HC Deb 20 May 1836 vol 33 cc1134-41

The Order of the Day having been moved for the further consideration of the Report of the registration of Voters Bill,

Mr. Warburton

said, he had given a great deal of consideration to this subject, and had in consequence prepared some clauses which he would propose to have refered to the committee in the way of instructions. The House must be aware of the many inconveniences which arose from the present mode of registration be fore the Revising Barristers. The great number of barristers upon whom at pre sent that duty devolved, tended rather to produce delay than to expedite the business. The most serious inconvenience, however, arose from the variety and in consistency of their decisions, which took away anything like certainty as to the state of the law upon this subject. He would mention one case in illustration of this. In the county of Middlesex the pos session of shares in the New River Company was held by the Revising Barrister to confer a right of voting. In the adjoining county of Hertford, the Revising Barrister held quite an opposite opinion. A third barrister was called in, that the point might be decided by a majority either one way or the other. The opinion of the third, however, was completely at variance with the opinion of the other two, so that no decision could be come to. The object he proposed to himself was, to establish something like certainty and uniformity in their decisions. That, he feared, was not attainable under the present sys tem. What he attempted to accomplish therefore, in the clauses which he should submit to the House to be referred to the committee, was the establishment of a Court of Revision and of Appeal. The greatest difficulty he felt was as to the quarter in which the appointment of the barristers in these new Courts was, to be lodged. He was not supposed to vest this patronage in the Judges, and his motive was, that barristers, if the Judges had the power of appointment, might be induced to look up too much to the Court, and thus be prevented from discharging their duties in that independent and unbiassed man- ner which the honour of the profession and the interests of their clients required. The Judges should be placed as much as possible beyond all suspicion of being influenced in the appointments they might make by any party or political considerations. It appeared to him that it would not be improper to vest the patronage in the Executive Government; but yet it might give rise to jealousies and suspicions, which, if possible, it would be desirable to avoid, he, therefore, gave up that idea. To vest it in the Chancellor might be attended with some advantages; because, being at the head of the law, he must naturally be supposed to have some knowledge of the qualifications of those whom he appointed; and, besides, being a member of the Government, the responsibility of the Government would to a certain degree be involved in his appointments. After all the consideration he was able to give the subject, the conclusion to which he came was, that the most advisable course, that to which he saw the fewest objections, would be, to vest these appointments in the Speaker. One great object he had in view was, to limit the number of Revising Barristers, and thereby to produce ultimately more uniformity and clearness in their decisions. The expense of the Revising Baristers under the present system was 32,0001. a year. Now, by reducing the number to twelve, the half of this sum 16,000l., would be sufficient to provide a respectable salary for each of these twelve barristers. With out trespassing further on the time of the House he would move the first clause, in the shape of a resolution, to this effect— "That it bean instruction to the Committee to make provision for the establishment of a permanent Court of Revision, and also for a Court of Appeal from the same."

Lord John Russell

regretted, that there was not a fuller House for the discussion of so important a subject as that which the hon. Member for Bridport had brought be fore the House; for he (Lord J. Russell) was most desirous to ascertain what were the sentiments of the House on the proposition then before it, which would make a very considerable alteration in the pro visions of the Reform Bill. His own impression was, that the object which the hon. Member for Bridport wished to accomplish vas a very desirable one. Before this Bill was brought into Parliament, he had stated to his hon. and learned Friend the Attorney General, that it was his opinion that there ought to be a permanent Court of Revi- sion, with a smaller number of Revising Barristers as Judges, in order to obtain some uniformity in their decisions; but there was a difficulty in establishing such a court, owing to the same day being fixed throughout the kingdom for the payment of those rates and taxes which gave the elective franchise—a difficulty which at that time he did not see the means of overcoming. The advantages of the establishment of such a Court of Revision as the hon. Member for Bridport contemplated were so very great, that if he could believe that it met the general approbation of the House, he would not withhold his assent from it, but would do all in his power to facilitate its construction. Among the rights of individuals which were liable to dispute, he had always lamented that there should exist so many doubts as to the rights of individuals to vote for members of Parliament. Those doubts arose from the various descriptions of franchise which formerly existed in various parts of the country. The Reform Act had cured that to a certain extent by making the franchise almost uniform throughout the towns of the country. Still that variety of franchise existed in the counties; and though the variety of decisions as to what constituted that franchise was not greater now than it was before the appointment of revising barristers, it was much more generally known, because the revising barristers gave their judgment with some degree of formality in public, while formerly the assessors gave their judgment in the sheriffs' room almost without a witness. It was most desirable, both for electors and for candidates, that there should be certainty as to what constituted the right of voting, and that, when a question on a doubtful point was decided, the decision should extend to all parts of the kingdom, so that you should not have a voter in Yorkshire disfranchised upon grounds upon which his franchise had been allowed in Cornwall. It would therefore be a matter of great public advantage to have a court of revision, and from that court of revision a court of appeal. By the formation of such courts, you would in the course of a few years frame a body of decisions which would fix the law, and remove all doubts on the subject. The doubts also as to the franchise which arose out of the conflicting decisions of election committees would be removed by the formation of this court of appeal; for if there were a court of appeal pro- perly constituted, it was quite evident that a body of gentlemen acting upon oath in such committees would avail themselves of the information collected by such a court, and govern their decisions by its judgments. We should thus get certainty where we now had doubt, and put an end to that expensive litigation which arose out of that incertitude that now prevailed. The hon. Member for Bridport would see from this, that he (Lord J. Russell) was friendly to his proposition as far as its principle went, but the House would re collect that he had stated before, that his difficulty was as to the parties by whom the courts of revision and appeal were to be appointed. He agreed with his hon. Friend in thinking, that there were very strong objections to vesting the appointment of the revising barristers in the judges. It was objectionable to place patronage of this kind in the hands of per sons holding the rank of judges in this country, because it rendered them liable to charges which, though unfounded, could not be avoided, where the passions of men were heated by political contests. As to the appointment by the Crown, there were still greater objections. His hon. Friend had therefore proposed to give to the Speaker the power of appointing members of the courts of revision and appeal. He did not see the same objection to in vesting the Speaker with the power of appointment. which he did to giving it to the judges and the Crown. The Speaker was supposed to be impartial in conducting the proceedings of that House, but still, in matters of politics, the Speaker was not and could not be altogether impartial. The name and authority of Speaker led the individual who filled the chair to do justice to all parties in that House, but taken as he was from the ranks of one or other of the two great parties which divided the state, with one of which he must have voted for at least fifteen or twenty years, it could not be said that he, like one of the judges of the land, was perfectly impartial. If the Speaker were to appoint the revising barristers, it could not be said that the House was giving him by that appointment a political character which hitherto he had not possessed. On the other hand this scheme was exposed to this disadvantage—that it would be said that the Speaker selected for revising barristers those lawyers who were of his own politics, rather than those of adverse politics. He knew of no other person better qualified for conferring those appointments than the Speaker. He should be glad to entertain the proposition of his hon. Friend the Member for Bridport. As to the patronage, he would rather that the House decided by whom it should be exercised than give any decisive opinion on it himself. The only remaining question was whether they should go into Commit tee in order to have these clauses inserted in the Bill. He thought it would not be fair to insert them, unless the House was prepared to reconsider the whole Bill in Committee on a future day.

Mr. Williams Wynn

had always been of opinion that the system provided by the Reform Bill for the management of the register of votes would be productive of evil and inconvenience, and the result had answered his prediction. He had also always been favourable to the appointment of some court of appeal, the effect of which would be to afford some degree of certainty and uniformity to the decisions on the law of registration. For his own part, he was certainly desirous that greater competency and a higher degree of talent should be secured by a diminution in the number of barristers, and a consequent increase in the amount of emolument apportioned to each; for he was of opinion that that was the best economy which secured the highest order of talent in the market. He objected to the principle of the proposition which would vest the right of choosing the revising barristers in the Speaker. He thought that the Speaker could not be supposed to have a personal knowledge of the fitness of the individuals suggested to fill the offices, and that he must therefore be expected to rely in a great measure on the recommendation of the Attorney and Solicitor-General. He (Mr. Wynn) would much rather the right of appointment was vested in the Lord Chancellor, who would make the appointments in the face of Westminster Hall, and subject to the influence of public opinion. He would not object to joining other legal dignitaries to the Lord Chancellor for the purpose, as, for instance, the Lords Chief Justices of the King's Bench and Common Pleas, and the Lord Chief Baron of the Exchequer.

The Attorney-General

expressed his satisfaction at the manner in which this proposition had been received by the House. A plan almost similar to this had been pro posed to him some time ago by his noble Friend (Lord J. Russell), but the great difficulty which they both had felt was with respect to the alteration of the day for the payment of rates and taxes, a day which was the same throughout the kingdom. His hon. Friend (Mr. Warburton) had met that difficulty manfully and successfully, and, in his opinion, had completely obviated it. It could not be denied, that the present system had caused great dissatisfaction, but that was no reflection on the profession to which he (the Attorney-General) had the honour to belong. When they took 175 barristers from that profession to act as Judges, it would be no wonder—supposing them to be as learned even as the judges of the land —if great discrepancies were found amongst their decisions. By fixing the number of the Revising Barristers at twelve, they would get an uniformity of decision, which would command the respect and confidence of the public. The business of the country would be done at the same time more efficaciously and more economically. He hoped the House would now go into Committee pro forma, in order to have it proposed in the Committee, and then to have it printed.

Mr. Charles Buller

approved of the pro position to substitute a Court of Revision for the present system of the Revising Barristers, but he objected strongly to vesting the appointment of members of that court in the Speaker, not from any doubt that the eminent individual who now filled the chair would make a good selection, but because, in future, when a Speaker had filled the chair during a period of six or seven years his means of judging the fitness of the individuals appointed would be very much diminished. He thought, also, that it would ill contribute to the maintenance of the dignity and authority of the Chair if its occupant were liable at all times to be attacked and cavilled at for acts committed by him in the discharge of the trust reposed in him. He objected, also, to the proposed constitution of the Court of Appeal. He thought that this court might with more advantage be connected with the Election Committees of that House. His own proposition to the Committee which had been appointed to inquire, into this subject had been, that there should be a certain number of permanent chairmen of Election Committees, who would act in every respect as a Court of Appeal on the decision of the Revising Barristers, and by the same process intro duce uniformity in the decisions of Election Committees. The Court of Appeal pro posed by the clauses of the hon. Member for Bridport, must of necessity not be composed of a permanent and unfluctuating body, and to their decisions would attach great inconvenience. The estimation of those decisions would in a great measure depend upon the public opinion of the degree of capacity of the individuals to whose lot it had fallen to make them, and he therefore thought that some fixed body, like that to which he had referred, would be preferable.

Mr. Bernal

observed, that as the H o u appeared to approve of the principle of his hon. Friend's motion, it would be better to abstain from discussing it until they went into Committee. Whether the appointments should rest with the Speaker or the Secretary for the Home Department would be a proper matter for the Committee to decide.

Mr. Charles Villiers

did not disapprove of the nomination of the Speaker to appoint the functionaries for the revision of votes. He felt strongly the defects of the present system, and agreed that it was absolutely necessary to make some change. He was sorry, however, that his hon. Friend, the Member for Bridport, did not agree in the appointment of a Court of Revision. Much blame had been thrown on the barristers, but he thought unjustly, as most of their time was occupied in correcting the errors committed by those to whom the making out the lists was intrusted. He would prefer that the curate of the parish, or the parish clerk, should make out the lists in the first instance, instead of the overseer.

Mr. Warburton

would prefer that the appointments should rest with one individual rather than with many, as there would be more responsibility. He should prefer that the Speaker had the appointment of the Revising Barristers, rather than the Lord Chancellor. He only wished at present that his proposition should be agreed to,pro formâ and it could be introduced into the Bill in Committee, and considered on a future occasion.

The Speaker

said, that the first intimation which he had of the intention of the hon. Member for Bridport to give to himself the appointment of these Judges, was from reading it in the printed resolutions. He must own that he read it with regret, and subsequent reflection had not diminished that regret. He thought it would in some degree combine the executive with the legislative power, to which latter he thought the functions of the House ought to be confined; still, if it was the pleasure of this House to fix this duty upon him, he would acquiesce in it. It would, he considered, be placing an appointment which ought to be responsible, in the hands of the only Member who could not stand up in his place and defend his conduct when questioned.

Resolution agreed to, and instruction ordered accordingly.

Lord Ebrington

moved "that it be an instruction to the Committee to insert a clause limiting the time for taking the poll to one day."

Agreed to.

The House resolved itself into a Committee.

The clauses proposed by Mr. Warburton and by other hon. Gentlemen, having been added to the Bill, with the view of their being printed and taken into consideration at a future period.

Adjourned for the Whitsun holidays.