§ 3.5 p.m.
§ THE MINISTER OF STATE, SCOTTISH OFFICE (LORD HUGHES)
My Lords, I beg to move that the Bill be now read a second time. This Bill, the District Courts (Scotland) Bill, is one of the consequences of local government reform. At present Scotland has two lay summary criminal courts with a long and 1409 historic tradition—the burgh court, sometimes called the police court, and the justice of the peace court. Over the years these two courts, one exercising jurisdiction over burghs and the other mainly over landward or county areas, have dealt with many of the less serious criminal cases in Scotland. Under the Local Government (Scotland) Act 1973 the burgh and the county as local government units cease to exist on May 16, 1975. This removes the administrative structure on which the two existing courts are based, and fresh arrangements are therefore necessary for the disposal of summary criminal cases. Without going into much detail on the background, I propose to describe briefly the steps leading to the arrangements now before your Lordships.
In March 1973 the then Secretary of State for Scotland presented to Parliament a White Paper called Justices of the Peace and Justices' Courts. It proposed a system of justices' courts based on the area of the island or district authority but to be financed by the Government and to be staffed by officers of the sheriff court service. These proposals, which preserved lay participation in the administration of justice, were strongly criticised because they made no arrangement for the provision of legal advice to the lay bench. The clerk of the court would be provided by the sheriff clerk service, which, like the bench, would have no legal qualifications. A second set of proposals was announced by the then Secretary of State on October 18, 1973. These proposals envisaged the absorption by the sheriff court, with additional professional judges, of all the business of the present lay courts. These arrangements were criticised by those who wished participation by lay men and women in the administration of justice in Scotland to continue.
No legislation was introduced by the previous Government before the Dissolution of Parliament in February of this year. What we had to do on coming into Office, therefore, was to work out a solution while taking into account the reaction to the earlier proposals and the urgency as May 1975 approached. The Secretary of State and the Lord Advocate accepted the argument that there should be a lay element on the bench to 1410 deal with less serious criminal cases. In addition, the local authorities made representations on the importance of the role played by elected members in the burgh courts. We concluded that the best system in the time available was to replace the burgh and justice of the peace courts by new courts to be administered by the islands and district authorities who would be responsible for providing them with clerks from their legally qualified staff. The judges to sit on the bench will come from three sources; first, the burgh magistrates in office on May 15, 1975, who will become justices of the peace; second, nominations by the district and islands councils; and third, existing justices of the peace. The choice of the existing justices of the peace requires little explanation. In the case of the burgh magistrates, the fundamental reason for their appointment is the need to have available experienced manpower for the bench on May 16, 1975. The magistrates are much the most experienced lay judges in Scotland and it would be unrealistic to seek to make new arrangements without bringing them within their scope. The nomination of ex officio justices by district councils will preserve the long and valued association of local authorities with the lay courts in Scotland.
As nearly as may be, these proposals will carry over into the new local government system the democratic features of the existing JP and burgh courts. We also propose some important improvements in the administration of lay summary justice. Training will be provided for those who sit on the bench; legal aid will be available in the new court from the beginning; and power is conferred on the Lord Advocate to assume responsibility for all prosecutions in the district court through the procurator fiscal service.
My Lords, I turn now to the provisions of the Bill. It is in three fairly well defined Parts. Part I, covering Clauses 1 to 8, includes provisions on the district court, its administration, staffing and facilities. Clause 1(1) abolishes all existing inferior courts on May 16, 1975, and establishes on that date a district court for each commission area. "Commission area" is defined in Clause 26 as "a district or islands area within the meaning of the Local Government (Scotland) 1411 Act 1973". I should perhaps say that "inferior courts" is a technical expression which does no more than distinguish these courts from the other courts of summary jurisdiction.
Clause 1(2) transfers to a justice of the peace the functions of burgh magistrates when they are acting otherwise than as a court of summary jurisdiction. The remainder of this clause provides for proceedings to be continued smoothly over the transition to the new system and for the transfer of records and of documents. I should, however, say a few words about the power in subsection (1) to direct that no district court should be set up in particular commission areas. There are one or two rural areas where there are virtually no burgh or justice of the peace courts because there are so few criminal cases to be dealt with. Those few are dealt with in the sheriff court. If the potential business seems to make the setting up of a district court unnecessary the Secretary of State can direct accordingly, but he would first wish to have the views of the authorities likely to be concerned and we have not yet reached that stage.
Clause 2(1) provides that the commission area, which as I explained is the area of an islands or district authority, shall be the district of the district court. The local authority determine the places, days and times of sittings. In many districts the district court will normally sit in one town only but have scheduled sittings in other towns. Local authorities will no doubt give some preliminary consideration to this matter in the next few weeks. Clause 2(2) provides that the bench shall be constituted by a stipendiary magistrate or by one or more justices. I shall say more about stipendiary magistrates when I come to Clause 5. But on the question of numbers on the bench, what we have done is to allow the maximum flexibility. Scotland has a tradition of a single burgh magistrate on the bench. In the justice of the peace court the tradition is for two or more judges to sit together.
Clause 3 gives the district court the powers and jurisdiction of the existing courts. When the court is constituted by a stipendiary magistrate it will as at present have the wider summary criminal powers and jurisdiction of a 1412 sheriff. The maximum fine which can be imposed by the lay court on convicting a person of a common law offence is raised from £50 to £100. Clause 4 deals with procedure and practice in the district court. Rules of procedure and practice applying to the existing courts shall apply to the district court and the powers of the High Court under the Summary Jurisdiction (Scotland) Act 1954 to regulate procedure are extended to procedure in the district court.
Clause 5 includes provision for the appointment of stipendiary magistrates. It is open to a local authority to appoint a stipendiary magistrate, but an appointment cannot be made until the Secretary of State approves the establishment of the office, the salary and the person proposed. These approvals are necessary because the creation of a post of stipendiary magistrate is a major step which would justify the involvement of the Secretary of State. The three existing stipendiary magistrates in Glasgow will continue to hold office under subsection (4). Every stipendiary magistrate will be a justice of the peace by virtue of his office.
Clause 6 contains an important provision. At present, there is a public prosecution system in the lay courts as there is in the sheriff and High Court. But the appointments are made separately to each lay court—in each burgh court by the town council, in each justice of the peace court by quarter sessions. Although appointed by those bodies, they are not, of course, answerable to them for their public prosecution decisions in individual cases. Except in the cities they are normally local solicitors acting part-time on a fee-paid basis.
This system has weaknesses. Each prosecutor is an isolated unit and, short of sheer inefficiency or misconduct, answerable to no one for his actions. I know that these public prosecutors, within their experience, carry out their duties conscientiously and carefully. But such a system carries within it the likelihood of inconsistency and idiosyncrasy; and it is desirable in any case that a prosecutor acting in the public interest should be answerable to an appropriate authority for his actions. Accordingly, we have decided that public prosecution in the new courts should become a responsibility of the procurator fiscal service, who are already the prosecutors in the sheriff court 1413 and who are answerable to the Lord Advocate as head of the criminal authorities in Scotland.
This is provided for in Clause 6(1) and 6(2). But on account of the shortage of legally qualified staff this system cannot be brought into operation throughout Scotland by May 16, 1975, though we hope it will be in some areas such as the cities. Accordingly, subsections (3) to (6) provide that the district authority will continue to provide a public prosecutor until the Lord Advocate is in a position to take over. We are providing that, during this period, the Lord Advocate will have a degree of control over the local prosecutor. He will be able to issue directions to him and call for reports from him.
Clause 7 places a duty on each local authority to appoint and employ an officer to act as clerk of the district court who shall also act as legal assessor. This clause is drafted in a way which will enable the local authority to appoint a clerk on a part-time basis if they wish to do so. It would also be possible for a district council to employ by agreement with a regional council an officer placed at the disposal of a district council. The local authorities have confirmed that they will make available legally qualified staff to act as clerks of the district court.
Clause 8 lays a duty on the local authority to provide suitable and sufficient premises and facilities for the purpose of the district court. Subsection (2) of the clause is intended to ease the transition from the present system to the new one by providing for the use of local authority premises for the purposes of the district court which are used to any extent by the existing courts. When the Lord Advocate takes over prosecutions accommodation used by the prosecutor will be made available to the procurator fiscal.
Part II of the Bill is concerned with justices and clerks of the peace. Clause 9 contains new provisions governing the appointment of justices as from May 16, 1975. At present the appointment of justices is effected by the inscription of their names under the Secretary of State's authority in the Commissions of the Peace which have been issued in each county. From May 16, 1975, new commissions will be issued for district and islands areas the inscription of names in the com- 1414 missions will be discontinued. New commissions in which names are not inscribed were issued in England and Wales with effect from April 1 last under authority of the Administration of Justice Act 1973. The clause also re-enacts in relation to the new commission areas the existing law contained in Section 1 of the Justices of the Peace Act 1949, relating to the residence qualification of justices. Under Clause 10 persons who are serving either as justices of the peace or as burgh magistrates immediately before May 16, 1975, are to become justices of the peace on and after that date for the new commission areas. This clause also contains provisions governing the determination of the commission areas in which these persons are to hold office.
Clause 11 provides that all existing justices of the peace who hold office by virtue of any other office will cease to do so on May 16, 1975. There are two groups of persons in this category. The first is holders of high office and local dignitaries who are named by office in individual Commissions of the Peace; the second consists of chairmen of local authorities and a few other persons who are ex officio justices under Statute. The clause provides for an entirely new class of ex officio justices who are to be nominated to hold office by district and islands authorities from among their own members. The appointment as justices will last only so long as the councillors concerned remain members of the local authority and retain the nomination. Clauses 12 and 13 re-enact in terms appropriate to the new administrative arrangements existing law relating to disqualifications of justices and of solicitors who are justices.
Clause 14 gives a new power to the Secretary of State to make schemes for the instruction of justices of the peace and lays a duty on the justices' committee for each area to implement and administer such schemes. Lack of training requirements and facilities for the judges of the lay courts is one of the great weaknesses at present and these powers will enable us to remedy it. All justices will be expected to accept training appropriate to their past experience, if any, and there will be power under the next clause to disqualify any who fail to accept training from sitting on the bench.
1415 Clause 15 looks rather formidable, but I am advised that it is essentially a re-enactment of existing provisions in a form suitable for the new arrangements. Under Section 4 of the Justices of the Peace Act 1949 a supplemental list is kept in connection with each Commission of the Peace, and justices whose names are entered in it are disqualified from doing any act as a justice, except for what are commonly referred to as "signing duties". In terms of the section as read with Section 6 of the Justices of the Peace Act 1968 the names of justices are entered in the supplemental list when they attain the age of 70, or at any time if the Secretary of State so directs in circumstances as provided for by the Statute. Clause 9(9)(d), provides for a single supplemental list for Scotland to be kept by the Secretary of State. Clause 15 provides for the entry of names in it and for the effect of such entry. The effect is similar to that already in the supplemental lists now attached to the Commissions of the Peace which will be superseded under the Bill.
Clause 16 includes provisions for the setting up of a justices' committee in each islands or district authority area. The justices' committee, which is to be elected annually by a meeting of all the justices for an area, will have various functions. These will be toassist and advise the local authority concerned on any matter relating to the administration of the court; to approve the duty rota of justices",to see that the local training arrangements are effected, and to take any other appropriate steps to secure effective administration of justice in the district court. A stipendiary magistrate will be a member of the justices' committee ex officio. The clerk of the peace, to whom I shall refer in greater detail later, will be secretary to the committee. Clause 17 is concerned with the payment of allowances to justices. This is essentially a re-enactment of the existing law adjusted to take account of the new arrangements. Justices appointed under the Bill will receive the same allowances as the present justices.
I now come—in Clause 18 and in Clause 22 which I shall discuss with it—to a complicated part of the consequential to the previous proposals. I hope 1416 the House will bear with me. I should like to distinguish three functions which clerks perform—as clerk of the criminal court, as clerk of the liquor licensing court and as clerk to the justices, or the burgh magistrates, as a body. These are three separate functions. At present they are normally carried out in burghs by the town clerk or one of his staff; in counties they are carried out by the clerk of the peace, usually part-time by a local solicitor remunerated on a fee basis.
What of the future? I have already spoken of Clause 7, making it a duty of the district council to provide the clerk of the criminal court. This is the main task. But the existing burgh or county basis on which they are now provided for will disappear. Provision must also be made for the other two functions, those of clerk to the licensing court and court of appeal, and of clerk to the justices as a body. What the Bill proposes on this is the simple and straightforward solution that, as with the function of clerk to the criminal court, these two functions should be given to staff appointed for the purpose by the district council.
Clause 18 provides for the appointment by the local authority of a clerk to the justices as a body. For reasons of tradition we are retaining the title of clerk of the peace for this office. Clause 22 lays a duty on the district council to appoint an officer to act as clerk of the licensing court and court of appeal. These two clauses taken with Clause 7 provide for the assumption by officers of the local authority of the three functions now carried out by clerks of the peace in counties. In some areas all these functions (or two of them) may be given to the same officer—that will be a matter for the local authority. It follows that the existing office of clerks of peace will be discontinued; this is provided for in Clause 18 and there is due provision for compensation in Clause 19.
I should perhaps add, with reference to the Clayson Report on the Scottish Licensing Law, that while the provisions in the Bill coincide with the Committee's recommendation regarding the clerk to the liquor licensing authority, the Government are not committed by including these provisions to the Committee's view on the composition of that authority. 1417 That is for the future. We will give the matter careful and separate consideration in the light of the comments we have received on the Report.
I do not think it necessary to go through Part III of the Bill in detail. But in addition to Clauses 19 and 22, which I have already mentioned, I ought to say a few words about Clauses 21 and 23. Clause 21 makes amendments to the Legal Aid (Scotland) Act 1967 and the Legal Advice and Assistance Act 1972. One of the main criticisms of the existing courts is that legal aid is not available there. We intend, as I have said, to introduce legal aid as from May 16, 1975, and the method by which it will be done is by an Order under the Legal Aid (Scotland) Act 1967. The amendments in the clause pave the way for the Order. The estimated cost of extending legal aid to the district court is £130,000 annually. Clause 23 provides for expenditure on district court and justice of the peace business to be met by the local authorities. This expenditure will be offset by fines and will be reckonable for rate support grant. It will be possible for the Secretary of State under subsection (5) to adjust the Rate Support Grant Order for 1975–76.
My Lords, I hope that what I have said makes it clear that what we propose offers a workable and reasonable system which can come into operation on May 16, 1975. The general proposals have been welcomed by the local authority associations and will, I trust, find support elsewhere.
THE EARL OF SELKIRK
My Lords, before the noble Lord sits down, may I ask him one question. The last paragraph of the Bill says that seven clauses will not come into force on May 16. Does that mean (hey will come into force before or after?
§ LORD HUGHES
My Lords, just on the offchance that there are no other questions, perhaps the noble Earl, Lord Selkirk will allow me to answer that question later on. My Lords, I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Hughes.)
§ 3.27 p.m.
§ LORD MOWBRAY AND STOURTON
My Lords, we are indeed grateful for the 1418 way in which the noble Lord, Lord Hughes, has introduced and explained this Bill to us. With the advent of a new local government system only six months away and the extinction then of the various burgh and JP courts, no one can deny there is a certain amount of urgency about this matter. These courts which, in 1946, dealt with proceedings against some 57,000 persons, by 1970 were dealing with some 93,000 persons. Admittedly, by this later date, the sheriff courts had increased their workload appreciably more, for whereas in 1946 they dealt with some 32,000 persons, in 1970 they dealt with 117,000 persons, some 24,000 more cases than all the other inferior courts together.
My Lords, as interested noble Lords will be aware, we on this side of the House in our White Paper of March last year, initially intended establishing a network of lay justices' courts with more power than the existing courts. Clerks of these local courts do not necessarily at the present time have legal training. The Faculty of Advocates produced a memorandum which, among other points, strongly argued that legal training and experience were essential in ail summary criminal courts. This view was supported also by the Scots Law Society. In view of the limited supply of other talent, doubt was expressed as to whether there would be a sufficiency of such people available. Therefore, meeting what seemed the overwhelming wish of the Scots Bar and the Scots Law Society, we had decided to expand the sheriff courts with some new kind of professional judge, and to strengthen generally all the procurator fiscal and sheriff' clerk service.
In view of the overwhelming professional views and the lack of any public demand for the lay magistrates system to continue in Scotland, the only real zeal for the continued existence of this lay magisterial system seems to have come from the lay magistrates themselves. I appreciate that under the Bill before us there is a choice before the district councils. They may, if they wish, appoint stipendiary magistrates. Equally, they can nominate up to one-third of their number to serve as justices of the peace and to administer justice. This number will come into being when the new legal aids will be operating for the first time 1419 as the noble Lord, Lord Hughes, has just told us. This will mean that there will be more lawyers then representing defendants. The only non-legal people will probably be the JPs themselves. Experience has shown the lack of uniformity in the administration of these lay courts.
In the past bailies have become bailies not, I suggest, because of any special ability to act as a magistrate but more on the principle of it being Buggins' turn. Feelings of injustice have sometimes been generated due so often to the procedures and views of basic legal rights which have been adopted by presiding lay magistrates. There have been numerous cases recently of the burgh courts' decisions having to be overturned by the appeals courts for these reasons. For instance, we had in Edinburgh last year an example. A bailie who was presiding noticed a witness shaking his head as he, the bailie, was speaking, something which many of us do as Ministers and others speak. But this bailie immediately had that man sent down to the cells, and after the case he was brought out and without any further explanation he was found guilty of contempt of court. That is just one example.
As the Minister has explained to us, Clause 14 provides for courses of instruction for justices of the peace, but—and this is a serious point which worries me—there is no guarantee that come next May any of these nominated justices of the peace will have attended these courses, despite the long-term provisions of Clause 15 to which the noble Lord the Minister has referred. The new district courts will also become the licensing courts. In the past the licensing courts have—regrettably, I think we would all agree—all too often dealt with these items along Party lines, with one Party voting for and one Party against. We had proposed, as the noble Lord will be aware, to have licensing boards with sheriffs having the right of appeal. I think that this will be a matter which we shall need to watch closely in the future.
Before I finish my speech I should like to say that we on these Benches are looking forward to the maiden speech of the noble Lord, Lord Wallace of Campsie; with his great experience as chairman of East Kilbride he will have much know- 1420 ledge of matters of this kind. As I shall not have a chance later I should like to welcome him now. As I said at the beginning, we regret that the Government have not taken more heed of the professional advice given. I cannot refrain from thinking that the desire to please local politicians has caused them to produce this Bill, perhaps, who knows, even overriding the advice of their own law officers. But that said, we must have courts working in six months' time, so we shall hope to improve later some of the measures in this Bill while to-day somewhat half-heartedly giving it a Second Reading.
§ 3.34 p.m.
§ LORD WALLACE OF CAMPSIE
My Lords, I ask your Lordships' indulgence, as this is the first time I have had the privilege of addressing the House. However, I am fortunate in that I have been given the opportunity of speaking on a subject with which I have some acquaintance. I am a member of the Law Society of Scotland, an honorary sheriff of Lanarkshire and a justice of the peace: and in my many other activities I have close associations with local government and, consequently, I am reasonably aware of the changes necessary in legislation pertaining to the appropriate courts resulting from local government reform in Scotland.
Within a relatively short period of time there have been different approaches by two Governments about the way in which local burgh and justice of the peace courts in Scotland should be replaced. As the noble Lord, Lord Hughes, has said, the Conservatives, when in power, first proposed the setting up of new justices courts with justices on the bench and members of the sheriffs clerks service as clerks of court. Subsequently they proposed the appointment of additional professional judges to handle all the business of the present lay courts. As I appreciate the position, the objections to the first proposal were mainly on the ground that a bench which was not legally qualified was to be assisted by clerks without legal qualification, and the objections to the second proposal were mainly from those who thought that participation by lay men and women in the administration of justice in Scotland should be continued.
Seeking to analyse the situation, it seems to me that there are two schools 1421 of thought in Scotland. One school of thought, supported by the legal profession, is that we now have the opportunity to dispense with what they call amateur justice. The other school of thought takes the view, which I have already touched upon; namely, that participation by lay men and women in the administration of justice in Scotland should be continued. There is, in my opinion, merit in both schools of thought. While I am bound to say, as the noble Lord opposite said a few moments ago, that reference could be made to reported criticisms of lay benches expressed by the judiciary appeal court in Scotland, these are isolated cases, and I would submit that those who have sat as lay magistrates and justices over the past years in the burgh and justices of the peace courts, speaking generally, have served the community well. They have constituted the broad base of the pyramid of Scottish criminal jurisdiction. They have brought to their task humanity coupled with the good sense that they have acquired throughout their everyday lives and experience in the community, and it cannot be over emphasised that lay magistrates have performed this public service unstintingly through the years with little recognition of their work.
It may please your Lordships to recognise, as the Minister has said, that this Bill provides not only to replace the present burgh and justices of the peace courts with a district court for each local authority but also provides a number of important improvements. It is of the utmost importance to minimise disturbance in the transitional process, and I respectfully submit that adequate provision has been made in this regard. Training schemes are envisaged for justices. This, in my opinion, is very important indeed. Lay men and women who are to sit in judgment on their fellow citizens should take full advantage of such provisions.
The best experience is no doubt acquired by sitting on the bench, but there is a need for more formal training, particularly when a man or woman is starting off on the bench. While it is intended to continue with lay justices, the Government's proposals also provide for stipendiary magistrates. It will be for the local people to consider whether the volume of business in their district court is too great to be dealt with solely by lay 1422 justices and whether the Secretary of State's approval should be sought for the appointment of a stipendiary magistrate or magistrates. For my part, if I may, I strongly recommend that wherever it is justified stipendiary magistrates should be appointed. However, having said that, I realise it may not be practical to make such appointments in remote areas.
As will be seen, each local authority is to appoint an officer to act as clerk of the district court. As the official appointed is also to act as assessor to the lay justices, it is appropriate that he or she should be a person qualified in law; this, I think, is appropriate, and the Minister himself has confirmed it. Finally, the Bill makes provision for legal aid in the district courts, which is excellent, and some I think might say it is overdue. I would only add that I believe the present burgh and justice of the peace courts in Scotland are the only criminal courts in Britain where legal aid is not available, and I beg to commend this Bill to the support of the House.
§ 3.40 p.m.
THE EARL OF SELKIRK
My Lords, it is my privilege to congratulate the noble Lord, Lord Wallace of Campsie, on a most interesting and balanced speech, spoken with very high authority and wide experience. He has been a distinguished chairman at East Kilbride and, I believe, also at the new town of Stonehouse. East Kilbride, for those who do not know it, is indeed a model town, and I strongly commend the Bruce Hotel to anybody who wants refreshment before entering Glasgow. I hope that the noble Lord will speak to us again on these subjects on which he speaks with such wide and full authority. I find myself in very broad agreement with a great deal of what he said.
We are all grateful to the noble Lord, Lord Hughes, for introducing this Bill. He went a little fast for me to follow every word that he said, but I do not think he underestimated—I do not—that this is a very important Bill indeed. It is true that it deals only with what we call the inferior courts which do not have very wide powers, but a greater number of people come in contact with them than with any of the other courts. I do not know whether I am right in saying that there is an element of hurry about this 1423 Bill. It certainly seems to have been changed a little at the end, and the draftsman may have written it a little more clearly, if his instructions had been straightforward and simple at the very outset. Leaving that aside, there is one point I am worried about. Who is really in charge of these courts? We find, for instance, that the magistrates are to be appointed by the Secretary of State, the buildings and costs are the concern of the local authority, the stipendiary magistrates arc substantially to be appointed by the Secretary of State, the clerk of the peace by the local authority, the prosecutor by the Lord Advocate and the sittings are to be decided by the local authority. There does not seem to be anyone who will be responsible for seeing that these courts are run efficiently, and that business is conducted quickly and disposed of.
I confess that I have a good deal of sympathy with the idea of integrating these courts with the sheriff courts, and particularly with the Statutory Instrument which we have coming on later to cover the appointment of full-time sheriff principals. They seem to me to be admirably suited to exercise over these courts just that degree of supervisory powers which they exercise over the sheriffs' courts at the present time, and I believe this to be an extremely valuable step forward. I am sorry indeed that the Government have not thought it right to take that course under this Bill. I believe that that would be much more suitable than leaving matters in the hands of the district clerk, whoever it may be.
I was worried about the lack of any reference in the Bill to qualified clerks or qualified assessors. The noble Lord made several references to this aspect in the course of his remarks, assuring us that it is the intention of the Government that most of these posts will be filled by people who are qualified. He said that he had the assurance of the local authorities that they would see to this. I think we must cover this in the Bill. I do not think we can leave it just to an assurance by local authorities that they will do something. We must be quite clear that these courts are not in the hands of people who are unqualified. We are, after all, dealing with the framework of law. People may have common sense, and indeed lawyers 1424 have much common sense, but there is a scaffolding which has been built up by the experience of lawyers over many years, and it would be quite wrong to think that we could break loose of that to too great an extent.
I am glad to see that legal aid is being made available in these courts, because I think it is necessary. I am a little surprised at the figure that the noble Lord has given, and I am also a little surprised to see that there is no reference to that figure in the Financial Memorandum attached to this Bill. That is generally done and I am rather surprised that it has not been done this time. I have great doubts about Clause 11, and it gives me the impression of being rather slapdash. One-third of the members of any local district council can be lay magistrates, and that figure seems to be very high compared with the number of bailies in most of the burghs in Scotland at the present time. It is a very high figure—certainly very much higher than the number of bailies we had in Edinburgh when I was there. I do not know how it compares with other burghs, but it seems a big figure.
I wonder whether it is wise, with great respect to the noble Lord, Lord Hughes, to bring election to public office in such close touch with the judiciary, even in these junior courts. I know we have had bailies for a fairly long time, but the system does not go back so very far in history. A long time ago the burgh was charged with the duty to maintain law and order and that duty was fulfilled. To-day this duty has gone. The responsibility here is the Secretary of State's—at least I think that is what is intended—but how can he be responsible when he does not appoint the magistrate and it is run substantially from the local district? I think we ought to think very seriously about whether the number is right, and about whether it would be better if the Secretary of State, or maybe even councillors, made appointments, and if the local authority was not simply free to appoint a very substantial number of people and to demand that they should be made magistrates. I think that this clause will need very careful looking at indeed.
My Lords, I wonder whether we could have confirmation of this point. There are certain powers taken under this Bill 1425 by the Lord Advocate to direct the local prosecutors. Is it the intention that the Lord Advocate will appoint the local prosecutors in due course? The word "until" is a peculiar word which I see at the beginning of this sentence.Until the Lord Advocate directs that all prosecutions … shall proceed".Does that indicate that the Lord Advocate will in due course, when he can find the people, appoint procurators fiscal who will carry out the prosecutions in all these inferior courts? If the noble Lord can show that, I shall be very happy indeed.
I think I am correct in saying that the specially noted clauses come into effect on the Royal Assent, and that the others are postponed until after May 16. That is my understanding. There are a number of questions which we might ask on this. I hope that the noble Lord will not try to bulldoze this Bill through the House. He has a great ability to do so when he wishes, so I hope he will give us ample opportunity to discuss it. It is not a Party Bill and it is one of very great importance to Scotland, on which there are differences of opinion. I think we should look at those differences very closely indeed.
§ 3.49 p.m.
§ LORD MACKIE OF BENSHIE
My Lords, let me first congratulate the maiden speaker, Lord Wallace of Campsie, on his speech which I greatly enjoyed, and from which it was very obvious that he knew a great deal about the subject. I myself have the unique experience, while having little knowledge of the law, of probably being one of the few Members of your Lordships' House who has appeared before a bench of English JPs as well as before a bailie in Scotland, that bailie later becoming my mother-in-law. I do not want to say very much on this Bill. I would merely reinforce the expression of doubt of the noble Lord, Lord Mowbray and Stourton, and of the noble Earl, Lord Selkirk, on the political or district council appointment of magistrates. I must say that many people, both lawyers in Scotland and members of district councils, past, present and future, and of county councils in the past, have expressed grave disquiet to me about this clause. I think that the Government should look at it again. To say that the district council 1426 or island council may appoint up to one-third of its members appears to me to lay the way open to grave political misuse.
We in Scotland now have a great number of district councils which are wholly political and others which are becoming more so, and it is quite possible that instead of it simply being Buggin's turn to appoint bailies they might appoint en bloc a number of members of only one Party. This has happened in local authorities in the past. I cannot say that I share the high view of bailies taken by speakers up to now. There have been some excellent and admirable ones in the past. I am not sure whether or not the noble Lord, Lord Hughes, has been a bailie in his distinguished career but if he has been I am perfectly sure he was a splendid bailie and dispensed justice with that smooth air with which he dispenses law in the Chamber.
The subject of lay magistrates, particularly bailies, has been a matter for humour in Scotland for many generations. I had thought that we should now have a splendid chance of getting rid of that situation. I agree with the notion of lay magistrates. There are many people who can render great service to the law and to the community. I think that the district authorities should have some hand in nominating them. However, the present Bill spoils an essential measure, about which there is some urgency, by including the authority for district authorities to nominate these magistrates without reference to the Secretary of State.
The Bill also cuts across the notion, which I understand is the practice in England and which is doing a great deal of good, of mandatory training for magistrates. I understand that in England no newly appointed magistrate may pronounce until he has been six months on the bench and has attended a number of lectures. This appears to me to be quite excellent. I am a little doubtful about the clause. I assume from the Minister's speech that it will have mandatory effect in Scotland, but that is not said in the Bill. The Bill reads—… may make schemes and provide courses".I trust that this will be mandatory because it is obviously part of the value of a lay magistrate that he should be trained. It is also part of his great value that he should have some experience, and to 1427 appoint councillors as JPs only for the length of their time as councillors seems to make nonsense of this training scheme. I hope that the noble Lord, Lord Hughes, will further consider this point when we come to Committee. Apart from this point, on which we have grave disquiet, we on these Benches consider that the Bill is practical, useful and indeed necessary by May 15.
§ 3.53 p.m.
§ LORD BALERNO
My Lords, I should like to join other noble Lords in congratulating the noble Lord, Lord Wallace of Campsie, on his maiden speech. It was extremely interesting, coming as it does from one who has had practical experience of these lower courts and who is an honorary sheriff substitute. If I do not go the whole way with him I hope he will forgive me, but I discerned at certain points that he was not quite sure which was the better argument. I must declare an interest in this matter both as a JP and as one who has been on the supplemental list for six years. I am also a member of the Central Advisory Committee for Scotland on Justices of the Peace. This is a committee presided over by the Lord Justice Clerk with duty to report to the Secretary of State for Scotland; but I would say quite emphatically that I am to-day expressing my own personal views in this matter.
My Lords, the reorganisation of the burgh courts and of the JP courts in Scotland is greatly overdue. The burgh court is a product of the 19th century and. as some noble Lords have already said, the clerk may or may not be legally qualified yet he has the duty to advise the magistrate, the bailie or the police judge about court procedure. At present the" prosecutor is likewise appointed by the authority but is not answerable to the Lord Advocate, who is responsible for all other prosecutions in Scotland with the exception of these lower courts.
The stories about the Scottish burgh courts and their scandals are perpetually enlivening items in the local Press of Scotland. Recently one Edinburgh bailee was quoted in the Scotsman as saying——When I am on the bench I look at the circumstances and the guy in front of me—there is more humanity in the burgh courts.1428 What is human about keeping a woman in custody for three weeks before trial when the charge was one of breaking a shop window? Common failings in the burgh courts are to refuse bail and also to refuse time to pay a fine. To give another instance, a female accused applied for bail. The prosecutor asked for custody to enable him to make out a warrant of an unspecified nature. The bailee refused to listen to the accused and refused bail, telling her that she could speak at her trial. It was subsequently discovered that the woman was once professionally employed and was living with her husband at a fixed address. The complaint was one of fraud by presenting a cheque for £3 with insufficient funds to cover it. The charge was subsequently deserted by the prosecutor.
In another case last March a youth was found sleeping on a bench at Waverley Station at 7 p.m. He pleaded not guilty to vagrancy and insisted that he had a hostel address. The prosecutor said he was not aware that the man had any fixed address and the bailie, without any further inquiry, agreed that the accused be kept in custody and trial was fixed. The youth, realising that he was going to be kept in prison for five days, changed his plea to guilty. In one month recently in the Edinburgh burgh court, of a total of 288 persons appearing from custody 257 pleaded guilty and were sentenced immediately. Not one case was continued to allow for a report to be prepared before sentence. Bail was a relevant consideration in 27 cases. In 21 of these the bailie, or the magistrate, made his decision without any further information. One of the accused asked for a reduction of the bail as he had financial commitments to meet. The clerk of the court silenced him, saying that bail could not be reduced.
There are several other cases which I could quote but I will spare your Lordships more harrowing stories of the miscarriage of justice in these courts. They and many others are related in the daily newspaper, the Scotsman, of July 18 and 19 last. I will however cite one remark by a bailie to a defender.You must hae done it or the polis widna have brought ye here".These courts are a blight on our society. What then does this Bill do to improve the matter? First, it provides legal aid 1429 for the defender. That is good and all are agreed that it is high time that legal aid was provided. As one noble Lord has said to-day, "These are the only courts in which legal aid has not been available". I would ask your Lordships to note that the only party to the proceedings now without legal aid will be the judge. Secondly, the Bill provides that ultimately the Lord Advocate will take over public prosecution. But why on earth have we to wait? When he answers the debate, can the noble Lord, Lord Hughes, give us an assurance that the delay will be only a matter of months to allow time for readjustment? Thirdly, there are to be suitable training schemes for justices, and the Bill lays it on the Justices Committee to implement their training. What is meant by "training"? I have a copy of a Memorandum on this subject prepared for the Advisory Committee. Inter alia, it states:It is probably desirable that the basic training should be given not only in, say, weekly lectures, but also in a few more intensive sessions, for instance by devoting occasional whole Saturdays or a weekend residential course to the work.That is excellent.
My Lords, what in this Bill are the hindrances to the improvement of justice in these courts? First, and most emphatically, is the provision, as so many other noble Lords have already stated, in Clause 11, for the local authority to nominate up to one-third of its members to be ex officio justices in the district court. Elected members of a local authority come and go with considerable frequency. The turnover is high and those holding office have, in addition to their official work, quite a lot of work to do in order to retain their seats. A great many of them, if not all, have to earn their living.
I join with other noble Lords in beseeching the Government to reconsider this provision because it is quite incompatible with the provision for training the lay magistracy as envisaged in the Bill. How on earth can the elected represensatives possibly find time to attend all this training? Accordingly, if this clause is agreed we shall be very little better off than we are now. I feel that the provision has been inserted solely as a sop to the amour propre of the local authorities, 1430 and it panders to the pressures of local politicians.
My Lords, let me give the House one more example from Edinburgh. Two solicitors in a burgh court trial lasting some six hours raised a number of legal points, but the magistrate did not ask one single question. At the end he gave no opinion but found the accused guilty. The accused appealed to the High Court and the conviction was quashed. Town councillors in Scotland depend for their very existence on the Press and on the electorate. Surely this should disqualify them from holding judicial office? My noble friend Lord Selkirk made this point and I strongly support him in it. Another point which has a bearing on this issue came up recently in Edinburgh, where the bus drivers had been very discontented over hooliganism on buses. They sent a deputation, which was received by the magistrates, asking that the magistrates should impose heavier sentences. Can you imagine any other form of justiciary which would receive a deputation asking it to award heavier sentences?
When the Advisory Committee started deliberating this whole reform we leant over backwards in favour of continuing the lay magistracy, but as evidence accumulated it became more and more clear to us that efficient administration of justice demanded the complete incorporation of district courts with the whole legal system of Scotland, based primarily on full-time professional judges, not necessarily completely excluding the lay magistracy. Again, I fully support my noble friend Lord Selkirk on this issue. Thus not only would justice be done, but the administration of justice would be more efficient since there could be interchange of cases between the sheriff and the district according to the relative pressure of cases.
This was the second plan put forward by the late Conservative Government after discussions in Scotland on the White Paper. With a few minor differences, the present Government revert to the plan which the Conservatives discarded. I have a strong suspicion that the doctrine behind this Bill to-day is that lay justices are ordinary working-class people and therefore more democratic. Indeed, I took note that the noble Lord, Lord Hughes, said that a magistrate was more 1431 democratic. The system of professional judges, they say, is a surrender to the interests of the legal profession. I am no lawyer, but I cannot for the life of me see that it is such a surrender.
I am of the opinion that the Government are here missing a great opportunity. At a time of technological revolution, with new situations arising from developments in industry, and especially in Scotland in oil, the matter of law at this lower level of justice must be closely looked into. Also, this is a time when there is an increasing volume of legislation, some of which is enforceable but much of which is very difficult to enforce; and surely this is the time to go ahead with a real reform to weed out of the existing system the bad old habits, however picturesque they may be. There is much else I could say against the Bill, but I will reserve any future remarks for the Committee stage.
§ 4.8 p.m.
§ LORD STRATHCLYDE
My Lords, I intervene for only a short time. First, I must say to your Lordships' House how much I appreciated the speech made by the noble Lord, Lord Wallace of Campsie, and how much I hope we will hear from him in the future. Indeed, I echo every word spoken by the noble Earl, Lord Selkirk, in this connection. The only point I want to make is that raised in relation to lay magistrates. I have to confess that I have been a bailie of the City of Glasgow and confess also that when I sat on the bench for the first two or three times I felt very naked indeed. One can make up one's mind as to whether or not a person is guilty, but when any point of law arises one is completely in the wilderness; I was at any rate. Of course, one is helped in dealing with these difficult circumstances by the assessor sitting by one's side. But I have never been able to understand the advantage of having lay magistrates in the courts. I cannot understand it at all.
When I was a bailie we had great talk about the appointment of stipendiary magistrates in the City of Glasgow. There was only one then and I believe there is only one to-day. But I would stress that it was a move in the right direction to have stipendiary magistrates and to be rid of lay magistrates altogether. I do 1432 not know whether they serve any useful purpose. There is this to say about it: I do not know how they were appointed, but it seemed to me that after one had served for two or three years on a particular council he came up for appointment as a bailie. Many people like being a bailie for the title. "Once a bailie, always a bailie", they say. One is always addressed throughout one's lifetime as Bailie so-and-so, or Bailie-this and Bailie that. Honestly, I cannot see what good purpose they serve by meting out justice in the courts. However, I say strongly to the noble Lord in charge of the Bill that I hope he will think again about this matter in light of all that has been said this afternoon in that connection.
§ 4.10 p.m.
§ LORD HUGHES
My Lords, the first and pleasant task I have in replying to the debate is to join in the congratulations which have been extended to my noble friend Lord Wallace of Campsie on his admirable maiden speech. He was wise in the subject which he chose, because it is not given to many of us to be able to make our maiden speech on a subject of which we can claim to have close and expert experience. It has been his good fortune to choose a subject in that way, and it has been our good fortune that we have had the opportunity to listen to him. He will accept from me, too, that there is an additional reason for my being sincerely grateful for his speech because, having listened to the serried ranks opposite, he must appreciate how great an advantage it is for me to have such an addition of strength on this side of the House. In fact, if I were to include my noble friend in the percentage of participating Scottish Labour Peers it might send him away in a state in which he would be unable to wear his hat; but I can assure him that I look forward to the support which I shall receive from him on this Bill and in all other Scottish business which may come before the House. Judging by the reception which certain parts of the Bill have received from your Lordships generally, it looks as if I am going to need all the help that my noble friend can give me.
Many of the points which have been raised are obviously completely valid points for consideration by this House when the Bill goes into Committee, but it would be appropriate for me to say 1433 something about them. I was sorry that in his late intervention the noble Lord, Lord Strathclyde—if I may follow almost the invitation which he extended me, I might address him as Bailie Lord Strathclyde—should have joined Lord Balerno in these sweeping condemnations of bailies. I was a bailie for two years. Incidentally, the noble Lord, Lord Mackie of Benshie, never appeared before me. Whatever misdemeanours he perpetrated, he did not perpetrate them in the Burgh of Dundee; and I thought he was possibly the only one of those who spoke against the lay magistrates, or the bailies as lay magistrates, who had legitimate personal reason for doing so. Obviously, as he said, he has suffered at the hands of a bailie, but I would invite him, when we come to the Committee stage, to put this perhaps legitimate piece of prejudice behind him.
I cannot say that I was happy about what the noble Lord, Lord Balerno, said, and what I must say, after some 27 years as a member of a local authority (for two of which I was bailie, for six of which I was Lord Provost, although as Lord Provost I exercised my discretion not to sit on the bench; it meant that the others sat one week in eight instead of one week in nine) is that my experience, both in my own burgh and in all the authorities that I know, would lead me to rebut what the noble Lord, Lord Balerno, has said. I do not think he has done a service either to local government or to lay justice generally in picking out these juicy bits from the Scotsman, most of which—the Glasgow people, at least, will be glad to see—appear to be concentrated in the City of Edinburgh. The Glasgow folk, of course, will say that this is just natural: I mean, "What else could you expect from Edinburgh people, whether legally qualified or otherwise?"
I also regretted the suggestion that the nomination of a third of councils would introduce political aspects into the appointment of magistrates. That I do not think is the case. If it were, then, of course, that might be the explanation for some of the difficulties which have arisen in past years in Edinburgh, because until recently the great majority of Edinburgh magistrates were Tories, and that might provide the sole explanation of these extraordinary events which have apparently taken place there. But the 1434 magistrates' bench generally has not been subject to the same rule of taking Office as have political groups; and remember that the political group system of controlling councils applies largely in the cities only, and in the larger burghs. It is only on a very limited scale that it applies elsewhere.
I agree with my noble friend Lord Wallace that, by and large, the system of bailies has commended itself to the people of Scotland. In all the elections that have taken place—and I first entered local government in 1933—I never remember having heard anywhere in Scotland anybody raising as an election issue that the system of police courts should be done away with and we should no longer have magistrates. The next piece of business that I have to deal with is the reorganisation of sheriff courts, so I shall refrain from the temptation which assails me to relate in reply the kind of criticisms which have been made of sheriffs in the past; and the fact that a man may be a legally qualified judge does not mean that he will necessarily arrive at decisions which will be totally free from criticism, either Press or otherwise. While I enjoy the joke about the magistrate who said, "You must be guilty or the police would not have brought you here", I would remind your Lordships that some considerable time ago there was a very distinguished judge (perhaps I should have said a notorious judge) who informed someone, where there was some doubt about the man's guilt, that he would benane the waur o' a hanging anyway".In the case of a revolutionary, or someone who was supposed to be a revolutionary, the judge was reminded that, in his day, Jesus Christ had been a radical, and he said,Aye, an ye ken what happen'd to him.
§ LORD BALERNO
My Lords, if the noble Lord will allow me to interrupt him, perhaps I may say that that notorious case—I am a little hesitant in the presence of two distinguished lawyers—is the famous quotation from Lord Braxfield. Lord Braxfield flourished, I think, about 2G0 years ago, and the circumstances of justice are considerably different to-day.
§ LORD HUGHES
Yes, my Lords, and it may be that even in the last two years the standard of magistrates in Edinburgh 1435 has risen. Things do change as time goes by.
§ LORD BALERNO
My Lords, if the noble Lord will excuse me once more, the cases I cited from the Scotsman all related to the previous year at the outside, during which time there was a Labour Administration in the corporation.
§ LORD HUGHES
Yes, my Lords, but not in majority control of the council, and therefore not having control of the appointments to the bench. I think it is a mistake if we should appear to be entering an argument on the political side, because I started off by saying that I regretted this as I did not think it was an element in the appointment of lay magistrates. However, if the noble Lord wishes to pursue it, perhaps the Scotsman's files will provide him with a great deal more material. Unfortunately, neither the Scotsman nor any other newspaper finds it necessary to comment when magistrates do things properly; and the fact that, by and large, there is an absence of reference to what bailies do is perhaps the best indication of the way in which they carry out their job.
To come to some of the points which have been raised and which might well be the basis upon which noble Lords might be wishing to consider their procedure at the next stage of this Bill, I should refer, first of all, to what the noble Lord, Lord Mowbray and Stourton, said. He referred to the new district courts being the licensing courts. This was a slip on his part, because the licensing courts are provided for in the Licensing (Scotland) Act 1959 as amended by the Local Government (Scotland) Act 1973. The membership will be made up of justices of the peace and district councillors. The noble Lord and others spoke about the training, with particular reference to ex-bailie justices. It is intended to require the ex-bailies to accept such training as may be appropriate to their experience, and they will, of course, all need to have the system of legal aid explained to them because for all of them, either bailies or justices, this will be a completely new experience.
In this connection the noble Lord, Lord Mackie of Benshie, asked whether training will be compulsory. The answer 1436 is, Yes, it will be compulsory for those who wish to sit in court. This is not the only function of a justice, but those who are not willing to accept training will not be put on the court rota and in extreme cases they may be disqualified by the Secretary of State from sitting under Clause 15(2)(d). This, I understand, is similar to the procedure which exists in England and to which reference was made.
§ LORD MOWBRAY AND STOURTON
My Lords, will the noble Lord allow me to ask this question. Does that mean that come next May it will be possible to have three magistrates sitting without any legal training?
§ LORD HUGHES
No, my Lords, and this bears on the point which was put by the noble Earl, Lord Selkirk, earlier. The greater part of the Bill comes into operation immediately it gets the Royal Assent, so certain of these provisions will in fact be operative before May 16. Therefore we shall not be in a position that by one section of the Bill we are letting people operate as justices, and by another section saying that they are not qualified to act. I think the noble Lord may take my assurance on that.
As regards the figures, I thought that the noble Earl. Lord Selkirk, put his finger on a defect when he referred to the absence of a reference to the £130,000 in the Financial Memorandum. The explanation is quite simple, though perhaps not obvious. It is that legal aid will be brought into effect by an Order made under the Legal Aid (Scotland) Act 1967, and since the Order will be made under that Act it is not appropriate to include the cost in the financial effects of the Bill, because technically it is a financial effect of something which is already an Act of Parliament and not a consequence of this Bill. That is why it is not in the Memorandum. The noble Earl shakes his head. I could quite easily do the same, because I am not versed in the mysteries of these legal matters; but I can assure him that this is the legal explanation of why this point is not included in the Bill.
The noble Earl, among other things, raised the question of the proportion of the council who might be nominated as justices, and thought that one-third was probably higher than was the case at the present time with bailies. I think this 1437 is a valid point. I would not be certain that in many of the smaller councils the proportion might not in fact be of that figure. Certainly in the bigger bodies, one-third would be more. In my own authority it was a quarter: if one counted the Lord Provost, it was nine out of a council of 36 who were magistrates. I would suspect that in Edinburgh and Glasgow the proportion might be even smaller. For that reason, the Bill does not lay down that it will be one-third, but states, "up to one-third". I would not say we are necessarily held to a third. We follow the principle which has been accepted for so long by the people of Scotland that a certain number of elected representatives should be judges or magistrates, and it would probably be a matter for the House in Committee to decide whether it should be up to one-third or fixed at some other figure.
THE EARL OF SELKIRK
My Lords, may I ask the noble Lord one question which he may wish to answer later? If there are three magistrates sitting, is the decision by majority or must it be unanimous?
§ LORD HUGHES
My Lords, I am sure that some of those who sit on English benches will be much better able to answer that off the cuff than I am, because it has been common practice down here to have more than one. magistrate sitting on the bench. Our experience in the bailie courts, of course, has been of a single magistrate.
§ LORD BALERNO
My Lords, would the noble Lord allow me to intervene again? My experience of justice of the peace courts (where you have numbers of up to a dozen or so sitting, but frequently with five or seven) has been that if there were cases of dispute we ended by getting a majority decision.
§ LORD HUGHES
My Lords, I have now had the opportunity of receiving advice from my noble friend Lord Jacques, and it is a majority decision which is received on this side of the Border. I am fairly certain that majority decisions will be accepted because one of the points which has been raised and which may' emerge in Committee, is whether or not it is desirable to have a bench of two magistrates, and there is a 1438 very obvious objection to having two magistrates. What happens if they do not agree? Obviously we are not going to make provision for one to have a casting vote as to what is to happen to a man, either as to a finding of guilt or in determination of punishment; so quite clearly on both sides of the Border the answer is that there will be a majority decision.
§ LORD MACKIE OF BENSHIE
My Lords, I wonder whether the noble Lord will allow me to make one point? I gather from what he said that in Committee the proportion of magistrates appointed from councillors might be negotiable, but the noble Lord sticks firmly by the principle of local authorities appointing magistrates—due, I gather, to some fine conservative reasoning that, "because it has always been done, it should be done now."
§ LORD HUGHES
No, my Lords, on these matters I have very liberal views and I certainly stick to the principle, not because it has always been done but because I have never felt it necessary to change something for the sake of change. I like to make a change when it is proved desirable to do so, and in this case I am convinced that it is desirable that certain things should be carried on. I did not say the proportion was negotiable. I would say it is arguable. It depends entirely on what takes place during the next stage as to whether or not I would feel able to advise the House on changes one might want to carry out.
In that sense, I may have to rely on what I think the noble Earl, Lord Selkirk, intended as a compliment when he referred to my "bulldozing things through the Committee". Considering the number of times between 1964 and 1970 when I sat on these Benches as the only Scot taking part in debates on legislation, I think he attributes to me a power which I certainly never felt any time I came into the Chamber! I would rather think it was a reflection of what one of my colleagues on this side said to me: "How do you manage on the Scottish Bills to get such an effective Coalition working on behalf of the Government?" I hope in this case matters will not develop in that way, but obviously noble Lords will act as they feel inclined, both as regards the 1439 principle and the proportions, and the House will decide.
The noble Earl asked who would be in charge of the courts. I think this is a fair point. The justices' committees, appointed under Clause 16 will be responsible for the day-to-day running of the courts. The district and island authorities will be responsible for expenditure and for providing facilities such as buildings. The Lord Advocate will have overall responsibility for prosecutions. Thus there will be a partnership which will be invaluable in the new courts, with each having their own quite distinct responsibilities.
I believe I have already dealt with the question concerning the legal qualifications of clerks. I thought this was a point which, again, might emerge in Committee as to whether or not it is desirable to go further, having just the assurance of the local and district authorities that this is what they will do and whether or not something of the kind should in fact be inserted in the Bill.
The noble Lord, Lord Mackie, asked whether there would not be too many of these ex officio justices in the new system. I think perhaps it is a fear on the Benches opposite that this will be so that has led to a rather distorted view of the desirability of having these magistrates. It must be kept in perspective. Even if the maximum use were made of the provisions, these ex officio justices would number only between 350 and 400, compared to 5,000 justices appointed in the normal course of events. Therefore, they will not distort the pattern of justices even if the maximum use is made of the provision.
The noble Lord, Lord Balerno, asked whether it would be a matter of months only before the Lord Advocate had sufficient procurators fiscal and deputes to undertake the work. It is anticipated that qualified lawyers will come forward quickly in sufficient numbers to fill all the vacancies. They will, however, require to have the attributes necessary for good prosecutors, so the noble Lord will forgive me if I do not say whether this will operate in two, three or four months. However, we anticipate that the present arrangement of local prosecutors will be a very temporary matter indeed.
1440 My Lords, I cannot say, as I have sometimes been able to do in the past in introducing Scottish legislation, that I am grateful for the very general welcome which has been given to the majority of the proposals. What I hope is that, when we have finished with the Bill in your Lordships' House, we shall be able to send it to another place without my right honourable friend the Secretary of State saying to me, "You have made a devil of a mess of it in your Lordships' House."
§ LORD STRATHCLYDE
My Lords, may I be permitted to intervene again in this brief debate to try to remove an impression which, seemingly, I have conveyed to the noble Lord, Lord Hughes. He spoke of my having sided with the noble Lord, Lord Balerno, in a sweeping condemnation of the lay magistrates. I did nothing of the kind. If my words conveyed that impression, I apologise for my unfortunate inability to make clear what I mean when I rise to my feet. I in no way condemned them: what I said was that I had found myself naked when I sat on the bench and also that I did not understand why we preferred the lay magistrate to the professional magistrate in these days. I entered the Corporation of Glasgow in 1933, when the noble Lord, Lord Hughes, entered the Corporation of Dundee, so we are both of fairly ancient vintage, though none the worse for that. I want to say that I hope that the noble Lord will accept that I did not make a sweeping condemnation of lay magistrates; on the contrary, they have served a very good purpose for many years, but I do not understand why they should continue and I should be glad to be informed.
My Lords, there is one other thing I must say. I do not want to exacerbate the good old quarrel which is supposed to exist between the City of Glasgow and the City of Edinburgh, but I want to make it absolutely and abundantly clear that there was no political jiggery-pokery in the creation of lay magistrates when I was a member of the Corporation of the City of Glasgow. The whole thing went by rota and no political element entered into it at all. I hope that the noble Lord and the whole House will accept that from me.
§ LORD HUGHES
My Lords, I do not think that it was anything that the noble 1441 Lord said that had been misunderstood because I had no intention of associating him with what was said by the noble Lord, Lord Balerno, in his sweeping condemnation of bailies. It was because, as an ex-bailie, he was joining in the doubting of lay magistrates. If, however, I gave the noble Lord that impression, I am glad that I did so because it gave the opportunity of making it perfectly clear that, although the noble Lord, Lord Balerno, might have had support in his criticism of the system of lay magistrates, he did not, at least, have the strong support of the noble Lord, Lord Strath-clyde, in this sweeping condemnation of bailies as a group—in Edinburgh, or otherwise.
§ LORD ROYLE
My Lords, I wonder whether a Sassenach could utter one sentence to suggest to my noble friend that he might take this Bill back and bring forward another one based exactly on the English method? Then all the things which have been said about the Bill on the other side of the House this afternoon would be completely wiped out and the criticism would be nullified.
§ LORD HUGHES
My Lords, one of the things which is agitating the people of Scotland at the present time is the extent of the powers which should be given to an Assembly which in due course will be set up. If I were to accede in the slightest degree to anything which suggested that, even by chance, the English could do things better than we do them in Scotland, that would be a ghastly error at this time.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.