ELECTION PETITIONS. (Hansard, 26 April 1838)

§ Sir Robert Peel,

in undertaking to consider an amendment of the law with reference to the trial of controverted Election Petitions, had taken the course which most probably any other person would have pursued under similar circumstances, and had considered the whole process adopted with respect to election petitions from the first step to the last—from the original entering into recognizances to the final taxation of costs consequent upon the termination of the inquiry. In the course of 615 considering the progress of such a proceeding it appeared to him that there were obscurities in the law which ought to be cleared up, and which he thought might be cleared up without much difficulty—cleared up, too, in such a way as to lead to a considerable diminution of the uncertainty as well as the expense consequent upon the present mode of proceeding. He thought, that the motion with which he should conclude would not in any way interfere with any other measure that might be in the contemplation of the House; because whatever tribunal the House might think proper to appoint for the trial of controverted elections, he believed there would still remain an equal necessity for improving the law respecting the entering into recognizances and the taxation of costs. Whether the tribunal which was to have the power of deciding upon controverted elections were to be a tribunal selected from the Members of that House, or whether it were to be composed of persons who had no direct connexion with Parliament, he apprehended that some recognizances would always be required in cases where petitions were lodged against the return of any of the Members of the House. In that case his motion would be useful, because it would tend to amend and improve the law upon a point upon which it was at present decidedly defective. He avowed at the outset that his great object in proposing the appointment of a select Committee respecting the costs and recognizances incidental to the trial of controverted election petitions would be to diminish, if possible, the chance of an appeal to the House itself. These were subordinate matters, and comparatively of very minor importance, but they were matters quite unfit for the consideration of a popular assembly, biassed in a considerable degree as such an assembly must at all times be by party feeling and party spirit. If they could so clear the law that there should be no necessity for an appeal to the House with regard to the subordinate points of the sufficiency of security, or the extension of time, they would advance, he thought materially in diminishing the influence of party spirit upon the subsequent proceedings. In entering upon this subject he felt it to be absolutely necessary, from considerations both of policy and justice, to divest his argument of every vestige of party spirit, and to throw out no reflections 616 that might be distasteful to gentlemen on either side of the House; but he thought he might venture to say, that all who recollected the discussions which had taken place upon the Pontefract, Bodmin, Dublin, Ipswich, Sligo, and Portarlington election petitions in the course of the present Session—all who recollected the debates and decisions which had been come to by the House upon those cases—would admit, that it must be desirable to prevent, if possible, the necessity of an appeal to the whole body of the House. He thought they might do so, by clearing off some of the obscurities which at present blemished the statute of 9th George 1st, by which these proceedings were regulated. He wished it to be observed, that he confined his motion exclusively to the recognizances and to the taxation of costs. The law provided, that the recognizances should be entered into before the Speaker, but left it uncertain as to whether the sufficiency of the security should be established before the recognizances were entered into, or whether the inquiry upon that point might not be entered into afterwards. Out of this doubt many difficulties had arisen. In the course of the present Session a case occurred in which the surety, wishing to give his recognizance, but, at the same time, foreseeing that it would not be convenient to him to be called upon to establish his sufficiency, applied to the Speaker to receive his security, leaving it afterwards to be determined whether that security were sufficient or not. The Speaker most properly refused to accede to the request; but the very circumstance of the application being made, showed that the law upon the point was equivocal, and, therefore, required to be amended. He thought it most advisable that some short enactment should be introduced to clear up all doubt upon the subject, or that those who hereafter would have to determine upon these subordinate points might do so without the necessity of appealing to the body of the House. A simplification of the law, a clear manifestation of the intention of the Legislature upon these minor points, would be attended with great advantage to those who intended honestly, and would also have a great tendency to diminish unnecessary expense. One of the most painful discussions they had had in the course of the present Session was that which arose out of the Pontefract case. The law required not 617 only that the sufficiency of the surety should be ascertained by examination—not only, that the place of residence, should be given for the purpose of ascertaining who the party was—but it also required that "additions" to the name and residence should be given. Surely this was unnecessary. If the name were known, and the place of residence known, what necessity could there be for requiring "additions?" In the Pontefract case, all the difficulty arose out of the question, whether a tradesman residing in the Regent's -park could properly be called a gentleman or not. Long and angry discussions oftentimes arose out of petty points of that description—discussions which amounted to nothing more than a waste of the public time, and which almost invariably ended without affording satisfaction to either party. It was most desirable that the law should be so simplified as to prevent a recurrence of them for the future. Another point for the consideration of the Select Committee would be the defective form of the recognizance. It had been clearly proved that the form of the recognizance, as at present drawn, was defective, and, consequently, liable to raise disputes. This ought to be remedied. Then some difficulty, or some inconvenience had of late years arisen with respect to the payment of the Master in Chancery for the duty he had to perform with respect to election petitions. By an Act of Parliament, passed at the instance of Lord Brougham, Masters in Chancery were, he believed, prevented from taking any fee. The law upon that point ought to be cleared up. If it were the intention of the House that the duty which the Masters in Chancery had to perform, with respect to election petitions, should be continued, some provision ought to be made to remove all doubt as to the manner in which they were to be paid. He trusted, that the House would be of opinion with him that some advantage would result from a careful revision of all these points by a Select Committee. The other point to which he should wish to direct the attention of the Committee would be the taxation of costs. There were two main heads with respect to the costs of election petitions:—First, the legal expenses, being the expenses of solicitors and counsel; second, the expenses of witnesses. It was of very great importance to witnesses that an early decision should be come to with 618 respect to the sums which they were to receive. The law provided, that, unless the parties agreed between themselves, the taxation of costs should be referred to an officer of that House, or to one of the Masters in Chancery; and if the parties did not agree, the process of taxing the costs was found to be very expensive. The fees were considerable; but it was only right that he should mention that, as far as the taxing bills of witnesses went, the expense had of late been very much diminished by enabling the parties, if they both agreed, to refer the matter to an officer of the House. Since that arrangement had been entered into, the proportion of cases referred to the officer of the House was very great as compared with the cases referred to the Master in Chancery. Taking advantage of the experience which had thus been afforded to them, he thought they might devise a plan by which these expenses might be still further diminished. An officer had lately been appointed to decide upon the expenses connected with private bills. He believed, that that officer had discharged his duty most satisfactorily to all the parties immediately concerned, and with great advantage to the public. He (Sir R. Peel) wished, therefore, to throw it out for consideration whether, as they had such an officer appointed, whose time could not be fully occupied in determining the expenses of private bills, it might not be well to make him the judge in all matters of expense connected with election petitions. He (Sir R. Peel) thought, that much advantage would result from employing a person acting under the general direction of the Speaker, with the power of appealing to the Speaker upon matters of doubt, and responsible for the decision to which he might come. He thought, too, it might also be fitting for the House to consider whether some new arrangement might not be made with respect to the payment of costs. At present, the costs were not paid by the parties presenting the petition, unless the petition was pronounced by the Committee to be frivolous and vexatious. He (Sir Robert Peel) thought it might very well be open for consideration, whether a report from the Committee, that there was no "probable or reasonable ground" for the petition might not be sufficient to impose upon the petitioners the payment of the costs. He wished the Select Committee 619 to enter only into an inquiry upon these subordinate matters. He was induced to move for the appointment of such a Committee, because he felt satisfied, that no partial amendment of the present system—no inquiry which did not embrace the whole of the proceedings upon election petitions—could possibly be satisfactory. He was anxious, therefore, that this Committee should be appointed for the purpose of ascertaining whether the obscurities which existed in the law with respect to these subordinate matters, might not be cleared up previous to his bringing in the Bill of which he had given notice that evening, and which he should introduce on the 11th of May. The right hon. Baronet concluded by moving, "that a Select Committee be appointed to consider the law and practice relating to the entering into recognizances, and the payment of costs in the matter of election petitions, and to report their observations thereupon to the House."