HC Deb 08 August 1888 vol 330 cc35-46

Bill, as amended, considered.

New Clause— (No fees exigible against accused in respect of application for bail.) No clerks' fees, court fees, or other fees or expenses shall be exigible from, or be awarded against, an accused in respect of his application for bail or of the appeal of such application to the High Court of Justiciary,"—(Mr. Caldwell,) —brought up, and read the first and second time.

Motion made, and Question proposed, "That the said Clause be added to the Bill."

MR. HUNTER (Aberdeen, N.) moved that the debate be now adjourned. He said it had been arranged that that day should be devoted to Scotch Business, and the Government now proposed to go on with Scotch Business half-an-hour before the ordinary time for terminating the debates in the House on Wednesday. No Government ought to move to suspend the Standing Orders without due Notice. Members had to make their arrangements, and those arrangements were not consistent with carrying on the Business of the House when the suspension of the Standing Orders was only moved at 12 o'clock the same day. He protested against what he ventured to call the scandal of Bills relating to Scotland—Bills which had never been debated at all—being taken at such a time. This Bail Bill had never been debated on the second reading. It contained great changes of the Law of Scotland. It revolutionized in some respects the procedure in regard to bail in Scotland. He was not going to discuss whether that was right or wrong. His sole point was that this was not a time upon which such an important measure should be discussed, and as a protest he moved the adjourn- ment of the debate. His sole objection was that this was not the time when Scotch business should be taken.

MR. ANDERSON (Elgin and Nairn)

seconded the Motion.

Motion made, and Question proposed, "That the Debate be now adjourned."—(Mr. Hunter.)

THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities)

said, that the Bill now before the House could not admit of very much debate. The hon. Member said that the Bill had never been discussed. The reason of that was because its principle was accepted by the House.

MR. HUNTER

It was smuggled through the House.

MR. J. H. A. MACDONALD

denied that it was smuggled through by him, and he had charge of it. As a matter of fact, it was read a second time without the objection of any one.

MR. HUNTER

It was taken after 12 o'clock.

MR. J. H. A. MACDONALD

thought he might safely say there was no difficulty of getting anyone to object to a Bill after 12 o'clock, and, indeed, they had had great difficulty, on the other hand, in preventing objection from being taken. In these circumstances, he did not see how it could be said the Bill was smuggled through. The Bill was a short one, and would commend itself to the general sense of the House. Its object was to get rid of some anomalies in the ancient Law of Scotland which were inapplicable to the present time—in fact, to assimilate with the Law of England on the subject. In these circumstances, he hoped the Motion for the adjournment would not be persevered in.

MR. DONALD CRAWFORD (Lanark, N.E.)

remarked, that it was impossible not to sympathize with the remark of the hon. Member for Aberdeen that Scotch Members had been very badly treated this Session, and in his opinion the mode of conducting Scotch Business in the House urgently required reform. He could hardly trust himself to use the expressions which he thought applicable to their treatment; but with regard to this Bill he thought it was an erroneous representation of the case to say that it had not been properly con- sidered, or that there was any legitimate objection to its having been read a second time without discussing it. He and others had always remained in the House when the Bill was on the Paper, for the express purpose of assisting in reading it a second time. It had been fully considered in the Grand Committee, and no measure could be more ripe for the consideration of the House. It dealt with a matter in respect of which the Law of Scotland most urgently required reform, and he thought it might easily be disposed of in a short time.

SIR GEORGE CAMPBELL (Kirkcaldy, &c.)

agreed with the hon. Member for Aberdeen as to the neglect of Scotch Business; but even although there was not a debate on the second reading, they might have a second reading debate now, and then get through the Report stage.

MR. MARJORIBANKS (Berwickshire)

said, he would appeal to his hon. Friends not to prolong this discussion. If the hon. Member for Aberdeen really wished to ascertain the feeling of Scotch Members on the question whether this Bill should be proceeded with or not, it would be better for him at once to divide the House. The Bill could not be said to have been smuggled through, and Scottish Members would do well to take it at once and so maintain the character they had for the manner in which they conducted their Business. There was no doubt that the Scotch Members had been abominably treated by the Government. Nobody felt more strongly on that point than he did; but that was no reason why they should refuse to proceed with the consideration of a useful measure. The best way was to finish the Bill and to go home to dinner. He understood that the Government did not intend to go on with the Burgh Police Bill till the Autumn Session, and that they would then carry it coûte que coûte. In these circumstances, he hoped the Motion for Adjournment would be withdrawn.

DR. CLARK (Caithness)

said, he had a very strong objection to the principle of the Bill. It was a very important measure, quite revolutionizing the Scotch Law regarding bail. It might be doing so beneficially or otherwise, but there were certain novel principles in the Bill. In the first place, it abolished statutory bail.

MR. SPEAKER

Order, order! The Question before the House is the adjournment of the debate.

DR. CLARK

said, that hon. Members who had Amendments on the Paper were not present, and the Bill ought not, therefore, to be rushed through in a single night.

MR. E. ROBERTSON (Dundee)

said, he regretted that he could not accede to the request of his right hon. Friend on the Front Bench (Mr. Marjoribanks). As one of those who had taken a most emphatic part in the protest made two or three nights ago against the manner in which Scotch Business was conducted, he felt that he would be betraying the position he then took up if he failed to support his hon. Friend in his protest to-night. Most of the Scottish Members had already left the House and gone elsewhere, and they could not get the opinion of Scotland on this or any other subject. He had received a letter from a man of considerable political position in Scotland with regard to the protest they had made, in which he said—"Thousands and thousands of Scotsmen will to-day feel grateful to you for your protest against the shameful neglect of Scottish Business." They would not be doing their duty if they allowed the Government to reap the benefit of their shameful conduct. There were important Amendments standing in the name of the hon. Member for the College Division of Glasgow (Dr. Cameron). That hon. Member was not present, and nobody else could move his Amendments. He should have hoped that on this occasion, as on Monday last, they would be supported by the united sense of the Liberal Members for Scotland at all events. He was sorry to have heard dissentient voices, and believed they would be found to be the voices of backsliders. A good many of them had not been altogether true to the demands of their constituencies on this question. There had been too many conferences with the Lord Advocate; there had been too many caucuses; and it was partly owing to the encouragement which the Lord Advocate received from a section of the Liberal Members that the right hon. and learned Gentleman and the Government submitted Scotch Business in this improper and unworthy manner. If he should be left alone with his hon. Friend the Member for Aberdeen in supporting the adjournment, he would go into the Lobby with him with perfect satisfaction.

MR. CUNNINGHAME GRAHAM (Lanark, N.W.)

said, he failed to see that there was any great demand for this measure in Scotland. He was quite ready to answer to his constituents for claiming for every Scottish affair full discussion, even if it should be, as in the present case, of minor importance. He should vote for the hon. Member for Aberdeen.

MR. BUCHANAN (Edinburgh, W.)

remarked that, notwithstanding the somewhat minatory attitude of the hon. Member for Dundee (Mr. E. Robertson), he hoped the Motion for Adjournment would not be persisted in. He thought they ought to definitely understand whether it was the intention of the Government to proceed to-night with the Burgh Police Bill.

THE FIRST LORD OF THE TREASURY (Mr. W. H. SMITH) (Strand, Westminster)

No, not to-night. I have already stated that, having regard to the circumstances of the case, and the feelings expressed by Scottish Members generally, the Government would not persevere with the Bill in the present Sitting, but would take it in the Autumn Sitting.

MR. J. B. BALFOUR (Clackmannan, &c.)

said, he would join in the appeal to his hon. Friends not to persevere in the Motion for Adjournment. He disapproved very strongly of the manner in which Scottish Business had been treated in the House; but he thought it was the part of wisdom to make the most of what they regarded as a very inadequate allowance of time; they might perfectly well get through their Bill now. He assured his hon. Friend the Member for Lanarkshire (Mr. Cunninghame Graham) that there was great need for reform, the present Law of Bail being in a most anomalous position, and this Bill was calculated to remedy its defects.

MR. ESSLEMONT (Aberdeen, E.)

hoped that the hon. Member for North Aberdeen (Mr. Hunter) would withdraw his Motion. They had nothing left now but to relegate Scottish Business to the Autumn Session. He felt greatly humiliated by the rebuke of the Member for Dundee (Mr. E. Robertson), but they could stand their own in Scotland as regarded their interest in Scotch Business, the hon. Member for Dundee notwithstanding.

MR. SHIRESS WILL (Montrose, &c.)

thought the hon. Member for North Aberdeen ought to be satisfied with the protest he had made. Scottish Members naturally protested against the way in which Scottish Business was treated in that House; but he did not see how they could add to the force of their protest by refusing to take advantage of the opportunity of passing a short Bill.

MR. A. SUTHERLAND (Sutherland)

said, the Scottish Members had constantly been obliged to take any crumbs that might be offered by the Government in the way of legislation. He had decided objections to the principle of this Bill, and the popular will of Scotland had never been expressed in favour of it. He hoped, under the circumstances, and as a protest against the way in which Scottish Business was treated, that his hon. Friend would press his Motion to a Division.

MR. CALDWELL (Glasgow, St. Rollox)

said, he would not have supported the Motion for Adjournment but for one circumstance. There was a very important Amendment down on the Paper in the name of the hon. Member for the College Division of Glasgow (Dr. Cameron), and it could not be moved in the hon. Member's absence. His hon. Friend had all along taken such an important part in the discussion of this question that he (Mr. Caldwell) was exceedingly sorry that the Bill should go on in his absence. He would be perfectly prepared to go on with the Bill now but for the unfortunate absence of his hon. Friend, who had no reason to suppose that the Bill would be taken at this period of the Session. The great majority of the Scottish Members had left town in the belief that Scottish Business would not be taken up before the adjournment. If the hon. Member for North Aberdeen went to a Division, he would vote with him, although personally he was quite prepared to go on with the Bill.

MR. C. S. PARKER (Perth)

wished to protest against the idea that the House was not to go on with legislation because a particular Member who had an Amendment on the Paper was absent, or even because a considerable number of Members were absent. The theory that they did not expect Scottish Business to be taken at this period of the Session was inconsistent with the complaint they had so often heard from hon. Members that Scottish Business was not proceeded with. They expected they would get some share of the time of the House. The hon. Member for the College Division of Glasgow had left the House; but in his absence they had passed through a very useful Bill of his, and he (Mr. C. S. Parker) thought on this occasion they might very properly go on with this Bill.

DR. TANNER (Cork Co., Mid)

said, that night after night when this Bill was brought on at an hour when, objection being taken, it could not be considered, he was always willing to withdraw the objection if he had been requested to do so by the Scotch Members. But the Scotch Members had not asked him not to object to the Bill, and he understood that the sentiment of Scotland was against its passing.

Question put.

The House divided:—Ayes 46; Noes 162: Majority 116.—(Div. List, No. 269.)

Original Question put, and agreed to.

Clause added.

Clause 2 (All crimes to be bailable except murder and treason).

MR. CALDWELL moved to insert words with the object of securing that after apprehension and before commitment an accused person should be entitled to apply for bail. That power was given under the Criminal Procedure Act of last year, and he wished that, in this new Bill dealing with the Law of Bail, it should be made perfectly clear that that power would not be interfered with.

MR. J. H. A. MACDONALD

opposed that Amendment, the object of which was provided for in an Act of last year.

Amendment proposed, in page 1, line 14, after the word "who," to insert the words "has been apprehended or who."—(Mr. Caldwell.)

Question proposed, "That those words be there inserted."

MR. J. B. BALFOUR

said, they were all agreed that it was right that the benefit given by the Act of last year of bail prior to commitment should continue, but he could not find anything in this Bill which gave the least countenance to the idea that that benefit was to be taken away. Indeed, Clause 3 almost declared that that right should survive. The Amendment would, therefore, be duplicating legislation, and so far as they did that, they gave rise to a doubt as to whether other parts of the beneficial measure of last year were or were not to stand. He thought it would be dangerous to introduce the words proposed.

MR. DONALD CRAWFORD

thought the Amendment would do a decided injury to the Bill, for under last year's Bill the discretion of the magistrate to give or refuse bail before commitment was absolute and final, with no appeal to the High Court of Justiciary, and this Amendment would introduce an element of the utmost confusion.

Question put, and negatived.

MR. CALDWELL

said, that the next Amendment on the Paper in his name was that the words "or refuse to admit" should be omitted from Clause 2. The clause would enable a magistrate, on the application of any person who had been committed until liberation in due course of law for any crime or offence except murder or treason, and after opportunity had been given to the prosecutor to be heard thereon, to admit, or refuse to admit, such person to bail. He objected to the words "or refuse to admit." According to the Law of Scotland, every accused person, except in regard to certain grave crimes, had a right to demand bail, and there also existed a statutory limit as to the amount of bail. By that Bill the Lord Advocate would withdraw both of those privileges from accused persons, and it was proposed that they should no longer have the right to demand bail, and also that there should be no limit to the amount of bail to be exacted from them. If it was left as a matter of discretion for the Judge to admit or to refuse to admit him to bail, then they placed the accused person in a very different position from that which he occupied when his legal right to demand to be admitted to bail existed, because he would have to go as a suppliant and ask to be admitted to bail.

Amendment proposed, in page 1, line 18, to leave out the words "or refuse to admit."—(Mr. Caldwell.)

Question proposed, "That the words "or refuse to admit' stand part of the Bill."

MR. J. H. A. MACDONALD

said, the Amendment raised really a question of principle, the power to refuse bail. If they were to have an unrestricted amount of bail, it was exactly the same thing as if they were to refuse a person bail by fixing a prohibitive amount of £20,000. There was some crimes the persons accused of which ought not to be admitted to bail; and that was the reason why, under the present law, there were four charges that were not bailable, because formerly all were capital crimes. It was very undesirable that a magistrate should be put to the alternative of choosing between the giving of prohibitive bail or preventing the proper procedure of justice. It was far better—a reasonable and proper thing—to leave the question of bail to the discretion of magistrates, giving the accused an appeal against the refusal of the Supreme Court.

Dr. CLARK

said, that no sufficient reason had been given for changing the principle of the law as it had existed for centuries.

MR. A. J. BALFOUR

said, the Bill would assimilate the law of Scotland to that of England, which was more adapted to modern ideas than the old law of Scotland. The acceptance of the Amendment would drive such a wedge into the Bill that the Government could scarcely care to pass it.

SIR GEORGE CAMPBELL

objected to copying England, but thought the Bill a good one on the whole, and believed it would be contrary to the interests of justice that magistrates should not have the power to refuse bail, and therefore he could not support the Amendment. He thought they might rely on the discretion of the Sheriff, subject to an appeal to the Court of Session.

Question put, and negatived.

Amendment proposed, in page 2, line 8, after the word "bail," to insert the words "before or."—(Mr. Caldwell.)

Question proposed, "That the words 'before or' be there inserted."

Amendment, by leave, withdrawn.

On the Motion of Mr. CALDWELL, Amendment made, in page 2, line 20, at end, by adding "failing which the accused shall be forthwith liberated."

Clause, as amended, agreed to.

Clause 5 (Right of appeal to High Court of Justiciary).

DR. CLARK

proposed to amend the clause which gave a right of appeal to the High Court of Justiciary by striking out the words— And where an application for bail is granted by any magistrate whether before or after commitment until liberation in due course of law, the public prosecutor, if dissatisfied with the decision allowing bail, or with the amount of bail fixed, may appeal in like manner, and the applicant shall not be liberated until the appeal at the instance of such prosecutor is disposed of, except as hereinafter provided. He submitted that this provision imported a new principle into the law of Scotland. He held that they ought not to allow the present Procurators Fiscal, so long as they might be the agents of private persons, to have any such right of appeal.

Amendment proposed, in page 2, line 12, to leave out from the word "advocate," to the word "provided," in line 19.—(Dr. Clark.)

Question proposed, "That the words proposed to be left out stand part of the Bill."

MR. J. H. A. MACDONALD

pointed out that the right of appeal in question would not be exercised by the Procurators Fiscal in their discretion. When a prisoner was committed for trial in Scotland, the right to deal with the case passed out of the hands of the Procurator Fiscal, who could then do nothing except under direction of the Crown counsel. If the Amendment were accepted, the result would he a tendency on the part of the Sheriffs to fix too high bail.

Question put, and agreed to.

Amendment proposed, in page 2, line 21, after the word "shall," to insert the words "within seventy-two hours of its presentation."—(Mr. Caldwell.)

Question, "That those words be there inserted," put, and negatived.

On the Motion of Mr. CALDWELL, Amendment made, in page 2, line 23, after "just," by adding— And in the event of an appeal of the Public Prosecutor being refused, the Court may award expenses against the appellant.

Clause, as amended, agreed to.

Clause 6 (Liberation of applicant when appeal by Public Prosecutor).

Amendment proposed, in page 2, line 28, to leave out the words "seventy-two," in order to insert the words "forty-eight."—(Dr. Clark.)

Question, "That the words 'seventy-two' stand part of the Bill," put, and agreed to.

DR. CLARK

asked the Lord Advocate not to make this a Coercion Act altogether. This clause introduced an entirely new principle, by which the Procurator Fiscal was enabled to suspend the Habeas Corpus Act, and keep a man in prison for six days after the Sheriff had decided that he should be liberated. He asked the Lord Advocate whether he intended to press the clause without any modification whatever?

MR. J. H. A. MACDONALD

said, it had occurred to him, after the Bill left the Grand Committee, that a modification might be made on the clause by substituting 96 hours for 144. He moved accordingly.

DR. CLARK

urged that this arbitrary power should not be allowed to remain in the hands of the Procurator Fiscal, and that 48 hours was quite long enough for a man to be kept in prison after he had been liberated by the Sheriff.

MR. ESSLEMONT

suggested that it should be 72 hours in every case.

MR. J. H. A. MACDONALD

said, he could not consent to make a further reduction of the time.

Amendment agreed to.

Clause added to the Bill.

Motion made, and Question proposed, "That the Bill be now read the third time."—(The Lord Advocate.)

DR. CLARK moved the rejection of the Bill as a protest against the 6th clause, which, he repeated, introduced an entirely new principle, and one that ought not to be adopted by the House. For the first time in Scottish law, they were creating a functionary who would have the power of keeping people in prison for four days after they had been ordered to he liberated. He protested against such a right being given.

Question put, and agreed to.