§ [No. 5]
§ Clause 11, page 8, line 29, at end insert—
§ "(2) Each local authority may nominate up to one quarter of their members to serve as ex officio justices for their area, and any person so nominated shall hold office as ex officio justice from the date on which the local authority intimate their nomination to the Secretary of State and shall continue as such for the period during which he remains a member of the authority and continues to retain the authority's nomination.
§ (3) Subject to subsection (4) below, any person nominated to serve as an ex officio justice shall, before acting as such a justice, take the oath of allegiance and judicial oath in accordance with the Promissory Oaths Act 1868 and the Promissory Oaths Act 1871.
§ (4) A person renominated to serve as an ex officio justice immediately after the expiry of a previous term as such shall not require 1306 to take again the oaths mentioned in sub-section (3) above.
§ (5) Each local authority shall intimate to the Secretary of State the date on which a person duly nominated under subsection (2) above ceases to be a member of the authority or on which his nomination is terminated by the authority.
§ (6) A person duly nominated under sub-section (2) above shall not be treated as having ceased to be a member of the local authority during any period when he is standing for re-election to that authority.
§ (7) A person holding office as an ex officio justice by virtue of subsection (2) above shall hold office as if appointed in accordance with section 9(2) of this Act as a justice for the commission area concerned.
§ (8) A person holding office as an ex officio justice by virtue of subsection (2) above shall, in his capacity as a justice, not be elected under section 5(3) of the Licensing (Scotland) Act 1959 to serve as a member of a licensing court or court of appeal and shall not attend or vote at any meeting of justices to elect members of any such court."
§ Lord HUGHESMy Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 5.
This Amendment appears somewhat extensive, but I think that we need only consider subsections (2) and (7) since the other subsections are consequential. Sub-section (2) provides that district and islands councils may nominate up to one quarter of their members as ex officio justices. As such it represents a compromise. When the Bill was initially introduced into this House it provided that local authorities could nominate up to one-third of their members as ex officio justices. Following a debate in Committee, and against my advice, the provision was removed by your Lordships. The matter was examined again in the other place and the Government, in the light of all the arguments advanced in both Houses, decided that the most reasonable compromise would be to restore the provisions on nomination but to set the proportion at one-quarter. I am aware that earlier this week this compromise was criticised in another place during the Report stage, on the grounds that the proportion should have been held at one-third. Equally, there were those who argued that the provision was not required at all.
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 5.
§ Moved, That this House doth agree with the Commons in the said Amendment. —(Lord Hughes.)
§ 11.50 a.m.
Lord CAMPBELL of CROYMy Lords, this is the main point on which we on this side of the House disagree with the Government, and we regret that the other place reversed what we had proposed besides also reversing decisions taken on this part of the Bill at the Committee stage in the other place. The nominating of a proportion of the members of councils to be made justices was criticised when this was discussed in your Lordships' House, not only by Scottish Peers but also by others, including my noble and learned friend Lord Hailsham of Saint Marylebone, who pointed out the dangers of persons being elected rather than appointed to be justices, and that they could appear to be influenced in the attitude which they were adopting towards particular cases by the prospects of re-election. This was not a situation which one would wish to continue. In the reorganisation of local government, which had caused this change to be made, it was hoped that the archaic system, which many consider an anachronism, whereby in Scotland some of the magistrates are simply local councillors rather than justices of the peace, could be brought to an end.
The question of lay justices has been a problem in Scotland too. If there are to be lay justices, we believe that they should be justices of the peace and not some elected councillors. In Scotland justices of the peace have carried out their other functions, but only a very small number of them have been magistrates and have sat on the bench. As noble Lords will be aware, when we were in Office we put forward proposals which retained a number of lay courts with JPs on the bench. There was then a great deal of criticism of those proposals, not only from the legal profession more or less as a whole, but also from social workers and from bodies representing the general public. They felt that stipendiary magistrates were likely to give better justice, as they put it, than the lay courts. There was also a problem of providing qualified knowledge in the courts because those proposals contained a weakness in that some courts could be operating with- 1308 out anyone in the courtroom being legally qualified. This was because of the way in which justices of the peace would have to operate, they being people who are not available to work anything like full time.
We then put forward alternative proposals for stipendiary magistrates. These were much more welcomed in Scotland as a whole. That was the stage that had been reached when the present Government came into Office a year ago. There is a difference of opinion, not on Party lines but I think in general, as to the number of lay courts there should be in Scotland. There seemed to be a greater weight of opinion in favour of stipendiary courts than greatly to increase the very small number of justice of the peace courts which exist in Scotland.
The Government are now putting forward this proposal for local authority councillors being nominated by their colleagues and then forming a proportion of the lay justices. We regret that the Government should have decided to revive that particular point which we believe has very little support outside local government circles. In the new set-up in local government in Scotland, which is to come into effect in about seven weeks' time, there will be fewer councillors. The number of councillors will be greatly reduced because of the reduction in the numbers of councils in the new system, and those councillors will have much more responsibility than councillors in local government today. They will have plenty of other things to do without having to carry on with what I will describe as this ancient but none the less archaic system of also acting as magistrates. While we accept that there is controversy about the number of lay summary courts there should be in Scotland, we think it is retrograde for the Government and the other place to have reversed what was the opinion of your Lordships' House and also the opinion of the Committee in the other place.
§ 11.56 a.m.
The Earl of SELKIRKMy Lords, it is a great pity that the Government have brought the administration of justice into controversy. I believe that this was quite unnecessary, and it would have been avoided if they had taken a little advice. The Law Society did not even see the 1309 context of the Bill until it was produced and they were not consulted by the Government at all. This is quite regrettable because it is a non-Party Bill. There is no issue of Party here and I think that omission is very sad indeed. The noble Lord, Lord Campbell of Croy, is perfectly right in saying that the great body of people in Scotland would have preferred a system different from that which has been selected by the Government. This was a system specifically devised in the Middle Ages for the townships of that time. Now it has been extended all over Scotland to places where it has never been known before. I think a better argument could have been advanced. I know it is not unpopular among the members of councils, but outside that circle very few people view it with enthusiasm.
There is, I think, one error which I did not deal with because I was a bit rushed, but it is a matter which I raised previously. Clause 10(2) deals with existing magistrates. They are made magistrates as from 16th May but their appointment is not terminated, as it would be if they were made magistrates under Clause 11(5), when they cease to be members of the authority. As I read it, they are made magistrates for life. I do not think the Government or the noble Lord, Lord Hughes, intended that. I drew attention to that matter when the Bill was previously before your Lordships' House and I had hoped that when the Bill was going through the other place an amended version would be produced. But nothing has been done. No great damage has been done, but if you happen to be a magistrate or a bailee on 15th May you are in a totally different position from any bailee at any future date. It is a small matter of illogicality which of course is not fundamental, but with a little more care and attention that matter could have been avoided.
§ 11.58 a.m.
§ The Earl of MANSFIELDMy Lords, it is with some regret, and certainly with great diffidence, that I speak on this Amendment at variance with my noble friend on the Front Bench. When this matter was last in your Lordships' House, I was still in the European Parliament and I could not on that occasion support the Government, which I would have done. It may be that some of your 1310 Lordships will find it unusual, if not unique, that I should support the Government, but I do so on this occasion.
On the wider question of lay justices, throughout my professional career, which admittedly has been as a member of the Bar in England, I appeared with great pleasure before lay Benches throughout England and Wales and saw many different types of lay justices carrying out their duties and functions from a broad political spectrum. My conclusion was that in almost every case the justice which they dispensed, aided and advised by their clerks, was of a very high order. I say this because Scotland is now embarking on a new direction so far as the administration of justice in the inferior courts is concerned, and I think the anxieties which have been voiced, especially in the other place, may eventually prove to be unfounded. I say that because in many ways lay justices, because of their knowledge of local people and local conditions, are able to dispense justice which perhaps is more sympathetic to people who appear in front of them than do stipendiaries. I say that as one who has appeared before Benches of lay justices and stipendiary justices in London and the Scottish lists. Perhaps the nearest to which England ever got—and I say this in the absence of the noble Lord, Lord Mais—is in the City of London courts, where the Aldermen used to sit alone.
I would ask two questions of the noble Lord, Lord Hughes. If a local authority, as it is entitled to, nominates people in its locality, and it is discovered by one means or another that for one reason or another they are unsuited to sit as justices, what happens then? Two examples spring to mind. First of all, a person may have a very old conviction which he may have lived down, and which in every other sense of the word, should never be held against him, but would disqualify him from dispensing justice to his fellow-citizens. That is one eventuality. It may be someone who, years before, interfered with small children.
Secondly, the authorities may know that a person who, to all outward appearances, is a level-headed and responsible citizen, occupying a post on his local council, holds extreme political views which are well below surface—I care not whether those views are to the Left, to the Right or in the centre. He, too, in England 1311 would never be appointed by the noble and learned Lord the Lord Chancellor. From perusing the Official Report of the other place, it seems to me that the only safeguard is the rota; in other words, although such a justice had been nominated by his local authority, he would never be asked to sit. That does not seem good enough. I feel that that is something which the Government must watch and must be aware of.
The other matter which I should like to raise with the noble Lord, Lord Hughes, is a simple one to satisfy my own curiosity. Is it envisaged that these justices will sit singly or as a Bench? In my experience as an advocate, a Bench of magistrates is better qualified than one person sitting as a single justice. I say that as one having the honour and privilege of sitting as an honorary sheriff in my locality. I often find difficulty, because not only am I dealing with law with which I am unfamiliar, but I am also dealing with terminology which I do not understand. I would be only too glad to have two others sitting with me, as well as an excellent clerk to give me advice. If I may presume to advise the Government, I suggest strongly that, at least in the first instance, the Lord Advocate or his Department should encourage magistrates to sit as a Bench of three or possibly five, as in England.
The Earl of SELKIRKMy Lords, is the noble Earl, Lord Mansfield, aware that we are not dealing with lay magistrates under this clause? We are dealing with elected magistrates. It is the elected magistrates to which I personally take exception.
§ The Earl of MANSFIELDMy Lords, I am aware of what the noble Earl, Lord Selkirk, says. A councillor will act as a lay magistrate and is very much lay, even though he is elected.
§ 12.5 p.m.
§ Lord HUGHESMy Lords, I had hoped that this matter might have gone through with less talk than we have had, but unfortunately we found ourselves in a position where the noble Lord, Lord Campbell of Croy, once again found it necessary to refer to the previous situation. I do not intend to embark once again on an argument between the merits of what was proposed by the previous 1312 Government and what is proposed by the present Government. I do not think any useful purpose would be served, nor do I think your Lordships would particularly welcome it this day. However, I should made one or two remarks to try to get the matter in perspective.
I would remind your Lordships that magistrates will not be eligible to sit on the Bench unless they undergo training appropriate to their experience. If they are unwilling to undergo training, or do not have time to do it, they can be transferred to the supplemental list and will not be put forward as magistrates. Again, under Clause 15, if they neglect or decline to take an appropriate part in the exercise of their judicial functions, they can be transferred to the supplemental list. Even if they are prepared to undergo training, they will not be able to sit on the Bench of the district court until their names are put on the rota by the justices' committee appointed under Clause 16. These committees will wish to maintain a high standard among justices sitting on the Bench. I must emphasise this. It will be the justices committee and not the district council who will decide which justices should sit on the Bench.
In another place, and I think earlier in this House, fears were expressed about the effect that these ex officio justices would have on the total. There will be some 4,500 normal justices, if I can use that term, and only 300 at maximum ex officio justices. At present, 90 per cent. of the lay court work is done by magistrates, and only 10 per cent. by justices. In the future, it is reasonable to suppose that these percentages will be reversed. The noble Earl, Lord Mansfield, echoed what was said by the noble Baroness, Lady Macleod of Borve, in the Second Reading debate, when she also disagreed with what her Front Bench colleages were saying by praying in aid, as the noble Earl has just done, the way in which lay justices perform satisfactorily on this side of the Border.
I believe there is no evidence to support the suggestion that the vast majority of people in Scotland support the abolition of lay justice. Equally, I would say there is no evidence to show that the great majority of people in Scotland wish to continue lay justice, for the simple reason that nobody except those directly concerned has ever expressed any views 1313 at all about the matter, so far as I know, other than incidental letters which may appear in the newspapers and which represent a very small proportion of the population.
The noble Earl asked a question about the position of unsuitable persons who might be nominated. Of course, as he said, it is correct that the first safeguard is that the justices' committee might not put them on the rota. But there is a second safeguard, in that the Secretary of State can instruct that a person can be transferred to the supplemental list. Alternatively, the Secretary of State can have him removed from the justices' rota altogether. I think the noble Earl will not find that in the Bill; this is contained in provisions already existing, and which are not in any way altered by the provisions of the District Courts (Scotland) Bill. In fact, this has been gone into earlier so that a double safeguard is in existence. I understand there need not be any undue embarrassment if the Secretary of State decides someone has to be transferred or removed from the supplemental list. The Secretary of State does not necessarily have to say why he wants it done, so an old conviction need not necessarily be brought into the open at that time. I am afraid I have forgotten the second point of the noble Earl.
§ The Earl of MANSFIELDMy Lords, the other matter about which I asked the noble Lord, Lord Hughes, was as to whether it is contemplated that justices will sit singly or as a Bench, at least initially.
§ Lord HUGHESMy Lords, this is a matter which will be entirely for the justices themselves to decide. From talks I have had with quite a number of district councils recently, because of the number of people who will be able to sit without the necessary training followed by those who have had no experience on the Bench, it appears that it will probably be very difficult at the beginning to arrange for other than a Bench of a single magistrate. It may be that as more people with the necessary training are available they would wish to take advantage of the machinery for having a Bench of more than one. I think what has been discouraged, and probably would in fact not take place, is to have a Bench with 1314 an even number of magistrates, because, of course, there is no provision for a casting vote in the event of a tie. I understand the provision is that, if the magistrates are equally divided on what happens, the person must automatically be found not guilty.
§ Lord HUGHESThis is as I understood it. Anyway, it is undesirable to have an equality of magistrates for a variety of reasons, and I think it would probably be an odd number, but in the beginning it is more likely to be a single magistrate.
§ On Question, Motion agreed to.