Leconfield (Lord) v Thornely
| Jurisdiction | England & Wales |
| Judge | Lord Atkinson,Lord Sumner,Lord Wrenbury,Lord Buckmaster |
| Judgment Date | 23 October 1925 |
| Judgment citation (vLex) | [1925] UKHL J1023-2 |
| Court | House of Lords |
| Date | 23 October 1925 |
[1925] UKHL J1023-2
House of Lords
Lord Buckmaster.
Lord Atkinson.
Lord Sumner.
Lord Wrenbury.
Lord Darling.
After hearing Counsel, as well on Friday the 10th, as Monday the 13th, days of July last, upon the Petition and Appeal of the Right Honourable Charles Henry Baron Leconfield and Colonel William Kenyon Mitford (on behalf of themselves and all other Members of the Standing Joint Committee of the administrative County of West Sussex), praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 20th of November 1924, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Samuel Thornely, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 20th day of November 1924, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The standing joint committee of the administrative county of West Sussex passed, on the 14th November 1913, a resolution to the effect that Mr. Samuel Thornely, the respondent in this Appeal, be and thereby was appointed clerk of the peace and of the county council of West Sussex at a salary of £2,000 per annum, £1,000 of which was for his own personal emolument, and the remainder for his staff to include all business which by reason of his office he might be called upon to perform, and to include amongst other things the duties of clerk to the standing joint committee, and of the other committees of quarter sessions or county council except committees the clerks of which were otherwise provided for.
One of the terms upon which this appointment was made was that six months notice should be given on either side to determine it. On the 29th of April 1924 the same joint committee passed a resolution expressing their opinion that the respondent could no longer continue to act as clerk of the county council and that he should be invited to resign this office and also that of clerk of the peace within fourteen days, and failing so to do, that notice should be given to determine his appointment. The respondent claimed that his office was a freehold office and declined to resign, he also protested that the committee had no jurisdiction to determine it. On the 23rd May 1924 the same standing joint committee passed a resolution, referring to the previous resolution of the 29th April 1924, and purporting to determine the respondent's office of clerk of the peace and of the county council of the administrative county of West Sussex from the 29th December 1924. On the 29th May 1924 the respondent instituted the action out of which this Appeal has arisen, against the appellants claiming a declaration to the effect that the office he held was a freehold office, and that the resolution and notice above referred to, purporting to determine it, were ineffective for that purpose.
The question for decision turns mainly no doubt upon the construction of sections 83 and 118 of the Local Government Act of 1888, but in order to solve that question it is essential to keep in mind what was the true nature of the office of clerk of the peace, and what is its legislative history. The office of clerk of the peace is a very ancient one. The mode of appointment to it, the conduct of the holder of it while in it, the discharge of the duties belonging to it, and the method by which the holder can be removed from it have, for many centuries, been treated as matters of such public interest that they have been dealt with by legislative enactments.
The appellants do not dispute that under this body of legislation, and up to the passing of the ( Local Government Act of 1888 51 & 52 Viet. c. 41) the office of clerk of the peace was held to be and was, an office for life terminable against the will of the holder only on the ground of misbehaviour. But they contend that this latter statute has so altered the nature of the office and the rights belonging to it that the standing joint committee had jurisdiction and power to dismiss him from his office, remove him from it, as the operation was formerly styled, no matter how well conducted and efficient he might be, simply on giving him six months' notice. In order to determine whether the provisions of the Act of 1888 are clear, direct and explicit enough to effect this revolution, one must refer to the early legislation to appreciate what was his position before the latter date.
The provisions of 37 Hen. VIII. chap. 1 and of 1 Will. & Mary, chap. 21 dealing with the office, have been quoted already by my noble and learned friends who have preceded me. It is unnecessary to repeat them.
The complaint to the justices under the statute of Will. & Mary was in the nature of an information ( Rex v. Bains, 2 Salter 880), the order for removal was in the nature of an order as distinguished from a conviction ( R. v. Lloyd, 2 Strange, p. 996), and was required to be made a record of the Court which pronounced it. ( Regina v. Bussell, 10 B. & S. 91.) These two statutes I have just referred to left untouched, however, the case of a clerk of the peace, who, though guilty of misconduct, which showed he was unfit to hold the office, was not guilty of misconduct in the execution of the office. To deal with this defect, the ( Clerk of the Peace Removal Act 27 & 28 Viet, c. 65) was passed.
It provided that if it appeared to two justices of the peace of a county that the clerk of the peace of the county had after the passing of the Act been guilty of such misconduct otherwise than in the execution of his office, as in the opinion of these justices rendered him an unfit or improper person to hold the office of clerk of the peace they might exhibit against him in the court of quarter sessions of the court a complaint in writing stating the misconduct of which lie had been guilty—a copy of which has to be sent to the custos rotulorum, and the court if satisfied upon due examination in open court that the clerk complained of has been guilty of the misconduct attributed to him, and that the same renders him an unfit or improper person to hold his office might suspend or remove him from his office, and a new clerk of the peace should be appointed in manner provided by the said Act ( i.e., the I Will. & Mary, c. 21) in cases where the clerk of the peace has misdemeaned himself in the execution of his office.
By section 3 a right of appeal to the Lord Chancellor is given to the clerk of the peace so removed.
There could scarcely be anything more unlike, in spirit and method, the arbitrary proceedings by which the appellants sought in this case to dismiss their clerk of the peace without alleging any cause than the formal, just, and considerate legal proceeding prescribed to the statutes of 1688 and 1893 for a like purpose. The latter statute is expressly repealed by the Statute Law Revision Act, No. 2, 1893 (56 & 57 Viet. c. 54, section 1 and schedule) except as to any clerk of the peace appointed before 1888. The Legislature have not relied apparently on the Local Government Act of 1888 impliedly repealing the Act of 1864. They have expressly repealed it in the interest of the clerk of the peace who may be guilty of misconduct which may unfit him for his office but is committed otherwise than in the execution of that office.
It is difficult to see upon what ground the Act of 1688 is left unrepealed, unless it be that section 83 of the Act of 1888 impliedly repeals it. It is clear that the standing joint committee cannot adopt precisely the procedure prescribed by the Act of 1 William and Mary if they aim at dismissing a clerk of the peace. For by the section 78 (2) of the Act of 1888 the members of this committee are deprived of the power to exercise the powers of a Court of Record, or to administer an oath, or to exercise any jurisdiction under the Summary Jurisdiction Act, or to perform any judicial business or otherwise act as a justice of the peace, but that fact by no means establishes that the committee can dismiss this officer from his office arbitrarily without adequate cause established.
Section 30 of the Act of 1888 provides for the appointment of the joint committee of quarter sessions and the county council, consisting of an equal number of justices, appointed by quarter sessions, and of members of the council appointed by the council, or as may be arranged between the two bodies. And any matters arising under the Act with respect to the police or to the clerk of the peace or clerks of justices, or to officers who serve both the quarter sessions or justices and the other matter enumerated, and generally any other matter requiring to be determined jointly by the quarter sessions and county council is to be referred to and determined by the joint committee under this section.
By the 81st section the county council or councils or commissioners or any court or courts of commissioners of quarter sessions are empowered from time to time to join in appointing a joint committee out of their...
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