HL Deb 19 December 1974 vol 355 cc1276-310

11.30 a.m.

Report received.

The Earl of SELKIRK moved Amendment No. 1:

Clause 3 [Jurisdiction and powers of district court]: Page 3, line 10, at end insert "but the maximum period of imprisonment which can be imposed by a district court shall remain at 60 I days.

The noble Earl said: My Lords, I have put down this Amendment because we were agreed that the limit of imprisonment sentence in district courts should be 60 days. On looking at the Criminal Procedure (Scotland) Bill, I see there is a tariff at Section 407 which states that if the amount exceeds £50 the period of imprisonment is 90 days. I am asking I the noble Lord, Lord Hughes, whether that is correct, because it is not possible to amend that consolidation measure. If that is not correct, can the noble Lord tell us in what way what is stated in the Bill does not reflect what the law will be after the consolidation. My Lords, I beg to move.


My Lords, the question has been raised as to whether one indirect effect of the provision in Clause 3(3) of the Bill to raise the limit of the fine from £50 to £100 for a common law offence, would be to permit the district court to impose a maximum period of 90 days' imprisonment in default of a payment of a fine. I am advised that Section 3 of the Summary Jurisdiction (Scotland) Act 1954 already contains a proviso which would prevent a district court from awarding more than 60 days' imprisonment for failure to pay a fine. Section 49(1) of the 1954 Act contains a table which includes an entry for a maximum of 90 days' imprisonment in the event of a failure to pay a fine of over £50. However, in view of the proviso to Section 3, such a period of imprisonment could be imposed only by the sheriff, and not by an inferior court of summary jurisdiction. Therefore, the point is covered by existing Statute, and no amendment is needed in the Bill.

In a short meeting I had with the noble Earl, Lord Selkirk, he referred to the consolidation measure before Parliament at present. On examination, we were able to confirm that the proviso is carried forward in consolidation, so that it is only in the summary jurisdiction court presided over by the sheriff where the 90 days provision applies, and the proviso limiting it to 60 days in the inferior court continues. Therefore, I hope that the noble Earl will be satisfied that his Amendment is not necessary.

The Earl of SELKIRK

My Lords, I am grateful to the noble Lord for his explanation. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 5 [Stipendiary Magistrates.]

11.35 a.m.

The Earl of SELKIRK moved Amendment No. 2.

Page 4, line 11, at end insert— Where the Secretary of State considers the appointment of a stipendiary magistrate to be desirable for the better administration of the district court in any area, he shall direct the local authority to make such an appointment.

The noble Earl said: My Lords, may I move this Amendment on behalf of my noble friend Lord Balerno. We had a discussion on this point during Committee stage. The noble Lord was good enough to say that he would have a look at it. He has had a look at it. This present Amendment gets round the difficulty of the effect in the Amendment that I put down. Perhaps I should explain the structure we are going to get in the district courts of Scotland.

It is an effort to combine the justices of the peace in the landward areas of the country with the old burgh courts which have existed in Scotland for a long time. These are brought together under the administration of the respective district local authorities in Scotland. It is envisaged that there may be a need to increase the number of stipendiary magistrates, and that is put into the power of the local authority, subject to the agreement of the Secretary of State. But the Secretary of State himself has no power whatever to initiate the appointment of a stipendiary magistrate. That means that in this essential element of the administration of justice, the Secretary of State can play no role at all. The administration of justice is conducted in this country in the name of the Queen; that is the source of justice. The Secretary of State is Her representative in this respect in Scotland. I consider that he should be responsible in the last resort for ensuring that the criminal courts at district level are run properly.

My Lords, this is not provided for in the Bill. If there were a recalcitrant local authority who did not run its district courts well, the Secretary of State has no recourse whatever. I shall not suggest that this will happen very often. I believe most district local authorities will take much trouble to ensure that their courts are run well. But I am bound to say that one cannot assume that. One cannot say that this inevitably will be the case. The district courts are appointed and elected basically for administrative purposes, not really for the administration of justice, for which they are not necessarily well qualified. Recently we have had a Report by the late Lord Justice-Clerk, Lord Grant, a man of very high judgment and qualities, and a man very moderate in his views and speech. I should like to quote, as an example of what may happen, something that he said in the Report. He says: We are told, for instance, that the arrears of work in the police courts in Glasgow are much more alarming than the arrears in the Glasgow sheriff court". I do not say that is something that cannot be dealt with.


My Lords, if I may interrupt while the matter is relevant, would the noble Earl be good enough to remind the House of the date on which that statement was made?

The Earl of SELKIRK

Certainly, my Lords. The date was 1967. I am not saying that that is the position today. I have made inquiries as to the position in Glasgow, but I am not even concerned about that. It may be that nothing is necessary. All I am saying is that in the future—and certainly not on the 16th May when this Bill comes into operation—there may be times when certain standards are not adequately maintained in some district courts. I would say that the Secretary of State would be quite wrong not to have sufficient powers so that he could carry out what I believe the public expect him to carry out. But at present he could not do this. I am not one for giving the Secretary of State additional powers. I have had many arguments with the noble Lord in trying to reduce them. But the administration of justice is something which has long been nationalised in this country. The structure we are putting into the Bill of giving the responsibility to the local authority is rather peculiar. I am not arguing against it. It is an interesting continuation of a former state of affairs.

My Lords, it would be wrong for the Secretary of State not to have power to intervene in certain eventualities. I must make the point from the Report of the noble Lord, Lord Grant, that he recommends some additional stipendiary magistrates. In the consideration of this, he says: We do not believe, then, that the cost of obtaining a stipendiary magistrate need be a deterrent", because fines and other means will pay for it. In some way, the amount of work that a stipendiary magistrate can do makes him no more expensive, probably, than a lay magistrate. I am not putting this forward in favour of stipendiaries, and against lay magistrates, but I am putting it this way: that they can get through more work and can prevent justice being delayed more than is necessary.

I should say that this is a weapon which the Secretary of State can use. I am not going to say he will use it very often—probably never. But he is in the position to say to the local authority, "Unless you speed up your court procedure, unless you make your arrangements better, I will step in". As the Bill is drafted today, he cannot do this. I am very clear that he should be in a strong enough position to be able to do that.

I have to add, of course, that we are now introducing legal aid at district level, which we agree is very acceptable although it will undoubtedly mean additional work. What we do not know is where this may happen. The ideas, is that it may happen in the congested areas, and there are two stipendiary magistrates in Glasgow. But with the growth of population, the change to new towns and the development taking place, who is to know where this may be necessary. I think this is a very desirable power. I believe it should be held in reserve and held available, so that the Secretary of State may fulfil—and, if I may say so, properly fulfil—the task which this affords him. I think this is a power which the Secretary of State would have as a last resort. I hope that the noble Lord will be able to accept this Amendment. I beg to move.


My Lords, may I adduce two further reasons in support of my noble friend Lord Selkirk? The first is that there is considerable movement of population from one part of Scotland to another, and a considerable inflow of people coming into Scotland. All this is mainly in connection with the oil, especially on the East and North-East coast, where at the present moment people are living in substandard condi-tions—one might almost say on hulks—pending the building of proper accommodation. There are troubles arising in those parts, which may well require the appointment of a stipendiary magistrate there, even if only for a short period, until the situation settles down.

The second reason is that a major point of this Bill is that magistrates should in future be trained, and that training, as I understand it, is of considerable length, including weekend courses. We are uncertain at the moment how many of the existing justices, or new justices, will be willing and will have the time to undertake this training. It may be that in certain areas there will be no difficulty at all. In other areas, more particularly the country areas where developments are taking place, it may be extremely difficult to get people to come forward as justices and undertake all the training. For this reason I think it should be made possible for the Secretary of State to direct the local authorities to appoint a stipendiary magistrate.


My Lords, I should also like to support what my two noble friends have said, and even perhaps suggest one other small reason—which would not be small if it happened. If there were a district court where decisions were continually and frequently being overturned in the Courts of Appeal, the Secretary of State might well like to have this reserve power to suggest to a district council that they should appoint a stipendiary magistrate. For that reason, and for the reasons adduced by my noble friends, I should like to support this Amendment.


My Lords, if I might first deal with the last point raised by the noble Lord, Lord Mowbray and Stourton, this is a most unlikely occurrence. The number of cases where decisions of the existing borough or JP courts are overturned on appeal are so few that it is most unlikely to happen, having regard to the fact that the change in local government which is taking place, and which necessitates a change in court structure, does not mean much change in the personnel involved. There are some 800 or 900 borough magistrates and 5,000 justices at the present time. So I do not think this will mean very much change.

One of the main purposes of the Bill is to continue the lay magistracy in Scotland. This is fundamental. As a practical matter there will have to be some whole-time professional magistrates in the district courts, but we simply cannot contemplate accepting Amendments which would enable a future Secretary of State to undermine the purpose of the Bill and to oust the lay judiciary by appointing stipendiary magistrates to do the work in areas where there are lay justices willing and able to do the work and prepared to undertake the necessary training. If this Amendment were to be adopted, there would, I fear, be continuing doubts and uncertainties on the part of the local authorities administering the courts and of the justices. Each successive Secretary of State may take quite a different view of the relative merits of lay justices and stipendiary magistrates. The requirement set down in the Amendment that the Secretary of State considers what may be desirable for the better administration of the district court, may mean a lot or it may mean very little. There is a section of opinion—a very small section, I believe—which will hold that it is always desirable for the court to be presided over by a professional rather than by a lay magistrate. Uncertainty about the future is likely to be harmful to the development of an effective system of courts.

In the course of his remarks, the noble Earl, Lord Selkirk, said that we could not make assumptions about what district councils might do in the future in regard to the appointment of a stipendiary magistrate. If it is unreasonable in the Bill to proceed on the assumption that a district council will not consider the appointment of a stipendiary in a case where it is obviously the right thing to do, then equally it is wrong to make the assumption that a future Secretary of State would not use the power which this Amendment would give him to change completely the structure of summary court jurisdiction in Scotland. A Secretary of State who was firmly of the opinion that it ought to be an entirely professional court could completely change the attitude without coming back to Parliament at all.

If it proves in the course of time that all-professional magistrates are the right system, the course of action is for Parliament to alter the law by another Bill, not for the Secretary of State to alter the law by making use of such an Amendment. I say right away that it is unlikely that that would happen, but it is an assumption which cannot be disregarded entirely. I say it is equally unlikely that any district council would be so unreasonable in its consideration of the matter that we must put in a provision of this kind to take care of that unlikely assumption.

There are other important issues, also. Under the provisions of the Bill the local authorities will continue to be responsible for the financing of these courts, including the payment of the salaries of the stipendiaries. Exercise of the proposed power of direction by the Secretary of State would have the effect of placing a burden on the ratepayers without their elected representatives having any say in the matter.

The present Amendment appears to contemplate that some district authorities will, in the future, neglect the proper administration of their courts, allowing their justices to become overburdened and refusing to appoint stipendiary magistrates to do the work, with the result that the Secretary of State has to step in. My Lords, I cannot agree that this is a real possibility. For one thing, the local authority representatives whom Ministers have met are very anxious that the new courts should be as effective and efficient as possible. The types of crimes and offences which are dealt with by the lower courts carry a considerable nuisance value for local residents, and I cannot imagine such residents allowing their local authority to permit a court to disintegrate.

I must also draw the attention of your Lordships to the considerable flexibility which will be introduced into the disposal of summary criminal cases as a result of the provisions in the present Bill relating to the assumption by the Lord Advocate of the responsibility for prosecutions in the district courts. For the first time there will be one service, the Procurator Fiscal service, which will be responsible for the prosecutions in both the sheriffs summary courts and the lower courts, and this will enhance the degree of flexibility possible in the distribution of cases between the two types of court.

The intention is that all cases suitable for district courts will be taken in these courts, but there will be room for adjustment either way to meet exceptional situations. The sheriff court, of course, has universal summary jurisdiction. I might add to the point which has been made by the noble Lord, Lord Balerno, in relation to the North-East of Scotland, where in the ordinary course of events there might not even have been a district court set up. In many of those areas at present, all the summary cases are dealt with by the sheriff. I have no doubt that there will be continued use of that procedure in some areas, particularly where, as the noble Lord indicated, the problem may be of a temporary nature lasting for a few years—I am not talking here about a few months—which, as the noble Lord was good enough to indicate, does not require a permanent solution.

There are at present three stipendiary magistrates in Scotland, all in Glasgow. At the time when the Grant Committee made its report on the sheriff court in 1967, there were two stipendiary magistrates; a third took up his post at the beginning of 1970. These figures seem small, but I would draw the attention of your Lordships to the fact that these three stipendiaries together dispose of at least one-quarter of the total number of burgh and JP court cases in Scotland every year. The remainder of the cases are spread throughout the existing 250 or more burgh and JP courts. It must be appreciated, therefore, that the scope for appointing more stipendiary magistrates outside Glasgow is very limited indeed at present. The position may change somewhat after 16th May 1975 when the existing courts will be replaced by 55 or so district courts. The concentration of business in fewer courts may provide somewhat more scope for the use of stipendiary magistrates if required, and, as I have already pointed out, the creation of a unified prosecution system or the district and sheriff courts will permit considerable flexibility in the arrangements.

There is clearly a disparity in the performance of courts in different areas with regard to delays in the hearing of cases in the existing courts. Statistical returns on the business of the sheriff courts indicate that there has been some improvement in the position in the last two years, in spite of an increase in the volume of work and accommodation difficulties. But much remains to be done and this will be one of the problems to be tackled by the new full-time sheriffs principal. There is no central collection of statistical information on delays in the burgh or JP courts but here, again, the indications are that there is a disparity of performance. In many places there are virtually no unnecessary delays in hearings in the burgh or JP courts, a matter of considerable pride for the local authorities concerned. In some of the very busy courts, however, increases in the volume of court business and difficulties over the speedy acquisition of additional accommodation may have resulted in some delay although, as I say, there is no central collection of information on this point.

My Lords, there is sufficient flexibility inherent in the present provisions of the Bill to deal with exceptional circumstances. Under the terms of Clause 5, it is already provided that the Secretary of State is required to approve the establishment of a stipendiary magistrate post, to approve the salary to be paid and to approve particular appointments. The noble Earl, Lord Selkirk, said—I may be paraphrasing, but I think I have the sense of his remarks—that the Secretary of State has no power to initiate proposals about the stipendiary magistrate. The noble Earl said that the Secretary of State has no right to initiate these proposals. In law that is undoubtedly the case, but the noble Earl must be well aware of the fact that many of the things which local authorities may do, rather than the things that they must do, arise because of the discussions that take place between local and central levels. I certainly envisage that if a case arose where it seemed apparent that there was at least a case for the consideration of the appointment of a stipendiary magistrate, the Secretary of State would not be in any way inhibited from suggesting to the local authority that the time might be appropriate to consider the appointment. Therefore, it is not right to say that he cannot initiate proposals. But it is right to say that if a local authority decided that it was not necessary or desirable to do it, the Secretary of State would not have the power to compel the local authority.

I suggest, my Lords, that it is in keeping with all the trends over quite a number of years in these matters that local authorities should have the maximum freedom to decide for themselves, and that in this case it would be quite wrong, first of all to give the Secretary of State power to compel a local authority to do something which it did not think was necessary or did not wish to do; and, secondly, to place in the hands of a Secretary of State the possibility of completely changing the character of justice in Scotland without getting Parliamentary consent through the medium of a new Bill. I therefore think that I am completely justified, from all that I have said, in asking that this Amendment be not made.

11.58 a.m.

The Earl of SELKIRK

My Lords, I am very disappointed over the answer given by the noble Lord. He has referred to the Lord Advocate. I welcome the wider scope of the Lord Advocate, but he cannot do anything about it. He has no power. The noble Lord also mentioned

finance, but Lord Grant has dealt with that, and I have already referred to this. There should be no additional financial burden on the rates. The noble Lord said that he does not want to control the local authority. It is a long tradition in the burgh that the bailies and the provost could be sacked by the council. That is one of the controls that they have, although it is a very small control.

What has worried the noble Lord—I think unreasonably—is the fact that he cannot trust future Secretaries of State. I thought that the Labour Government would be in power for the next 20 years, so why worry about that? Secretaries of State must be regarded as sensible; I have always so regarded them. If they are not, they can do a lot of damage in this country in one way or another. We must take them as being sensible. If the noble Lord thinks that a Parliamentary decision is required, we could use the Negative Resolution procedure. I think the House of Commons should look at this. It is very important that they should see that justice can be made the responsibility of the Secretary of State, instead of leaving him with no initiative except persuasion. I am not talking about that Shangri-La on the Tay, as I think the noble Lord knows, but there are other local authorities which do not necessarily pay attention to persuasion. I think, my Lords, we should ask the House of Commons to look again at this matter.


My Lords——


My Lords, we are on Report stage.

On Question, Whether the said Amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 65; Not-Contents, 42.

Amherst of Hackney, L. de Clifford, L. Gridley, L.
Amulree, L. Denham, L. Grimston of Westbury, L.
Arbuthnott, V. Drumalbyn, L. Hailsham of Saint Marylebone, L.
Auckland, L. Elles, B.
Balerno, L. Elliot of Harwood, B. Hankey, L.
Barnby, L. Elton, L. Hanworth, V.
Beaumont of Whitley, L. Ferrers, E. Henley, L.
Brentford, V. Fortescue, E. Inglewood, L.
Brock, L. Gainford, L. Kinnaird, L.
Clancarty, E. Glasgow, E. Kintore, E.
Coleraine, L. Goschen, V. Lauderdale, E.
Cottesloe, L. Greenway, L. Long, V.
Cowley, E. Grenfell, L. Lyell, L.
Macleod of Borve, B. Porritt, L. Stamp, L.
Mancroft, L. Rankeillour, L. Strathclyde, L.
Mar, E. Reigate, L. Strathcona and Mount Royal, L.
Margadale, L. Rochester, L.
Merrivale, L. St. Davids, V. Strathspey, L.
Montagu of Beaulieu, L. St. Helens, L. Teviot, L.
Mowbray and Stourton, L. [Teller.] Selkirk, E. [Teller.] Vernon, L.
Sempill, Ly. Vivian, L.
Northchurch, B. Simon, V. Young, B.
Orr-Ewing, L. Somers, L.
Archibald, L. Gordon-Walker, L. Pargiter, L.
Ardwick, L. Hale, L. Redcliffe-Maud, L.
Arwyn, L. Hamnett, L. Roberthall. L.
Belhaven and Stenton, L. Henderson, L. Royle, L.
Boothby, L. Hoy, L. Sainsbury, L.
Brockway, L. Hughes, L. Serota, B.
Buckinghamshire, E. Janner, L. Shinwell, L.
Caradon, L. Kissin, L. Stedman, B.
Champion, L. Leatherland, L. Strabolgi, L. [Teller.]
Crook, L. Llewelyn-Davies of Hastoe, B. Summerskill, B.
Crowther-Hunt, L. McLeavy, L. Taylor of Mansfield, L.
Davies of Leek, L. Melchett, L. [Teller.] Wells-Pestell, L.
Fulton, L. Milverton, L. White, B.
Gaitskell, B. Pannell, L. Wynne-Jones, L.

On Question, Motion agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.

12.6 p.m.

Clause 6 [District prosecutor]:

The Earl of SELKIRK moved Amendment No. 3: Page 4, line 29, after ("prosecutor") insert ("who shall be in private practice").

The noble Earl said: My Lords, this is quite a small point. Under the arrangement, pending the time when the Lord Advocate will be in a position to appoint the prosecutor, the procurator fiscal, the local authority will appoint the district prosecutor. The point of my Amendment, which says that the prosecutor will be in private practice, is really to make quite certain that the clerk of the court—who under Clause 7 is also appointed by the local authority—and the prosecutor do not in fact work in the same room; that is to say, so that they could not in fact possibly be accused of working in collusion.

The noble Lord may be able to suggest a better way, but I think he will appreciate that it would be very unfortunate, for appearance sake, that the prosecutor and the clerk of his court should in fact be working in the same room, and, worse still, at the same desk. If he is in private practice this could not happen. I do not insist on these words more than to say that I should like some arrangements made so that it is known that there is no possible working together between the clerk of the court and the prosecutor. I know that this is for only a temporary period, but nevertheless it is important for those people who may be involved. I beg to move.


My Lords, as the noble Earl has indicated, these appointments are of a temporary nature. They will be effective, I can say, for only a very limited period of time. From consultations I have undertaken since the last stage of the Bill, I understand that the Lord Advocate has in mind assuming responsibility for prosecutions for more than two-thirds of the district courts from the beginning—that is, from 16th May 1975—and in the remaining one-third he will assume responsibility a year later. Therefore, a smallish proportion of the district authorities will have to appoint a district prosecutor for a period of one year only.

In the circumstances, I do not think that it is either necessary or desirable for us to seek to introduce new statutory provisions relating to the appointment of local prosecutors in lay courts. The Bill as it stands already goes somewhat further than simply re-enacting the present provisions relating to burgh prosecutors or JP fiscals. It provides that the Lord Advocate may issue directions to district prosecutors regarding the prosecution of offences, and requires the prosecutors to comply with any such direction. The Bill provides also that the district prosecutor shall report to the Lord Advocate on any matter concerning the discharge of his functions when called upon to do so. To go further and require the district prosecutor to be a solicitor in private practice would, I suggest, be an unnecessary restriction on the local authorities when they are seeking to fill these temporary appointments. There may be, for example, solicitors who have recently retired from local authority work and who would be well suited to fill temporary posts as district prosecutors but who, under the terms of the proposed restriction, would not be eligible.

I fully agree with the point the noble Earl made, and to which he attached the real importance of this Amendment, that it would be undesirable for a clerk of the court and a district prosecutor to share the same room within the local authority offices. I am equally certain that the new district authorities would not dissent from that view either. I do not think that we need to have detailed provisions in the Bill to secure this. No doubt when the Bill has completed all its Parliamentary stages local authorities will be sent circulars on the district courts. As noble Lords are aware, frequently following the passage of an Act of Parliament administrative circulars are sent to the authorities concerned. I certainly undertake that this will be one of the points which will be covered in such an administrative circular, emphasising the undesirability of anything which could give the appearance of collusion between these two officials. Because of the very limited period of time for which a comparatively small number of these district prosecutors will be required, and with my assurance about administrative guidance, I hope that the noble Earl will feel able to withdraw his Amendment.

The Earl of SELKIRK

My Lords, I should like to thank the noble Lord, Lord Hughes, most warmly for his extremely satisfactory answer. I should like to congratulate the Lord Advocate on undertaking to do two-thirds of the work by next May and the remainder in the following year. I wish also to thank the noble Lord for indicating that he will mention the point in the circular to the district authorities. My Lords, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

12.12 p.m.

Clause 7 [Clerk of district court]:

Lord HUGHES moved Amendment No. 4: Page 5, line 23, at end insert ("and any person so appointed shall be an advocate or a solicitor").

The noble Lord said: My Lords, there is broad agreement that it is essential that the clerk of the court, who is to advise the lay justices, should be legally qualified. As originally drafted the Bill followed the policy which has been common in recent years; that is, to avoid laying down qualifications for local authority officers on the grounds that local authorities, as responsible bodies, ought to be allowed to make their own appointments and could be expected to appoint officials with relevant qualifications. The provision of clerks of the district courts has been discussed with the local authority associations who fully accept that the appointment to these clerkships should be made from their legally qualified staff. There has never been any fear, therefore, of inappropriate appointments being made. I was, however, impressed with the argument that in this case it is justifiable and proper to depart from the approach of not specifying qualifications, on the grounds that the clerk of the court will be someone primarily concerned in the administration of justice rather than as an official concerned with local authority administration and procedures, and that therefore recent precedents are not entirely applicable in this instance. During the Committee stage I indicated to the noble Lord, Lord Mowbray and Stourton, who had down a somewhat similar Amendment, that we would examine it. I think that the present Amendment meets the points which were raised at Committee stage and I hope that noble Lords opposite will find that it is in acceptable terms. My Lords, I beg to move.


My Lords, as the noble Lord the Minister has said, this Amendment does resemble other Amendments which I moved on Committee. It remains only for me to thank the noble Lord, Lord Hughes, for putting the position in this way. I am most grateful to him.

12.14 p.m.

Clause 10 [Existing justices and magistrates]:

Lord MOWBRAY and STOURTON moved Amendment No. 5: Page 8, line 4, at end insert ("for a period of two years and he may thereafter be confirmed in such an appointment under section 9 of this Act.")

The noble Lord said: My Lords, this is an Amendment to enable the appointment of a lay magistrate who is now being appointed to the new district courts and for that appointment to be considered again in two years. If it is required that he should continue in office after that time the requisite power is given under the Amendment. If this provision were not inserted these magistrates could continue to hold office for a very long time, and it might be better for the courts to be able to have a re-think in order that other magistrates might be appointed. I do not want to waste too much time on this aspect. I wish to help the noble Lord, and I beg to move.


My Lords, I strongly support this Amendment. An important part of the Bill, which we will come to later, concerns the training of justices of the peace in Scotland. Neither I nor my friends are against lay justices in Scotland. It is wrong to suggest that. What we are violently opposed to are ignorant and incompetent lay justices. For that reason we welcome the clauses which insist upon the training of the justices and the fact that nobody should be on the active list of justices unless he has passed through a training course and has been approved. This idea of some improvement in the quality of the justices in Scotland has been prevalent for a long time. For at least ten years, if not more, successive Secretaries of State for Scotland have urged local authorities to institute such courses. It is all very well to say that when a Secretary of State says "may" the local authorities will jump to it. They do not do so. This is where I would differ from the noble Lord, Lord Hughes. We must give power in the right place.

Unless we train justices properly, the whole system of the lay magistracy will go to pieces; indeed, it has been declining for some time. The problems of the lay magistrate and the type of cases have become more complicated. Now for the first time in these courts we are to have legal aid so that again the complications are increased, underlining the importance of having a trained lay magistracy. The Amendment would prevent the present magistrates sitting in perpetuity; otherwise they could choose to stay on for ever as justices of the peace, or at least until they become of a particular age or until they blot their copy books so badly that they are transferred to the supplementary list. The period of two years during which the existing magistrates of the burgh courts may continue as lay magistrates, is very generous. If those who want to continue as magistrates are not already skilled or have not attended courses, then they can do so; otherwise, they can retire gracefully. I think it is most important that we should not have a dollop of legal suet sitting on top of our courts for an indefinite period.


My Lords, I will take first the points raised by the noble Lord, Lord Balerno. I should have thought that if one is to have suet the most indigestible place would be to have it on the top. However, we shall be benefiting from justice and not devouring it, so I will let that point go. Because of the interest that the noble Lord has obviously taken in the importance of training, I was somewhat surprised that he should have based so much of what he was saying on the fact that for ten years Secretaries of State wanted training and had not been able to get it. Under Clauses 14 and 15 that situation will be totally changed.

I think I should read these provisions, which are relatively brief. Clause 14 states: The Secretary of State may make schemes and provide courses for the instruction of justices of the peace, and it shall be the duty of the justices' committee of a commission area to implement and administer any such schemes in accordance with arrangements approved by the Secretary of State. So the old question does not arise once this becomes law. Then, Clause 15(2) states: The Secretary of State may direct that the name of a justice of the peace for any area shall be entered in a supplemental list if the Secretary of State is satisfied", for a variety of reasons, the last of which is paragraph (d): that the justice declines or neglects to attend a course of instruction provided by virtue of section 14 of this Act, being a course suitable to his experience". Thus the position is totally changed. We therefore have to deal with the situation which arises in May, and not with the continuing situation.

My Lords, the provision in the Bill under which persons now serving as burgh magistrates will become justices of the peace on 16th May 1975 is a key provision in securing that the district court is adequately manned from the beginning. A larger proportion of the existing justices of the peace have little or no court experience. There are some 5,000 of them, and between them they carry less than 10 per cent. of the existing lay court business, whereas the 800 to 900 burgh magistrates do the remaining 90 per cent. of the work. It is often said—and there is some justification for it—that the experience of sitting on the bench is the best training that any judge, lay or professional, can get. The district court will, therefore, lean heavily on the experienced burgh magistrates at the beginning. They will be required to show the ropes to the inexperienced existing justices. They may well be required to assist in some of the training of the present justices. In view of this, it might well be regarded as unfair that the more experienced justices would be on trial for two years, whereas the inexperienced justices whom they would be expected to tutor were appointed for life.

One of the main purposes of this Amendment, as I understand it, is to secure that unsatisfactory magistrates do not sit on the bench of the district court for the rest of their lives, or at least until they are 70. I suppose that we must also recognise the possibility that some of the inexperienced justices will not prove to have the type of judicial approach necessary for the bench. For both categories, however, there are already provisions in the Bill which are directed to ensure that the quality of justice administered in the district courts will be of a high standard; and I have referred to the provision in Clause 14 and to the duty placed on justices' com- mittees to secure adequate training arrangements.

In addition, it will be for the justices' committees in each district to approve the duty rota of justices. If a particular justice is not carrying out his duties properly, his colleagues will probably be the first to recognise this and, in order to maintain the reputation of the bench, his name will be dropped from the rota. This is the most immediate and effective safeguard there can be. In addition, there are the provisions to which I have referred, with the Secretary of State's power to put his name on the supplemental list.

One of the points which was put to me in a discussion which I had earlier in the week with the noble Earl, Lord Selkirk, was the question of what powers the Secretary of State has for removing an unsatisfactory justice. Clause 9 is the clause which gives the Secretary of State's powers to remove, and it does not qualify his power in any way. At present the Secretary of State may remove any justice at any time. This is the existing law. In practice, of course, the Secretary of State removes a justice only if he is satisfied that it would be improper for the justice to continue because of misconduct, or in circumstances such as resignation, removal from the area or incapacity. But his power to remove is not limited by the Statute, and this power is not changed by the Bill.

So it is quite certain that, if there were an unsatisfactory bailee, there are the two courses of action: first, the immediate opportunity for his fellow justices to ensure that he does not disgrace them in appearing on the bench by not putting his name on the rota; and, secondly, in protecting the name of justices generally, any justice—not merely a former bailee, but any justice—whose conduct or capacity was such that it was desirable he should be removed, could be removed by the Secretary of State through the procedures which presently exist.

However, my Lords, having said all that, I recognise that there is some force in the Amendment, because I must accept that the Amendment is not limiting the opportunity to a bailee to sit for only two years. It is part of the argument of the noble Lord that a suitable bailee should be appointed a justice, so that he may carry on. This would be a substantial change in the arrangements on these matters, and I do not feel, in justice to the consultations which took place originally, that I could accept the Amendment at this stage without any opportunity to consult further. What I am prepared to say is that if the noble Lord feels able to withdraw the Amendment I shall discuss it with my right honourable friend the Secretary of State and with my Ministerial colleagues who have direct responsibility for this action. I will draw their attention particularly to the merits of the Amendment, and perhaps look at a way in which, in another place, it might be capable of being dealt with.


My Lords, I think the whole House will be grateful to the noble Lord for his explanation, so carefully given. Bearing in mind his arguments and, above all, his extremely generous offer to have further consultations, I beg leave to withdraw this Amendment on behalf of myself and my noble friends.

Amendment, by leave, withdrawn.

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

12.28 p.m.

The Earl of SELKIRK moved Amendment No. 6: Page 9, line 6, after "area" insert "unless a stipendiary magistrate is sitting".

The noble Earl said: My Lords, this Amendment arises from a question that I asked the noble Lord, Lord Hughes, during the Committee stage. Clause 13 says that no one employed by a solicitor or partner may appear before any justice of the peace if any of the partners is a justice of the peace. I asked whether that also included cases in which a stipendiary was sitting on the bench, and I should be grateful if the noble Lord would tell me the answer. My Lords, I beg to move.


My Lords, as the noble Earl, Lord Selkirk, has indicated, this is a continuation of the discussion which we had on this matter at Committee stage, and deals with the disqualification of a solicitor who is a justice. A solicitor who is a justice of the peace has a choice. Either he remains an active justice eligible to sit on the bench of the district court, the licensing court or court of appeal, in which event neither he nor the members of his firm may take part in proceedings before these courts, or he may have his name transferred to the supplemental list, in which case the disqualification will not apply.

I can see some force in the suggestion that the disqualifications ought not to apply where the district court is constituted by a stipendiary magistrate. But I think that such a view overlooks the fact that the justices of the peace, of whom the stipendiary magistrate will be one ex officio, should be regarded as a body collectively with common interests. This is recognised in Clause 16, which provides for the appointment of justices' committees to be elected from among the justices for each area. A stipendiary magistrate will ex officio be a member of the justices' committee. In view of the close association which will exist between the other justices and the stipendiary magistrate, I do not think that it would be appropriate to relax the disqualification in Clause 13 in the way suggested.

As has been mentioned, the only place at present where there are stipendiaries is Glasgow. There are three stipendiary magistrates there, but, of course, there are also burgh courts with lay magistrates sitting and it would be exceedingly difficult for this course to be carried out effectively. I therefore cannot recommend to your Lordships that this Amendment be accepted.

The Earl of SELKIRK

My Lords, I thank the noble Lord for his explanation, and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 16 [Justices' Committees]:

12.30 p.m.

The Earl of SELKIRK moved Amendment No. 7.

Page 11, line 11, at end insert— The sheriff principal of the sheriffdom, or the sheriff, in which the commission area is situated shall, by virtue of his office, be a member of the committee for that area.

The noble Earl said: My Lords, this is an important Amendment and it raises certain questions of principle. It deals with the justices' committee which is allowed to handle certain subjects under Clause 16(l)(a)(b)(c) and (d). I draw your Lordships' attention to two of those, paragraphs (c) and (d). Paragraph (c) deals with the adequate training arrangements for justices and (d) deals with the effective administration of justice in the district courts. What I am suggesting in the Amendment is that the sheriff principal of the sheriffdom or the sheriffs of the area should be members of the justices' committee. Their advice and guidance can be of the greatest value to the committee dealing particularly with those two subjects or with many other matters which may arise. When I mentioned this matter before the Committee stage the noble Lord said that they were not justices. I do not think that that carries any weight at all. If it was necessary for them to become justices, they could be made justices. What I am concerned to do is to bring closer together the two areas of criminal administration—the sheriff court, on the one hand, and the district court, on the other—so that they could meet each other. I have little doubt that in time the courts will be brought more closely together. This is the first step.

The really important point about that is that in England the head of the justices is the Lord Chancellor; in Scotland there is no such person. The Secretary of State is not a lawyer and cannot be expected to exercise the same functions as the Lord Chancellor would exercise. There is nobody at all between the justices of the peace and the Secretary of State. The Report which I have here, the Report of the noble Lord, Lord Grant, to which I referred on a previous occasion, says: In particular it is said that no member of the Secretary of State's staff now confirms that the sheriff court is legally qualified. That is no longer true of the sheriff court department; but I think it is probably still true of the justices of the peace. I do not know whether there is anybody in the Secretary of State's Department who is legally qualified to deal with the justices of the peace; and I think that it is tremendously important that they should have ready access to a fully qualified and experienced man, a man either like the sheriff principal or like the sheriff. It is very important that he should be there. No doubt there are unofficial gatherings where they can meet together and where they can talk; but I think that it is important that they should have official contact where they can talk quite freely.

The noble Lord will say—I know this because I have had it from various sources—that the sheriffs principal are not too keen to do this. With respect, I think that that is irrelevant. With their sheriffs, there would be no great additional work. If they cannot come, they cannot come. Much of the work will be dealing with rota matters and routine administration which will probably not affect the sheriffs very much; but it will provide a link in an organisation where there is no senior man of judicial or legal authority to whom they can apply. I think that this is fundamentally in the interests of the proper administration of the justices' court. I hope that the noble Lord will see his way to do this because I think it is very important. I should like him to consider carefully whether he might do so. I inserted the word "sheriff", as well as the words "sheriff principal", at the last minute and I apologise; but I must confess that the noble Lord has "bounced" this Bill on to the House and on to the public at short notice so that perhaps I do not have too much to apologise for. I hope that the noble Lord will give this matter some careful thought. I beg to move.


My Lords, I rise to support my noble friend. Of the cases that come up to the district court in the future, some may, if there is too much pressure on the district court, be sent to the sheriff court. Likewise, if there is pressure of business in the sheriff court, these cases may be sent down to the district court. It is the hope of the whole of this exercise that there should be the possibility of moving cases from one court to the other. This has been recognised by having the prosecutor at the district court level. He is called the procurator fiscal and he will be appointed in future by the Lord Advocate and an integral part of the whole prosecution system is in the hands of the one body, the Lord Advocate. Therefore, having the prosecution properly intertwined between the sheriff court and the district court, surely it is right that there should be integration at the other level of the court at the judicial level; and that is the hope of this Amendment. I would agree with my noble friend when he says that the sheriff principals may not—and may have said that they do not—want to accept this responsibility; but somebody must accept the responsibility for the oversight of these courts.


My Lords, I made it clear at Committee stage that we very much hope that the senior members of the Scottish judiciary will take an active interest in the work of the justices and assist and advise them in connection with their duties on the Bench. I am certain that on that point there is no difference between us. There has been some doubt—and this Amendment is another example of the continuance of that doubt—on how best it might be achieved: whether by a statutory provision laying down that the sheriff principal be chairman of every justices' committee in his sheriffdom, which is the first approach, or simply a member of each justices' committee, which is the second line of approach; or, whether the best type of arrangement might be one where no specific statutory provision was required.

In the course of our discussion at Committee stage, I undertook to obtain the views of those full-time sheriffs principal who are available at present. Their view was that a statutory provision on the lines proposed would not be useful. As I mentioned at Committee stage, there would be the problem of each sheriff principal having on average nine or ten justices' committees in his sheriffdom. Much of the work of these committees would be related to local administrative arrangements with which the sheriff principal would not otherwise be concerned and on which he would have little to offer by way of guidance. Contact between the professional judges in the sheriff court and the justices is inevitable because of common interests. If good relations are established—and the sheriff principal expects this to be so—there should be no difficulty with regard to the sheriff principal making his advice known. In short, the sheriffs principal consider that non-statutory rather than statutory arrangements are likely to prove the more effective in practice and these views apply equally to the proposal that the sheriff principal be a member of the justices' committee and to the proposal that he be an ex officio chairman of that Committee.

My Lords, I am a little confused, but I know the ability of advocates to argue on the principle that their client did not do it, and that if he did do it he thought he was justified; and if he was not justified he was not acting maliciously, and so on; but one of the justifications advanced at the last stage for not putting existing magistrates in the JP court, was that it would be wrong to make a man a justice of the peace if he did not want to be one. That has been clarified. There is nothing in the Bill which compels a bailie to sit on the justices' court if he does not want to. There is nothing to compel him to become a justice of the peace if he does not want to. But now we are saying, having consulted the sheriff principal, is it a useful thing to be a member of these committees. The noble Earl says, that it is not relevant whether they want to be on a committee or not. I think it is relevant.

I asked the noble Earl at Committee stage whether, in putting this proposal forward, he has consulted the sheriff principal. He said that he had not and I appreciate the fact that, if nothing else, time did not permit him to do so. But he did not demur at all when I said that I would consult them. I feel under an obligation, having consulted them and having made their views known to your Lordships, and it would be quite improper for me to say to them, "I am very sorry, but their Lordships did not think your advice mattered and you are going on these committees whether you like it or not." The effect, of course, is that if a sheriff principal thinks it will not serve a useful purpose he will be a nominal member of eight or nine committees which he will never attend, and I cannot think of anything more likely to sour relations between the justices and the sheriff principal than looking at the attendance sheet and saying, "That man is a fat lot of help. He has never yet been along."

On the other hand, when there is an opportunity for consultation, perhaps on the question of legal training, the advice of the sheriff principal or the sheriff will be valuable. In all my past experience of local government—and I am quite sure that of your Lordships who are in local government—the legal man's advice is almost invariably accepted, when it is taken as expert advice, and when one has a legal expert as one of one's number one is rather inclined to look upon him as just one like oneself. Therefore, I think that the sheriff principal is taking the view that his advice will always be available, that it will almost certainly be sought on those aspects where it can be of value, and that having been sought it is much more likely to be given effect to.

My Lords, the latest form of the Amendment, and I agree with the noble Earl——


My Lords, before the noble Lord moves on, I wonder whether he would tell us how the sheriffs were consulted. Were they consulted corporately or singly, were they unanimous or was there an overwhelming majority, and how was their opinion conveyed?


My Lords, they were consulted individually and their opinions concurred. They were unanimous, but that was not difficult because there are only two of them. When the reorganisation takes place at the beginning of the year, their numbers will be slightly increased. I hope that that satisfies the Liberal Party.

The latest form of the Amendment which we have before us goes wider than the sheriff principal, and provides that either the sheriff principal or the sheriff shall be ex officio a member of the justices' committee. The noble Earl had no need to apologise for the amended form. We are working very much against the clock in this matter, and I accept that it is a perfectly proper Amendment to put forward. By providing that the sheriff may be the ex officio member of the committee, the Amendment removes the difficulty of the sheriff principal being placed in the position of being a member of eight, nine or ten justices' committees, whereas the sheriff would sit on only one.

Your Lordships will appreciate that, because of the timing—although, as I said, the noble Earl had no need to apologise—I have had little time to consider the Amendment. Unfortunately, because of the fact that I was otherwise engaged for a long time yesterday, I did not see the Amendment until this morning. There is one technical difficulty. Whether we can provide in a Statute that the holder of this or that office should be an ex officio member of the committee is a point on which I have not been able to get satisfactory guidance from my official friends. It is quite possible to put on one or two persons, but to say in a Statute that one or the other should be on the committee presents possible difficulties.

It may very well be that the sheriff principal, in response to an earlier consultation, indicated that much more can be achieved in practice by flexible and informal arrangements than by explicit Statutory provisions. But, my Lords, as between the last stage and this stage I was prepared to be guided in relation to this matter by the views of the sheriff principal. I think it only right that the Government should endeavour to find out the views of the sheriffs in relation to being a member of the justices' committee in their sheriffdoms. Obviously, there has been no opportunity for me to consult the sheriffs individually or collectively, and to find out whether they have one view or a variety of views on this matter, but I think it would be proper to do so.

In asking the noble Earl not to press this Amendment at this stage, I cannot conscientiously either reject it or accept it on the basis of a full examination of the merits in so far as it relates to sheriffs. I can say that I will undertake to have the same kind of consultations in relation to the sheriffs as has been undertaken in relation to the sheriff principals, and when this has been done my right honourable friend the Secretary of State will undoubtedly take that into consideration in relation to the tabling of a Government Amendment in another place which might be restricted to the sheriffs. Notwithstanding what the noble Earl said at the outset, it will not be a surprise that I have said this, because I have had the benefit of more than two hours' discussion with the noble Earl on Monday and this morning, on the points of this Bill, and he knew in advance—because we spent the best part of half an hour on this point this morning—the line that I would be taking.

I hope that the time I have spent shows that I am anxious that the Bill should be put in the best possible form to make the justices' committees and the district courts work. So when I say that if the Amendment is withdrawn I will make certain that the proper consultations take place, and that they will be taken into account in relation to the amending of the Bill in another place, it is not an undertaking merely for the purpose of disposing of the Amendment today. It is an undertaking in the hope that if the Bill can be improved along these lines it will be, and I hope that the noble Earl will feel able to withdraw his Amendment.

The Earl of SELKIRK

My Lords, I take that point at once. I have the impression that the noble Lord's arguments are so thin that he must be extremely sympathetic to this Amendment. He said that it would really be far easier to deal with people informally than if they were statutorily compelled to associate together; that if you are on a board of directors or on a board of anything, you find it much easier to take outside advice than advice from your fellow colleagues. That simply is not true. None the less, I appreciate that. He said that their advice will always be available. I do not know whether he has ever tried ringing up sheriffs and asking for advice. With great respect, I doubt very much whether they are going to work as the noble Lord said and any justice of the peace that can ring up a sheriff and ask, "Please will you tell me——"


My Lords, I did not say that. I was referring to the justices' committee.

The Earl of SELKIRK

My Lords, I readily accept what the noble Lord says. May I say again that this point is important. The justices do not have the background of legal training. There is no Lord Chancellor and I think the sheriffs must be brought in as closely as possible to help the justices in their lay work. This is in the direct interests of good lay administration. But taking the noble Lord at his word, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 17 [Allowances]:

12.49 p.m.

Lord MOWBRAY and STOURTON moved Amendment No. 8:

Page 11, line 31, at end insert— ( ) Any justice not entitled to receive payments by way of financial loss allowance, shall be entitled to receive a payment by way of attendance allowance in the manner prescribed for district councillors by section 45 of the Local Government (Scotland) Act 1973.

The noble Lord said: My Lords, this Amendment is very similar to one which we moved at the Committee stage, and the noble Lord, Lord Hughes, showed sympathy with the intention. His main argument against it was that it opened the Bill too wide. This is a Bill dealing with district courts and, in all fairness, I think we should try to make the Bill as perfect as we can. In Clause 17 we have made provision for allowances for salaried and wage-earning justices. In all fairness, the self-employed justice is equally deserving of reimbursement. How does he work out his time? Take, for instance, the case of a justice who is a taxi driver. He has commitments to fares and may not be able to undertake some of them on days when the court will be sitting, and he will therefore have to employ somebody else to do that work. Take the case of the farmer: if he cannot do the work he will either have to get someone else in or pay overtime to another man. Take the instance of a man who runs a newspaper or tobacconist's shop. He may have to get someone to stand in for him. I am not holding that this is the only way in which this could be done, but we think it is a good way, with reference to the Scottish Local Government Act. I would therefore ask the noble Lord if he will consider whether he can accept this, purely in fairness and equity to those justices.

The Earl of SELKIRK

My Lords, I hope the noble Lord can say something about this matter, because it really is quite serious. It is particularly difficult, with inflation taking place as it is, to ascertain the correct amount. I should like to refer to the point put by the noble Lord, Lord Grant, if I may call him that, that jurors should be paid on the same basis as local councillors. It seems that the noble Lord would put justices in the same place as jurors, and this Amendment suggests that jurors should be on the same basis as councillors. They are supposed to do 24 days a year, which is quite a number; and there is no doubt that professional people, small shopkeepers and others who are not paid a weekly salary are in many cases quite suitable for these duties. I have a note here saying that the allowance for travelling, subsistence and fixed attendance at present is £2.37 for four hours and £4.77 for a period exceeding four hours. This is probably rather harsh on some people and I wonder whether the Government are looking at this in general terms aside from the principles which I have tried to incorporate in this Amendment.


My Lords, as a long-serving justice in this country I must, with very great regret, speak against this Amendment. Also, being a resident of this country—although the noble Lord was kind enough to allude to me as a Scottish woman the other day—I should like to say that we in England are led to believe that what Scotland says today England will do tomorrow—that is the saying North of the Border. If in fact this Amendment were passed, it might mean, certainly in Scotland in the near future and perhaps in England in the distant future, that magistrates would not be voluntary but paid.

I have been on to my clerk of the court this morning. We have 80 members of our petty sessional division, none of whom is paid loss of earnings allowances. They cover teachers, staffs of local authorities, members of local authorities, wage-earners, salaried people, the self-employed and housewives. We operate a system whereby one can claim petrol and subsistence expenses—at, I may say, rather too low a level with inflation as it is now—but we are all content. From the list I have read out, the noble Lord will know that this covers the whole spectrum of our society and we have people of all sorts and all levels of salaries and incomes represented on our magisterial bench. There is never a shortage of magistrates coming forward to be made justices of the peace by the Lord Chancellor. I have the honour to sit on the Lord Chancellor's Advisory Committee and have to interview a very great number of people who are willing to come forward and sit, knowing they will not be paid. If, as the Amendment would have it, the idea is that the magistrate should be paid on a level which is comparable to members of the local authority, I have looked up the Scottish legislation and it seems that no amount is fixed as regards Scotland. In England, as everybody knows, members of the local authority are paid £10 per attendance.

I do not think that the magistrates in this country would resent being thought of as comparable to local authority people—that is not the inference I want to draw—but I think they would resent the fact that after 510 years it is thought that they should cease to be voluntary bodies. The clerk of my court gave me an absolute assurance that out of the, I think, 80 members of our PSD, nobody claims loss of earnings because either their employers allow them the time off or they are willing to give up their time. I cannot believe that the people North of the Border would be any different in this respect from the magistracy in this country. I am sorry to have to speak against this Amendment, but having had some 22 years' experience in this country of sitting on the bench, I feel very strongly about this matter. I must apologise to my noble friends that, because of another meeting, I was unable to tell them of this beforehand. From what I have said, I hope it will be realised that I think it would be resented, certainly South of the Border.


My Lords, I think the intention of the Amendment was rather to probe the position that exists, because there is undoubtedly a fairly wide view, and I am happy to say that in most cases it is an erroneous view, that self-employed people are not entitled to claim under the provisions of financial loss allowance. I am very grateful to the noble Baroness, Lady Macleod, for what she said, but I hope that because of the views she has expressed she is correct in her assumption that what Scotland does today will be done by England tomorrow. I believe the position in both countries is the same: the magistrate is entitled to claim a payment by way of financial loss allowance. What the noble Baroness has said is that in her particular area none of them claims.

This does not alter the fact that if the law is the same on both sides of the Border, as I believe it to be, they can claim if they wish. The fact that they do not claim is a matter for them and is a tribute to their sense of public duty. It may be that even if they were aware of the allowance referred to by the Amendment, self-employed magistrates might not claim the allowance, any more than they might not claim a financial loss allowance. But the purpose of the Amendment is to take into account the circumstances of the self-employed person who wants to undertake duty as a justice but could not afford to do so were he not to receive payment for the loss of earnings he suffers.

It is to that effect that I wish to direct my remarks. Clause 17, as drafted, and without the Amendment, provides that a justice of the peace should be entitled to receive payments by way of financial loss allowance for duties other than those performed as a member of a licensing court or court of appeal and other duties in respect of which similar allowances are payable under other arrangements or where regulations provide that this section does not apply.

Thus, the effect of the Bill as it stands is that all justices attending district courts will be entitled to financial loss allowances. I am afraid, therefore, that the Amendment secures nothing because it refers to justices who would not be entitled to financial loss allowances. If they are all entitled the Amendment is of no effect. The lack of effectiveness of the Amendment indicates something of the complexities of the subject of attendance allowances and, if anything, strengthens the view which I expressed at Committee stage that this Bill is certainly not the place to seek to introduce these allowances for some categories of justices. There are substantial matters of principle involved. There is a strong body of opinion which holds that justices must not even appear to be receiving payment for their services, be it signing papers or acting as a judge in a court of law. That has been so effectively demonstrated by the contribution from the noble Baroness, Lady Macleod of Borve. I am certain that will continue to be the view of many justices on both sides of the Border.

There are also strong arguments for justices of the peace to be treated, for allowance purposes, in the same way as many others giving service in which there is an element of public duty, for example, witnesses and jurymen. The point was made by the noble Earl, Lord Selkirk, that there was no comparison; the number of occasions when a person might serve as a member of a jury or a witness would be few in comparison with the calls which are going to be made on justices. He referred to the fact that the noble and learned Lord, Lord Grant, said there was a case for paying jurors on the same basis as members of local authorities. The local authority comparison to which he was referring was the financial loss allowance, because the attendance allowance was not something that he dreamt of at that time and it still does not apply in Scotland because it does not take effect until the new authorities take up their full duties in May next year.

There are also strong arguments—and again I pray in aid the noble Baroness—for justices on both sides of the Border being dealt with on the same basis, because whether in Scotland, England or Wales, they are the Queen's justices. It is difficult to suggest that there should be a different method of treatment depending on which side of the Border they are operating.

Clause 17 re-enacts essentially the existing provisions governing the payment of allowances to justices in Scotland. The maximum financial loss allowance stands at present at £670 tax free. The attendance allowance to be paid to members of local authorities next year (announced provisionally as a maximum of £10) is taxable. So at present rates of tax it comes to the same thing for those who have tax liability. It is intended to be a unique arrangement which recognises the special position of the elected councillor who, like a Member of Parliament, represents the electorate. It must be accepted that the financial loss allowance provisions operate satisfactorily in many cases for self-employed persons, but I accept that there may be difficulty in some cases. I think it is possible, however, to exaggerate these somewhat and to gloss over too readily the injustices and inequalities likely to result if we were to move over to another system. There is certainly no doubt that such self-employed persons as shopkeepers will be eligible to receive financial loss allowances in accordance with the relevant regulations.

The case quoted by the noble Lord, Lord Mowbray and Stourton, should present no difficulty whatsoever, because it is not just a case of loss of earnings which can be taken into account in determining the payment of financial loss allowance; it has been accepted that the obligation to undertake expenditure to enable it is a relevant basis. Each of the cases he mentioned presents no difficulty whatsoever. As the name suggests, financial loss allowances are intended to cover the situation where a loss is incurred. That applies in the case of employed and self-employed persons. The important point is that I expect that a self-employed justice who, unlike a witness or a juror, would be likely to make claims regularly, would be able, in discussion with the local authority officials concerned, to establish a satisfactory method for showing entitlement.

I am sure that we could not contemplate within the restricted scope of this present Bill to seek to introduce a new system of allowances. I hope that I have clarified the point that if it should prove to be necessary, again in discussions with the authorities, not in relation to justices generally but in any document to which we could make reference to financial loss allowance, that there is no embargo on self-employed persons who can show they are involved in expenditure or suffer loss, there is no embargo on their claiming. I hope that will meet the point.


My Lords, I am grateful to the noble Lord for allaying my fears and explaining the points so carefully. If my noble friend is content, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the District Courts (Scotland) Bill [H.L.] has consented to place Her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament, for the purposes of the Bill.

Then, Standing Order No. 44 having been suspended (pursuant to Resolution):


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

Moved, That the Bill be read 3a.—(Lord Hughes.)

The Earl of SELKIRK

My Lords, may I thank the noble Lord, Lord Hughes, for the opportunity that he has given for discussing this Bill. It has been of enormous value to me and I should like to say how grateful I am to him.

On Question, Bill read 3a: Amendment (privilege) made; Bill passed, and sent to the Commons.

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