form of legal oversight over these lowly courts, over the district court. In England there is a pretty close oversight, I understand, of the justices of the peace courts by the Lord Chancellor himself; and this is a plea, really, for some similar oversight in Scotland. While it is the fact that the sheriffs principal are now full-time officers, I disagree with the noble Lord, Lord Hughes, very much in saying that they will not have the time to pay attention. They will hear if there are scandals in the lower court, and they will be able to take the appropriate action. I do not say that the occasions when there are scandals in the lower court are more common than when there are not scandals, but they do exist, and I think that some measure of oversight would give the people of Scotland more confidence in these new district courts; that is, if they knew that somebody was keeping a kindly legal eye upon them. Therefore I support this Amendment.

Lord HUGHES

In this connection, on the principle that people are likely to be classified along with the worst of their kind, may I suggest that if there was a scandal about a justice or about a number of justices in particular areas the people who would have the most direct need to have the matter dealt with would be the other justices, who are liable to be accused of being one of the same kind. I said that I would be surprised if this was a matter which was acceptable to the sheriffs principal themselves. I would suggest that the Amendment be withdrawn at this stage and the opportunity taken to consult sheriffs principal as to how they would react to such a duty being imposed upon them.

Baroness PHILLIPS

As an Englishwoman, I hesitate to intervene in this debate because, quite frankly, the more I listen to debates on Scottish law the less I understand about it. I should like to say only this to the noble Lord, Lord Balerno, as a member of what he describes as a humble court—I think he said the lowest court in England—that is, as a magistrate. We certainly elect our own chairman and our own deputy chairmen, and would resent very strongly any interference in this privilege, which is a very old one. I am a little confused when he says that we are under the jurisdiction of the Lord Chancellor. This is certainly so, but I cannot recall an occasion when the Lord Chancellor has intervened in the way in which I imagine the sheriff would intervene under this Amendment.

The Earl of SELKIRK

I must say straight away that of course I have not consulted sheriffs principal because there are only two. It has been impossible to consult them, and I have not done so. What the noble Lord has not faced up to is the need to integrate the criminal courts. This Amendment gives the sheriff a status with the district courts, and I think he should have that status. The noble Lord says that the sheriff principal would not have anything particular to offer. I should have thought he had an enormous amount to offer about, for example, adequate training arrangements. This is the very subject on which he could give a great deal of advice. Then there is the administration of justice in the district court. Is that not precisely a matter on which the sheriff principal would be able to offer advice? I should have thought this was a field in which he could play a part. But the noble Lord has paid no attention at all to the need for a more flexible system between two sets of courts, to which the Grant Report draws attention—and I refer to that Report again because this will be the last serious examination of this problem. The noble Lord really has not made any contribution at all to the solution of this problem. I must ask him to say that he will look at this carefully or, alternatively, I must ask the Committee to insist on this Amendment, because I think it is right in the long-term interests of the administration of justice in Scotland.

Lord HUGHES

I will certainly undertake to look at the matter, and I am prepared to see that there are consultations with sheriffs principal as to what their views would be on this matter. I quite agree with the noble Earl that the sheriff principal is obviously a person who could give advice. In fact, that is what I have just said. But it is not necessary that he should become chairman of the justices' committee in order to give them advice on the various matters as to which his advice would be both valuable and welcome. We believe it is likely to be better received if it is advice coming to them from outside, rather than appearing to be something imposed on them, and that its value would then most likely be greatest. But I would certainly be prepared to examine whether there is any merit in doing this. Quite frankly, I cannot see the merit at the present time, but at least we could ask the two sheriffs principal who are full-time at the moment just exactly what they think of the proposal, and any way in which they would regard themselves as being better able to serve the ends of justice, whether of integration or otherwise, by being chairman of a justices' committee, rather than by the method which the Bill implies, which is giving such advice as they feel desirable from outside.

The Earl of SELKIRK

With great respect, the Bill gives no such guidance whatsoever. There is no indication whatever in the Bill of advice being given from outside. If I may take the noble Lord's statement as it stands: very well, do not make them chairmen, make them ex officio members. Would the noble Lord think about that? Because I think the two systems must be brought together. But in view of what the noble Lord has said I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clause 17 [Allowances]:

5.50 p.m.

Lord MOWBRAY and STOURTON moved Amendment No. 20: Page 12, line 20, at end insert ("or, in the case of a justice who is self-employed, as an alternative to the financial loss allowance, a fixed attendance allowance to be decided by the Secretary of State in addition to travelling allowance and subsistence to which he may be entitled.").

The noble Lord said: This is a small Amendment which I think meets a need in Clause 17. It is perfectly easy for people who are paid by the day or by the hour to come out at the end of the day and say what their loss of earnings is for any given time during which they have been doing their duty as a justice. But in Scotland we have many people, especially in rural areas, who are self-employed. The farming community springs to mind immediately. Therefore, this Amendment asks the Secretary of State to consider what he thinks is a suitable rate which such people would then be able to claim without their having to do some very complicated and, at best, wild guesswork as to how valuable was their time per hour. I beg to move.

Lord HUGHES

The effect of this Amendment is to extend the allowances payable to a self-employed justice to include, as an alternative to the financial loss allowance, a fixed attendance allowance to be decided by the Secretary of State. I cannot claim to be an expert on the complex subject of allowances. The allowances system is now operating for local authorities this side of the Border and will come into operation in due course in Scotland. I do not think I am exaggerating when I say that it has not been received with universal approval; that in fact it is doubtful whether it is any more popular than was the former system.

I understand that Clause 17 re-enacts essentially the existing provisions governing the payment of allowances to justices in Scotland; but the principles underlying these provisions apply much more widely than simply to Scottish justices. Successive Governments have taken the view that justices should be treated for allowance purposes in the same way as many others giving service in which there is an element of public duty. The tradition has been, and is, that where there is an element of public service a limit has been placed on the rate of compensation paid for loss of earnings. This applies to jury service, to witnesses in court cases and to non-elected members of local authorities.

I appreciate that the objective of the present Amendment is to ensure the introduction of attendance allowances for a restricted group of justices; namely, those who are self-employed, as an alternative to the financial loss allowance where in many cases it is almost impossible to establish whether or not there is a loss. I therefore accept that the financial loss allowance provision may not operate very effectively in all cases for self-employed persons. With respect, it is far from clear that the alternative scheme proposed is likely to be any more equitable in practice. It might possibly serve to remove inequalities in some types of case at the expense of creating injustices for others. No doubt a good number of employed persons could claim with justification that an attendance allowance would be better for them than the financial loss allowance.

I hope, therefore, that I have said enough to show that the principles thrown up by this Amendment go far beyond the scope of the present Bill. We must accept, albeit with reluctance, that the Bill must concentrate on the essentials if Scotland is to have a system of lower courts in operation on 16th May 1975. I must therefore ask the noble Lord to withdraw his Amendment. I am sure that this matter will be looked at in a general way, because there is no doubt that we do not have a satisfactory solution to these problems. But it is not something which ought to be seen in this rather narrow field of justices, for there are so many other areas in which it could be argued that the injustice of the system is just as great. I hope that when the opportunity arises to look again at the position in general, the position of the justices in particular will not be overlooked.

The Earl of SELKIRK

The noble Lord's brief is very narrow and harsh. He talked about inequity and essentials. May I ask this question. When the noble Lord arranges to start paying local authority councillors, which I understand is likely to come shortly—and I gather that this will be next year—will he be able to pay justices who are self-employed on the same basis or will he require statutory authority to do so? If he requires statutory authority, this is where it should be.

Lord HUGHES

No, this is not where it should be. The position will be that all councillors, as is the position here, will be entitled to such allowances (up to a maximum laid down by the Secretary of State) as may be determined by the local authority themselves. They cannot exceed the maximum but they can pay less if they are so inclined. This will be payable to any member of the authority, whether employed, self-employed or whatever his status; for they are all on the same basis. So far as the justices are concerned, the position is that everybody is on the same basis. The allowances do not apply to them; what applies is the financial loss system, whether the person is employed or self-employed.

If we were to import this principle of giving allowances for the self-employed, obviously there will be inequality between the man who loses wages and could get only financial loss allowance up to a given maximum, and the self-employed person who gets an allowance. Equity would require the system of allowances to be applied to everybody, even justices. If you are going to do this, why deny it to members of juries, why deny it to witnesses coming into court, why deny it to all other than the elected councillors who are subject to the system of financial loss allowances? It is because this is a narrow part of a wide field that it is wrong that we should attempt to do this in this Bill. If it is going to be done and is regarded as an injustice that there should not be allowances, then it must be done in the context of the whole scheme and we cannot alter the law of the land in relation to this wide field by making a special decision in relation to a comparatively small number of people.

Lord MOWBRAY and STOURTON

I never like the argument that a small number of people do not make good law: they do. However small the number of people concerned, that has nothing to do with the principle. However, I take the noble Lord's point that the Government are aware that there are anomalies here and that they are not sitting back content to do nothing about it. I understood the noble Lord to say that the Government were actively considering ways of how to rectify these anomalies, and, provided that we have the assurance from the Government that they recognise this, I am prepared at this stage not to press the Amendment. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

6.3 p.m.

Clause 18 [Appointment and duties of clerk of peace]:

Lord MOWBRAY and STOURTON moved Amendment No. 21: Page 13, line 26, leave out ("an") and insert ("a duly qualified").

The noble Lord said: This amendment is similar to a previous Amendment. It is just that the words "an officer" seem a little vague. I am sure that the noble Lord will tell me that he has no intention of advising the courts, but why not put in "duly qualified"? It would not hurt the Bill: it would only strengthen it. I beg to move.

Lord HUGHES

This Amendment, as the noble Lord, Lord Mowbray and Stourton, has said, is similar to that already discussed on Clause 7. What is proposed here is that a local authority, in appointing an officer to act as clerk of the peace, should be required by Statute to appoint a "duly qualified" officer. As I have already explained, the general approach on the question of qualifications for local authority officials is to avoid specifying qualifications in Statute and to leave it to responsible local authorities to appoint officials with the skills and experience required for the post. I have indicated that I should be prepared to see a departure from this policy in the case of the clerk of the district court, accepting that there a suitable legal experience is what is needed and that we should find a way of putting that into the Bill. However, I think that that post can be distinguished from that of the clerk of the peace and, for that matter, of the clerk of the licensing court provided for in Clause 22. They do not fall into this category, not being legally qualified persons.

In these cases where the duties to be performed are essentially of an administrative nature, there does not appear to be any need to specify qualifications. In any event, what is a "duly qualified" officer? When it comes down to law, this is really meaningless. If they were so foolish, the local authority could go and pick up any Tom, Dick or Harry out of the street and say, "We are appointing this man because he is duly qualified". That would be the end of it. So we must accept that the local authority will want this to work and will in fact appoint the sort of person whom they think is duly qualified. We do not think in this case, as opposed to the one in which I have already conceded, that there is a need to specify any particular qualification. I hope therefore that the noble Lord will be content to rest on the good sense of the new authorities.

Lord MOWBRAY and STOURTON

I am sorry that the Minister did not offer to come up with some suggestion of words that we should have been happy to assist in putting through on Report but, in view of what he says, I will not press this and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clauses 19 and 20 agreed to.

6.7 p.m.

Clause 21 [Amendment of Legal Aid (Scotland) Act 1967 and Legal Advice and Assistance Act 1972]:

The Earl of SELKIRK moved Amendment No. 22: Page 15, line 39, leave out ("a district court") and insert ("the case of a district court by a local legal aid committee").

The noble Earl said: This is a question of how legal aid should be granted in district courts. We are all very glad that legal aid is being granted. The Bill suggests that it should be granted by the bench—that is, by the magistrate sitting on the bench. I am suggesting in the Amendment that legal aid should be granted by the local Legal Aid Committee. I should like in a few words to say why. It is true that a slight time advantage may be gained by having it granted by the justice sitting on the bench, but this involves a preliminary view of the case and means that the justice who will actually judge the case will have a preliminary view and may take up a prejudiced position before the case comes to trial. Secondly, it means that different standards are being set all over the country.

I am quite aware that the noble Lord will say that at the present time the sheriff does grant legal aid in Scotland, but the truth is that that presents the sheriff with a very real problem. He must decide what is in the interests of justice. With great respect if this point has to be examined before the case is actually heard, it is very nearly impossible to conceive that the justice when he hears the case comes to it with a completely open mind. I recognise that there are advantages on both sides, but I think, on the whole, that the justice who takes a case should not be in a position to have to take a preliminary view as to where the interests of justice lie before the case comes before him. I ask the noble Lord to look at that to see whether he would consider that legal aid should not be granted by the Legal Aid Committee who, I am given to understand, are perfectly prepared to have a duty officer in all the courts at the appropriate time. I beg to move.

6.8 p.m.

Lord HUGHES

The noble Earl concluded by asking me to have a look at this, so I take it that he is not necessarily anxious to press this matter now. This would be a novel procedure, I am informed. I am also told that the Amendment as it stands is technically defective. I have been trying to find out exactly why this is so, but, though I have been told, I still do not know why it is so defective. It might be easier for the noble Earl to understand why this is so, but that is by the way. If it were otherwise acceptable, the technical defects could be removed fairly easily, but the view which we have taken is that in summary criminal cases in the sheriff court and, for that matter, in English magistrates' courts, legal aid is granted by the court itself. It would be entirely consistent with the present system for the justices to take legal aid decisions in the district courts.

This arrangement has the advantage of being quick, decisive and inexpensive and, more important, the statutory test on merit for granting legal aid in summary cases is that it is in the interests of justice that legal aid should be made available to the accused person. It is more appropriate for a test of this sort to be applied by a court rather than by any other body. As I have already said, training in legal aid matters is being given high priority in the training of justices and, with such training, I can see no reason why the justices should not be able to carry out this part of their work effectively. However, although the advice that I have is that the practice which is already applied in these other courts is shown to be a good one, that is no reason why I should not accept the noble Earl's invitation to look at the matter, and I will take an opportunity of discussing with the Department what has been said by the noble Earl today. If it would help him in the matter, I will write to him in ample time before the next stage, so that if he wishes to return to the matter on Report he will not be denied an opportunity to do so.

The Earl of SELKIRK

I thank the noble Lord. I can only say that I found what he said just now hopelessly misleading in certain respects, but I readily accept his assurance that he will look at this again. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Remaining clauses and Schedules agreed to.

House resumed: Bill reported with an Amendment.