§ MR. J. W. BARCLAYsaid, he wished to call the attention of the House to the maladministration of justice in Scotland. His Motion, as it stood upon the Paper, was—
That it is prejudicial to the interests of justice in Scotland that Procurators Fiscal should be allowed to engage in private business and to act as land agents.Perhaps he might state, for the information of the House, and especially of the Irish Members, that the system of administering justice and conducting criminal inquiries was, in the first place, intrusted to the Procurator Fiscal. He was the Public Prosecutor. Down to 1877 these Procurators Fiscal were appointed by the Sheriffs, and removable by them; but in that year a Bill was brought in by the Tory Government confirming the appointment in the 1801 Sheriff, but making the Procurator Fiscal irremovable when he was appointed. An Amendment was attempted at the time to restrict Procurators Fiscal to the discharge of their official duties; but it was negatived. It was evident that there was great risk of abuse of justice in consequence of his being engaged in private business, particularly the business of a land agent. He had in his possession complaints that in a recent case a Procurator Fiscal appeared to prosecute, and was also engaged in the case in three other capacities. It was easy to conceive how hard it would be for a Procurator Fiscal, in such circumstances, to confine himself strictly to his proper business, and not to allow himself to be influenced by other motives. He wished to allude particularly to cases in the Western Highlands. There was the case of the Procurator Fiscal in Stornoway, which belonged to a single proprietor, and the Procurator Fiscal was the representative of the Crown, and was also the agent of the landlord. He had occasion, previously, to call attention to an instance where it was alleged that the Procurator Fiscal had called in the law to support certain estate regulations; and, under these circumstances, the tenants believed that they had not any prospect of impartial administration of justice. He was not prepared to say definitely as to the accuracy of the charges made against the Procurators Fiscal; but there were very numerous complaints as to their action, and one could understand how difficult it would be for the Procurator Fiscal to administer even-handed justice when he was acting in a private capacity for one of the parties. The position occupied by these men was altogether indefensible; and ho called attention to it, now that a new Government was in power, in order that the Government might have an opportunity of stating their views and the course they proposed to take in the matter. Ho made no charge against the late Lord Advocate. The only defence of the present system was that it would be impossible to get the whole of the service of the Procurators Fiscal in those distant places. He advocated to meet this difficulty that they should have some system of promotion under which the Procurators Fiscal could be removed from district to district. If some system of that kind were 1802 adopted, he was sure it would have a very beneficial effect on the administration of justice. He was informed that measures had been in progress under the late Government for remedying the evil so far as the Western Highlands were concerned; but the complaint he had to make against the late Lord Advocate was, that when he found he was not able, in a particular case, to do what was required, he did not ask the House of Commons to remedy the law, and so have been able to take upon himself the responsibility for the due and impartial administration of justice. Peace in the Western Highlands depended very much more upon the removal of those abuses than many supposed; but the people despaired receiving impartial justice when everyone engaged in the administration of the law, except the Sheriff, was an official of the proprietor. That being the feeling, it was not at all surprising that the Highlanders attempted to take the law into their own hands, and thus endeavour to redress their grievances.
§ DR. FARQUHARSONsaid, that his hon. Friend had done well to bring this subject before the House. It was surely wrong, as a matter of principle, that anyone holding judicial office should be allowed to engage in private practice. Persons holding these appointments should, like Caesar's wife, be above suspicion. The difficulty of getting men to take the office on small salaries might be met by a system of promotion such as had been suggested by his hon. Friend—namely, to hold out the prospect of rising, through good work and merit, to higher appointments. He, therefore, thought that as appointments fell in the Government should insist that persons accepting such appointments should be debarred from private practice. That could easily be done in the large towns, where from £000 to £800 and up to £1,200 a-year was paid. For such appointments there could be no difficulty in getting the best legal men, and already a good beginning had been made in Aberdeen, where the Sheriff Clerk, who formerly bad private practice, had been entirely restricted to his public duties.
MR. J. B. BALFOURsaid, be was not disposed to enter upon the general question, which had been a good deal discussed within the past year. The view 1803 taken by the late Government was that wherever they could get the sole services of a gentleman to discharge the duties of Procurator Fiscal on reasonable terms it was desirable to do so; but that necessarily involved conditions— conditions regarding the amount of work, the available salary, or the salary that could reasonably be asked, and other conditions which ho had more fully explained on a former occasion. He adhered to the view that wherever they could obtain the services of a gentleman to fill those duties exclusively it was desirable to do so; and accordingly, although the appointment did not rest with the Crown, but with the Sheriff, subject only to confirmation by the Secretary of State, it was quite possible for persons holding the position which he had the honour to do under the late Government, by communicating with the Sheriff, to try and establish the rule of restricting persons holding the office to the duties of that office. His hon. Friend the Member for Forfarshire (Mr. J. W. Barclay) complained that they did not propose legislation on the subject, He agreed that all appointments of Procurators Fiscal should emanate from the Crown; but in the press of other duties he did not know whether the subject had been embodied in a separate Bill, though he had no doubt that the matter would be kept in view. As to the alleged conflict between public and private duty, having had an experience of some years, he could only now repeat the tribute which ho had before paid to the probity, integrity, and ability with which the Procurators Fiscal had discharged their duties; but. at the same time, he admitted that it was better that they should be restricted to the duties of their office. Reference had been made to appointments in the West Highlands; and he quite agreed that where, from whatever causes, an unhappy state of feeling had arisen, which he trusted and believed would be temporary, it was specially desirable that there should be no ground for the suggestion of a suspicion of any conflict of duty and private matters on the part of a public official. Accordingly, before the late Government went out of Office, they were negotiating with a view to get the Procurators Fiscal of Stornoway, Portree, and Lochmaddy placed on salary and confined purely to their 1804 official duties. Of course, their appointment being under the previous law, that arrangement could only be carried out by negotiation, and with their consent; and, although the arrangement was not concluded, he dared say this was a matter which those who had succeeded the late Government would look into, and if they found that reasonable terms could be arranged with those Fiscals they would make arrangements by which these officials would be confined to their public duties. If it were found impossible to make such an arrangement it might then become necessary to consider whether legislative powers to effect such an arrangement could not be obtained, although that would be a somewhat extreme measure.
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (Sir E. ASSHETON CROSS)said, he would like to bear his testimony, as the right hon. and learned Gentleman (Mr. J. B. Balfour) had done, to the way in which the Procurators Fiscal in Scotland had hitherto performed their duties. He had had an opportunity some years ago of seeing how they performed their duties, and he thought they deserved the credit which the right hon. and learned Gentleman had given them. As to whether the Procurators Fiscal should be confined, to their public duties alone he had very little to add to what had been said by the right hon. and. learned Gentleman. It would be better, as a general rule, that those gentlemen should not have anything to do except the actual duties of their office; but there were cases in which that general rule would hardly apply, because it might be that they might have to give a much larger salary for a person in an out-of-the-way part of the world who would practically have little to do, and whose only inducement to go to such a place would be to receive the large salary for doing very little. Nor should they forget that where there was little to do, and a man devoted his whole time to doing it, it had not a very good effect on the man himself, for it was not likely to improve his mind or increase his store of legal learning or his habits of industry. His right hon. and learned Friend stated that in certain cases arrangements were attempted for confining certain Fiscals to their official duties; but, unfortunately, up to the 1805 time the right hon, and learned Gentleman left Office the attempt had not been successful. It was a matter, however, which would certainly not be lost sight of. More than that he could not say.