CAB129-53 — Page 199

Printed for the Cabinet. July 1952

Page 199

SECRET

C. (52) 231

CABINET OFFICE RECORD COPY

Copy No.77

8th July, 1952

CABINET

COMPENSATION FOR LOSS OF OFFICE BY PART-TIME CLERKS TO JUSTICES

JOINT MEMORANDUM BY THE LORD CHANCELLOR AND THE HOME SECRETARY

Section 42 of the Justices of the Peace Act, 1949, requires the Secretary of State to make regulations providing for the compensation of persons who suffer loss of office or diminution of emoluments as a result of the Act. The question on which the decision of the Cabinet is sought is whether these regulations should provide for compensation for part-time clerks to justices.

2. There are at present about 700 clerks to justices in England and Wales, of whom about 600 are part-time. Under the Justices of the Peace Act, 1949, magistrates' courts committees have now been set up, broadly speaking, in each county and county borough, and they are reviewing in advance the action which will need to be taken with regard to the staffing of the magistrates' courts on 1st April, 1953, when the Act comes fully into force. One of the main purposes of the Act, following the recommendation of the Departmental Committee on Justices' Clerks which was presided over by Lord Roche, is that there should be an increase in the number of whole-time clerks; this would be achieved by the magistrates' courts committees appointing one person to serve as a whole-time clerk for two or more petty sessional divisions, or amalgamating two or more petty sessional divisions into a single division with one full-time clerk. The magistrates' courts committees will not, however, be able to come to any conclusions until they know whether compensation is to be provided for part-time clerks who are displaced as a result of such reorganisation.

3. The question was raised whether section 42 of the Justices of the Peace Act, 1949, is mandatory on the Secretary of State, and leaves him with no alternative but to make regulations providing for compensation for all displaced officers, including part-time officers. The Attorney-General and Solicitor-General have advised that, although under the section the Secretary of State may provide for compensation for part-time officers, he is not compelled to do so. The Lord Chancellor is by no means confident that this view would prevail if put to the test in legal proceedings, but nevertheless thinks that from the point of view of policy it is desirable to act on the view of the law taken by the Attorney-General and Solicitor-General, since otherwise it would become arguable that new regulations to a like effect would then have to be made under other post-war Acts which contain somewhat similar provisions.

4. The Minister of Health and the Minister of Local Government and Planning have drawn attention to twelve other post-war Acts which give power to make regulations providing for compensation for loss of office. Seven of these Acts have provisions specifically excluding the payment of compensation to part-time officers; five have provisions not dissimilar from those in the Justices of the Peace Act, 1949, but the regulations made under these Acts have limited compensation to full-time officers. The Ministers concerned suggest that, if compensation is

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Page 200 now made payable to part-time clerks to justices, there may be pressure to amer the regulations under these five Acts so as to cover part-time officers, and possibly also to introduce legislation to amend the seven other Acts so as to enable part-time officers to be compensated.

5. We think, however, that there are strong reasons for treating part-time clerks to justices as a special case and that the provision of compensation for them need not have repercussions elsewhere, for the following reasons:-

(a) There can be no doubt that, if there is no compensation for part-time clerks, magistrates' courts committees will not terminate the services of such clerks on any large scale, and one of the primary purposes of the Act of 1949 will be defeated. We think that this Act can be distinguished from all the other Acts (some of which have not resulted in any part- time officers at all losing their office) by the fact that the displacement of part-time officers is not an incidental by-product of a rearrangement of functions but is of itself one of the primary aims of the Act. It would not be practicable for the magistrates' courts committees to secure whole-time appointments by waiting for a vacancy to arise on the retirement of a part-time clerk, since it would not often be possible to find another part-time clerk in a neighbouring division willing to give up his private practice and become a whole-time clerk; and it would not be possible to appoint a whole-time clerk from elsewhere because the part-time clerks in other neighbouring divisions which might otherwise be combined would still be in office. The opportunity which will occur in April next of making fundamental rearrangements will therefore not recur.

(b) The Government is likely to be charged with breach of faith if no com- pensation is given to part-time justices' clerks. Lord Roche and other Members of the House of Lords have said that they thought, when the Justices of the Peace Bill was being passed, that compensation would be provided for part-time clerks and that they would not have supported the Bill if this was not to be so. The Conservative Party supported the Bill in the belief that compensation would be provided for part-time clerks and a decision now against granting such compensation would be contrasted with the views which they held in opposition. (c) Part-time justices' clerks differ from other part-time officers in that by the nature of their office they are debarred from a substantial field of private practice. A clerk is unable to handle as a private solicitor any case likely to come before his own bench, and it is also common for his partners not to take on work which might come before that court.

6. Any compensation would be payable from local funds, and would not be likely to exceed £150,000. For the reasons explained above we do not think that it is likely to lead to fresh expense elsewhere.

7. The coming into force of the remaining provisions of the Justices of the Peace Act in April next provides an opportunity for making a substantial improve- ment in the administration of justice in summary courts, which is of the first importance at a time when crime is so prevalent. If there is no provision for the compensation of part-time clerks to justices, the implementation of the Act will be considerably handicapped. We therefore ask for authority for the regulations under the Act of 1949 to include compensation for displaced part-time clerks to justices. The terms of the regulations would be settled in consultation with the Ministers concerned with the various Acts containing similar provisions.

SIMONDS.

D. M. F.

8th July, 1952.

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