§ (1) There shall be in each county and in each borough having a separate commission of the peace an advisory committee for the purpose of advising the Lord Chancellor upon the appointment of justices of the peace for such county or borough.
§ (2) The chairman of the advisory committee for a county shall be custos rotulorum of the county and the clerk thereof shall be the clerk of the peace of the county.
§ (3) The chairman of the advisory committee of a borough having a separate commission of the peace shall be such person as the Lord Chancellor may appoint and the clerk thereof shall be the clerk of the peace for the borough.
§ (4) An advisory committee shall be appointed by the Lord Chancellor who may by rules made by him give general directions as to the manner in which advisory committees shall carry out their duties.—[Sir G. Jeffreys.]
§ Brought up, and read the First time.
§ General Sir George Jeffreys (Petersfield)
I beg to move, "That the Clause be read a Second time."
These advisory committees have existed for a very long time. It is well known that they exist and that their duties are to advise the Lords Lieutenant, or alternatively the Lord Chancellor direct, upon the selection and appointment of justices of the peace. Yet, those committees are not statutory committees. Nothing is laid down, as far as I know, in any Act of Parliament about their composition, their numbers or the scope of their duties. It is high time that they were made statutory, that their composition and duties were defined and their position regularised. It is remarkable that the functions of these committees—indeed, their existence—is not dealt with in this Bill. Although the Measure deals with justices of the peace, their courts, their clerks and their functions, it deals not at all with the method and procedure of their appointment.
2016 During the Committee stage we have heard a good deal about the transfer by the Lord Chancellor of justices of the peace to the supplemental list, and also about the powers of the Lord Chancellor entirely to remove justices from the Commission. It has been stressed by the learned Attorney-General and also by the Home Secretary that it is a very invidious duty for the Lord Chancellor, while, on the other hand, it has been pointed out that, actually, the Lord Chancellor would be advised in such matters, possibly directly by these advisory committees, possibly by Lords Lieutenant, after consulting the advisory committees, but he certainly would be advised. Yet these advisory committees, which have powers of advice as to the making or unmaking of a justice of the peace, have no statutory existence at all, and are, in fact, unofficial bodies. I suggest that this is a matter which requires attention and regularisation by Act of Parliament.
The names of the members are kept very confidential, but in practice the name of the chairman, and possibly the names of some others, do become known and are to a certain extent talked and gossiped about. I believe there would be far more confidence in these committees if their names were known. The present committees are too much in the nature of Star Chambers. It is believed that in most cases the members of these committees are appointed as representing certain interests or certain parties, and it would be better if they were composed of senior magistrates representing various districts of the counties, or, in the case of county boroughs, those county boroughs.
This would no doubt mean that a big county would have a larger committee than a smaller county, but it is certain, and I speak with some experience in this matter, that under present conditions it is impossible for the committee to have first-hand information about all parts of a large county. If it is undesirable to enlarge the committees, possibly a system which has already been tried with success, to my certain knowledge, could be employed. Perhaps the system could be tried of appointing local sub-committees which possess the definite local knowledge which it is very difficult for a main committee to possess about the whole of a big county.
2017 For all these reasons, I hope the Government may see fit to accept this new Clause for incorporation in the Bill, and so regularise and make statutory the existence and duties of these committees, which are, in fact, a recognised part of our magisterial system. If the right hon. and learned Gentleman cannot accept the new Clause in its present form, cannot he accept its principle, and himself at a later stage of the Bill introduce another new Clause regularising and making statutory the advisory committees which now exist, and which, I suggest, are of very considerable importance?
§ Mr. Royle
I am very much obliged to the hon. and gallant Gentleman the Member for Petersfield (Sir G. Jeffreys) for moving this Clause in my absence. I have been in the Chamber nearly the whole of the day, and it is necessary to get a cup of coffee at some time. I am grateful to the hon. and gallant Gentleman.
My approach to this question may be rather different from that of the hon. and gallant Gentleman, and I have not been sufficiently fortunate to hear the whole of his arguments. A similar new Clause was moved in another place, I regret to say unsuccessfully. I want to support it tonight, because I regard it as a question of very great importance. The Clause seeks to make statutory what at the present time is merely custom, and yet it is a custom which carries very great power. The Committee will agree, I think, that it is necessary to have in every county and in every county borough a committee of people to advise the Lord Chancellor of suitable persons to be added to the commission of the peace. No Lord Chancellor can hope to know by any other means than through the advisory committees who are suitable people.
Within every bench of magistrates throughout the country these committees exist at the present time. The trouble is that hardly anybody knows who they are or from where they get their names, and there seems to exist around these committees an air of suspicion. There appears to be a hole-and-corner method of activity, and it is this atmosphere which this Clause seeks to remove. In my own experience the meetings of magistrates which are regularly held never have anything to do with the 2018 appointment of these advisory committees. Vacancies which occur on the advisory committees through death or retirement are never announced, and the question seems to arise who advises the Lord Chancellor about who shall go on the advisory committee to advise him as to whom it is advisable to make a magistrate. If my right hon. Friends can tell me how the appointments are made, I shall be very much indebted to them.
In reading the Debate on this Clause in another place I find that my noble Friend the Lord Chancellor suggested that in these matters he is completely Dominus. I want to suggest that if the Lord Chancellor were to do all the appointing himself, he would not only be Dominus but Deus as well. The appointment of magistrates is a very vital matter. They have to sit in judgment on their fellows, and it is a bad thing that appointments should be made in an atmosphere of secrecy and suspicion. There should be no suggestion that appointments of magistrates are made on the basis of who a man is rather than what he is. If I dare paraphrase the late Lord Chief Justice Hewart, I would say that appointments of magistrates must not only be just, but must also appear to be just. I suggest that the present situation cannot possibly attain that desire.
My noble Friend also said that the next step would be to make the Lord Chancellor accept the recommendations. How could that possibly happen by the simple method of making the committees part of the Bill? I am bound to say that it completely passes my comprehension that my noble Friend should make such a suggestion. I suggest that the committees should be put into the Bill, that they should become statutory, that they might keep minutes of their deliberations, and that, having appointed a secretary, as they must, it should be known to organisations and to publicly-minded individuals that they are at liberty to submit recommendations to the secretary appointed by the advisory committee.
I am perfectly confident that with such an arrangement very suitable names would be considered which otherwise would probably never reach either the advisory committees or the Lord Chancellor. It seems appalling to me that the machinery for creating magistrates is never once mentioned in 2019 a Bill which is called the Justices of the Peace Bill. Here is an opportunity to abolish that anomaly, and I hope my right hon. and learned Friend will be able to accept this new Clause.
§ 10.15 p.m.
§ The Attorney-General
We have made a great many concessions to all points of view in the course of our discussion of this Bill in Committee, but I am afraid I cannot hold out any hope of making a concession on this matter. This proposed new Clause would give a statutory, rigid and uniform basis to the advisory committees. I have always thought—and I think it is true of this kind of institution as well as of the other English institutions—that one of the greatest merits of our Constitution is that it is not statutory and not defined, but is elastic and vague. In the past—in fact, in the very recent past—there have been many occasions when we have had reason to be more than thankful that that was so.
§ Sir G. Jeffreys
The right hon. and learned Gentleman says perfectly justly, of course, that the Constitution is not statutory and is not rigid, but can that be said of the law on such a matter as the appointment of justices of the peace?
§ The Attorney-General
The appointment of judges in the High Court, the Court of Appeal, the House of Lords and the county court, and the appointment of magistrates, is not regulated by any statutory provisions of this kind. The matter is in the hands of His Majesty on the recommendation of the Lord Chancellor, or the Prime Minister, or whoever it may be in a particular case. There is no rigid code of law in regard to that matter. I know that there have been complaints about the functioning of advisory committees in the past, and I know that in particular cases there has sometimes been an unsatisfactory state of affairs, but my impression is that things have been getting, I was going to say gradually, but I think I should say markedly, better in recent years, and these complaints are now much less frequent and much less justified.
I suggest to the Committee that it really would be most undesirable to put a matter of this very delicate kind upon a rigid statutory basis. Under our system 2020 —and I think it is right to preserve it—my noble Friend the Lord Chancellor alone is personally responsible for the appointment of justices. Not one member of the advisory committees has a personal responsibility in the matter, and there is no way in which under our existing system the Lord Chancellor can abdicate his responsibility for appointing magistrates or can avoid answering for the appointment of a bad one.
§ The Attorney-General
I am coming to that. I know the duty is one to which my noble Friend gives very close personal attention. He must have advice, of course, when making a large number of appointments all over the country, but he ought also to have a completely unfettered discretion as to the manner in which and the persons from whom he obtains his advice. The appointment of a public committee under some rigid rules—I do not know what they would be—would certainly fetter his discretion in this matter of selecting his own advisers, and—I think this must be obvious to the Committee—it would open the door wide to all kinds of influence, canvassing, pressure, and the like. Indeed—and I say this quite seriously—the practical result of appointing a public committee who are known to be the advisers of the Lord Chancellor would bring us dangerously near to the appointment of justices by some kind of popular method of election.
I believe that would be a thoroughly retrograde and dangerous step for us to take. The moment people get on to a statutory committee of this kind they begin to claim for themselves statutory rights and the public at large consider that they have statutory powers. Before long complaints would be made, or tend to be made, by the statutory committee that, having been appointed as the committee, their advice was not being taken, and one would get all sorts of unfortunate conflicts between the Lord Chancellor, on whom at present the responsibility rests, and the committee, which as time went on would undoubtedly seek to gain the power in practice from the Lord Chancellor.
I want to say a word or two upon the specific provisions of this new Clause. Subsection (1) deals with the boroughs which ought to have advisory committees. 2021 The fact is that in the existing arrangements, with the exception of eight small boroughs of under 5,000 population, there already is a separate advisory committee for every area which has a separate commission of the peace and subsection (1) of the new Clause would not, therefore, make any significant alteration in the existing practice at all.
Subsection (2) seeks to make it mandatory for the custos rotulorum, invariably nowadays the Lord Lieutenant, and the clerk of the peace to be chairman and clerk of the committee respectively. But there are cases—not a great many but certainly some—in which one or other of them is unwilling to accept the duties of those offices or in which, for one reason or another, in the case of one or other of them it is undesirable that he should be chairman or clerk of the committee, and it would be quite wrong and quite impracticable to make any rigid rule that in every case these officers should have to hold these positions in the committee. Subsection (3) is in accordance, again, with existing practice and there is no need at all for any expressed statutory power to achieve it.
So far as the points made by the hon. and gallant Member for Petersfield (Sir G. Jeffreys) are concerned, I think almost all the objects that he had in mind can be achieved by arrangement and discussion between the Lord Chancellor and the Lord Lieutenant or the custos rotulorum. As far as the points made by my hon. Friend the Member for West Salford (Mr. Royle) are concerned, in regard to the submission of names, it is generally known nowadays who the chairman of the advisory committee is—that has constantly been said in the course of our Debates—and there is no difficulty at all in submitting names either to him or direct to the Lord Chancellor. If they are submitted to the Lord Chancellor they go back to the advisory committee. If anybody has a name which he thinks it right to bring forward, he is able to do it now, and the establishment of a statutory committee would not make it any easier. What it would make easier would be for the man who wanted to put forward a friend as a candidate for justice of the peace to start canvassing all the people he thought likely to be able 2022 to bring pressure to bear on the Lord Chancellor in the matter. That seems to be a wholly undesirable state of affairs.
§ Mr. Marlowe
I am sorry to disagree with my hon. and gallant Friend the Member for Petersfield (Sir G. Jeffreys) on this matter, but I feel it is necessary to support the right hon. and learned Gentleman on the point. I believe it is most undesirable that this rather flexible and characteristically English institution should be reduced to a rigid formula by Statute. It may be that it is not necessarily the best method of dealing with these matters, but it is one which has worked very well for quite a long time. I have not heard any case made out against it yet. If it is desired to change an institution, I am for putting the onus of proving the necessity for the change on those who advocate it. I cannot see that my hon. and gallant Friend or the hon. Member for West Salford (Mr. Royle) have established any case.
The hon. Member for West Salford said that the system gave rise to all sorts of suspicion. That might be said to be a case for the change, but I know of no reason why it should give rise to any sort of suspicion at all. If it does, then it is a rather sad reflection upon public morality and upon the standard of public life today. However, I do not agree with the hon. Gentleman. I do not think there is any reason to have any apprehension about these appointments at all. I think that this is a system which has worked well. If we start to make a change in it, we shall lead, as the Attorney-General has pointed out, to many objections, and particularly—and this is the most important of them all—to lobbying.
From time to time we have had to consider in the House questions in relation to the nationalised industries. If in the appointment of magistrates this suggested procedure was adopted, and if there was a statutory body, we should find that the Lord Chancellor—or some Minister in this Chamber on his behalf—would be liable to answer Questions on appointments. It would be most unfortunate if hon. Members could put down Questions about why a person was not appointed a justice of the peace in a particular area and started to put forward all his qualifications for the post, and so on. I think it is essential that these appointments 2023 should remain in the ambit of the Lord Chancellor's powers of appointment. This method has worked very satisfactorily for a long period of our history, and I personally see no reason for making any changes.
§ Mr. McKinlay (Dumbartonshire)
I am somewhat timorous in entering into a discussion on the appointment of magistrates. It is peculiar that in Scotland the Lord Chancellor has nothing whatever to do with appointing magistrates. The magistrates in the burghs are appointed by the local authorities, and they do not need to ask the consent of either the Lord Chancellor or any other body in electing whom they will as a magistrate.
§ Mr. McKinlay
I have been a J.P. for the best part of 16 or 17 years—possibly more. However, one thing that I could not discover was who appointed the advisory committee; nor could anybody ever tell me at any time whether the Lord Lieutenant took the advice of the advisory committee. I can recall an occasion when a person who was one of the best of men—possibly, one of the greatest Scotsmen of his generation—who ultimately became the Secretary of State for Scotland, and who was recommended for a J.P.-ship two years before he came to the House of Commons, was turned down by the Lord Lieutenant, not because he was not a fit and proper person, but because he was not a Tory.
My right hon. and learned Friend has just said that complaints are getting fewer. Of course, they are getting fewer because political pressure has changed. Do not let us make any bones about it—99 per cent. of the appointments to the benches of justices of the peace were, and are to this day, political. We had in the City of Glasgow an advisory committee who agreed with the Lord Lieutenant the names that were to go forward. Some names were eliminated. To the consternation of the advisory committee, when the appointments were announced, the five whose names had been deleted by the advisory committee were appointed. I want to ask my right hon. and learned Friend this question. Am I to assume from what he said that the Lord Chancellor accepts full responsibility? Do I take it that the Lord 2024 Chancellor has accepted responsibility in that case for restoring to the list the five names that had been deleted?
As a matter of fact, such parts of the discussions on this Bill as I have listened to, cause me to feel that no regard has been paid to the fact that there are two different legal systems. I have every sympathy with the purpose of this Bill, but I do not think it solves the problem so far as the appointments system is concerned. I have every regard for the present Lord Chancellor and I have the same high regard for the Law Officers of the Crown; but not one of them, at least during the course of this Debate, has disclosed any knowledge of the system which operates north of the Tweed. The situation which I have mentioned was further intensified, because in 1924 a new advisory committee was set up in that county when the Labour Government took office; but before that committee could meet the Government went out; the new advisory committee was dissolved, and the old gang was sent back. From then until 1930 there was not a single Labour justice of the peace in the 66 square miles left in the county.
There is nothing in this Bill which can prevent a recurrence of that kind of thing, and nothing in this Bill which can prevent a Labour majority on local authorities from stuffing a bench with Labour representatives. I do not want to see even a Labour representative on the bench if he is not a person worthy of appointment. That is the crux of the matter. I would like the Home Secretary to have another look at this.
That is the reason why we want consultation with some responsible person with executive authority in Scotland dealing with appointments north of the Tweed. That is all we ask. We do not want to interfere with the English system; but I am satisfied, even with my limited knowledge, that south of the Tweed nine-tenths of the benches appointed were appointed for political reasons. If complaints are now fewer than they were, it is because there has been a political turn-over in the outlook of the people in various areas. That is no reason why this system should go on.
§ Mr. Royle
I want to ask a question on a point on which I am not quite clear. I should like to ask the Attorney-General what will be the position in regard to 2025 magistrates who by reason of age go on to the supplemental list if they are members of an advisory committee. As the advisory committee is not statutory, will they retain their position on the nonstatutory advisory committee in spite of the fact that they have gone to the supplemental board?
§ The Attorney-General
There are no ex officio members of the advisory committee, and it would be undesirable that they should become so. Nor do members of advisory committees hold life appointments. It is for the Lord Chancellor to consider whether they should continue for a longer period than six years, which I believe is the normal period for which they act. No doubt in appointing them the Lord Chancellor will consider whether they are likely to reach the supplemental list, if they happen to be magistrates, before the expiry of those six years.
§ Mr. Ede
As one who was for more than 20 years a member of an advisory committee and is so no longer—and therefore I shall not be canvassed as a result of what I am going to say or because of that confession—I think it ought to be explained to hon. Members who have not been members of an advisory committee that those committees are appointed by the Lord Chancellor. I received an invitation from a Lord Chancellor who was not of my political complexion to go on to the advisory committee for the county in which I then resided and still reside. I can assure the House that the utmost care is taken by that advisory committee to get into touch with all those interests in the county whom it is desirable to approach with regard to the presenting of suitable names.
There is, however, one thing that one has to be careful about. It is that this does not mean a system of co-option by the existing benches of people whom they think are suitable. There is a danger, and I was sorry to hear the suggestion from the hon. and gallant Member for Petersfield (Sir G. Jeffreys) that the advisory committee should be composed of the senior magistrates of the county. Some of the senior magistrates should be there. I recollect the chairman of a bench complaining to the advisory committee on which I served that a perfectly suitable man whom we were proposing to appoint was unsuitable for the bench because, as 2026 he said, "I have inquired of the police about him, and they know nothing." The obvious retort was: "If the police had known a great deal about him, he would have been most unsuitable."
With regard to politics, one has to make it clear that political allegiance is no qualification. It is no disqualification either. One does want on the bench people who can make up their minds, and sometimes people who cannot make up their minds about politics may take a long time about making up their minds on issues which come before the bench. What one has to look for is people of a certain temperament, and to get them from as wide a range of social classes and occupations as possible so that all members of the community shall feel that the bench has all the knowledge that it ought to have about the way people live when it is deciding those human problems which are, in the main, the business of magistrates' courts. Legal qualifications are sometimes advisable, but some of the worst members of the bench can be solicitors who have had no practice in criminal law, but who spend a deal of time airing knowledge, which they have not acquired in practice, in the magistrates' room when simple issues have been brought before the court.
The appointment of a magistrate is essentially a human one, and I think that to advertise the names of those people whose duty it is to advise the Lord-Lieutenant would place them in an invidious and impossible position. I do not think many would stand for the job for very long if that were the case. One has to be careful, while listening to the existing magistracy, to see that from time to time fresh ideas and new people break into the charmed circle. When the Lord Lieutenant of the county first spoke to me after I had been appointed to the advisory committee, he said, "Mr. Ede, you will find in the month of September that in the county of Surrey the population is divided into two groups. One, a very small group, is composed of the existing magistrates, who are determined that no one else shall be appointed. The other, a large group, consists of the rest of the county, who are convinced that one person at least is required to make the Surrey magistracy the most perfect in the world." The advisory committee has very responsible duties to discharge which 2027 can best be discharged if it is not hampered by fixed rules but is able to apply proper human tests to the material that might be recruited to the bench.
§ Mr. Manningham-Buller
It appears that this new Clause will be withdrawn, but I should like to say one word before that is done. I am in agreement with what the right hon. Gentleman has said about the undesirability of publishing the names of the advisory committee. If that took place, it would make the conduct of their work quite impossible; but I feel that some counties do not quite follow the high standards which are always pursued, we are told, in Surrey. Unfortunately, the position sometimes is that when inquiries are made after a person is recommended and there is a question of political colour, the reply is that there is no idea of his political colour. In the country areas it is important to pay attention to the time the person has been living there in the area. If this new Clause is carried to a Division. I shall certainly vote against it.
§ Mr. Rankin
I should like to put a question to my right hon. Friend. He made it clear that in England the advisory committee is appointed by the Lord Chancellor; that was the point which I think he made. There is no one here to answer for Scotland, but will the Home Secretary tell us whether it is the case that the Lord Chancellor appoints the advisory committees functioning in Scotland? Does his answer cover Scotland as well as England? If not, will he say who appoints the advisory committees in Scotland? If he cannot say that now, will he give a promise that he will make it clear at a later stage?
§ Sir G. Jeffreys
It falls to me, with the hon. Member for West Salford (Mr. Royle), to ask for permission to withdraw this new Clause, but before doing so, I should like to say that I thought the Home Secretary was arguing a little from the general to the particular. There are not many chairmen of magistrates like the one he quoted; Surrey is a semi-suburban county, with great respect to it, and I wonder whether what he said about it applies to every other county. He does not like the terms of this new Clause but 2028 would he, at any rate, consider a Clause to make these committees statutory, although as wide as possible? I am sorry he was not willing to do what we want and, therefore, in all the circumstances I must regretfully ask permission to withdraw the Motion.
§ Motion and Clause, by leave, withdrawn.