PARLIAMENTARY ELECTORS— (SCOTLAND).

HC Deb 11 April 1839 vol 46 cc1306-14

The Lord Advocate

rose to ask permission to introduce two bills; the first for the better ascertaining and defining the rights of voting for Members of Parliament in Scotland; and the second for the better registration of parliamentary electors in Scotland. He believed that all persons acquainted with the subject would admit that it was desirable that some regulations were necessary. All would agree that it was a matter of great importance, and he trusted that the measures which he should introduce, would receive impartial attention, and that he should receive aid from all parties in placing the elective franchise in Scotland on such a footing as would give general satisfaction to the country. It had been a subject of general complaint under the old system of parliamentary election, that the practice of colourable votes prevailed to a great extent, and notwithstanding the attempts to get rid of it by the Reform Bill, complaints had been repeatedly made within the last three or four years of the great prevalence of similar practices. About five years ago he had stated, that such practices prevailed, and the system of creating colourable votes had gone on increasing since that time, and he feared it was likely to go on if it were not put a stop to by some legislative enactment. At the period he alluded to, he introduced a bill for this purpose, but it was at the time strongly opposed by several Members on both sides of the House, and in consequence he did not persist in it. By some it was opposed as being calculated to narrow the elective franchise, and by others it was opposed on the ground that it was a gross interference with the natural influence of property. Since that period the practice had much increased, and there was no doubt that it had excited very general dissatisfaction; and unless the House were to devise some means for stopping it, the evil would go on increasing to a greater extent, than any one could be aware of. One great cause of this evil was, the limited extent of the county voters in Scotland; the counties were much more limited in extent than they were in England and Ireland, and consequently a greater motive was held out for creating a constituency, by means of fictitious votes, for the purpose of giving the victory to one party or the other. Thus the evil went on, and it was impossible to point out how far it might extend. So peat, however, had it become that two Sessions ago a committee had been appointed for the purpose of ascertaining how far the provisions of the Reform Act had been trenched upon by the creation of fictitious votes in Scotland. It would be necessary for him to call the attention of the House to the report of this committee, which was not a very long document, although the evidence taken before the committee was of considerable extent. The report pointed out the manner in which the fictitious votes were created, and divided them into three heads. The first, life-renters; secondly, joint-proprietors; and thirdly, joint-tenants. As a proof of the extent to which the evil of this system prevailed he would read a short extract from the report:— The fictitious or colourable votes brought under the notice of your committee may be classed under the following heads:—first, life-renters; second, proprietors, joint or several; third, joint-tenants; and of these more especially the first. For example, in the county of Selkirk, in 1832, the whole constituency was 180, among whom were very few life-renters, and none were non-residents. In 1836, the constituency had increased to 552, of whom 112 were life-renters, and of these five only were resident. In Peebles, the constituency, in 1832, was 301, of whom the life-renters were eight, and all resident. In 1836, the constituency was 576, of which the life-renters were 100, and only twenty-eight of them resident. This statement would explain to the House the consequences of the inducements held out to persons engaged in political contests to increase the number of the constituency, and this increase took place to a greater extent where parties were more nearly balanced. Thus, in one county for instance, between 1832 and 1836, the constituency had been increased from 180 to 552. There had also been a great increase in the number of voters in the larger counties, which had been effected by dividing properties into small portions, and thus creating a number of 10l. houses. The committee showed that the increase had been chiefly effected by means of the creation of life-renters. There was every reason to believe that this description of property was extremely rare in Scotland previous to the passing of the Reform Bill, but it had greatly increased since that period. For instance, in the county of Selkirk, where previous to the Reform Bill there were only five life-renters, and none non-resident; there were at present 112, showing an increase of 107, and only five of them were resident. The same observation held good with respect to the county of Peebles, where formerly there were only eight life-renters, which in 1836 had increased to 100, and of them only twenty-eight were resident. The report described the manner in which this class of voters was created, but he did not think that it would be necessary for him to read it to the House. He felt this the more strongly, for he had put the question to many resident Scotch proprietors, and he could safely say, that it was admitted by gentlemen of all parties with whom he had conversed on the subject, that the evils of the system were manifold, and that the sooner a remedy was applied the better. He would appeal to any hon. Gentleman whether a very great evil had not been introduced with this system, which was experienced to a considerable extent by both parties in Scotland, and whether it was not for the interest of all parties that it should be got rid of. The report said— Your committee have anxiously sought for the most effectual means of checking the creation of colourable votes under these several denominations of the franchise, and having carefully considered various suggestions which have been made to them, agree in recommending;—1. That all life-rents by grant should be limited to persons being in occupation, either by themselves or tenant, such tenant not being the fiar, or any one holding in the fiar's behoof. 2. That in all cases of proprietorship, whether in fee or life-rent, acquired otherwise than by succession, infeftment should be imperative. 3. That a clear beneficial interest of 10l. a-year, over all burdens and charges, should be proved to be derived from the subject claimed on. 4. That any party claiming as joint-tenant, should prove, to the satisfaction of the court, that such joint-tenancy involves a real participation of profits and liabilities, sufficient to afford the qualification. These changes, however, will not be of themselves sufficient to meet the evils complained of. There are circumstances in the construction and practice of the Registration and Appeal Courts, which afford facilities for the creation of these objectionable votes, and which have been made matter, as it appears to your committee, of well-founded objection. The principle of these are the admissibility of fresh evidence on appeal: the absolute proof required of collusion, which, in some cases, it is impossible to arrive at; the mode of examination adopted by most of the sheriffs; the expense incurred by the summoning of the same witnesses to the Registration Court, and again to the Court of Appeal, often at a very inconvenient distance; and, lastly, the want of uniformity of decision in the Appeal Courts. This acknowledgement of the com- mittee was of importance, although their suggestions were not very good, and would not prevent the recurrence of these evils. One of the greatest evils that was felt in Scotland in connection with the elective franchise was the great expense, delay, and vexation, that attended the proceedings before the registration courts. Great expense was incurred, in the first instance, in establishing a vote before the sheriffs, and the committee recommended that the law should be altered on this point. There was at present no means of securing anything like uniformity in the decisions of the several courts, and the decisions of one sheriff were often very different from those of others. There certainly could not be a greater evil than that arising from the want of uniformity in the interpretation of the law as to the rights and qualifications of voters, for if in one county the proceedings or qualifications were different from what they were in another, no person could know What course ought to be pursued, and there must arise great dissatisfaction with regard to the administration of the law on this important subject. On this point the committee said— An appeal already lies from the decision of a single sheriff to a court composed of several of his professional brethren habitually engaged in adjudging similar cases in adjoining counties; and your committee think that much might be done to produce increased uniformity of practice in the whole body, by giving a farther reference to the body of the sheriffs at large in certain cases. With this view their attention has been directed to one of the provisions of the new 'Sheriffs of Scotland Bill,' which is now in progress through your House, whereby it is enacted, that the sheriffs of Scotland shall hold meetings periodically in Edinburgh, to revise the procedure of the Sheriffs' Courts. It seems to your committee that at these meetings the conflicting decisions of the Appeal Courts on claims for enrolment might also fail to be considered; and, with that view, making it imperative on the sheriffs to hold such meetings, it should be rendered competent for any party against whom a decision had been given, differing from what had been given on the same point in another appeal court, to bring that discrepancy under the knowledge of the court by whom his case has been decided, and require that the case shall be submitted for the consideration of the general meeting of the sheriffs. Your committee do not mean to advise that the decision come to by the general meeting shall in any way affect the case already disposed of; but they would hope it could hardly fail to influ- ence the future decisions of the appeal courts. He entertained no such hope, for where there were separate and independent courts with different judges, there was no reason why one court should show any deference to the decision of another, or that the judge should believe his opinion to be wrong, because it was not in conformity with that of another at a distant spot. He saw no other remedy for this evil than having an appeal court, with respect to votes, before which the decisions of all the sheriffs' courts could be decided; by this means uniformity of decision might be produced in every part of the country. On this point he confessed that he did not think that the committee had gone far enough, and he thought that they should have suggested either this or some other remedy. He proposed that this appeal court should consist of three judges to meet and sit at Edinburgh, and he considered that it would be extremely improper to mix this with any of the established tribunals. Let it be established on any footing that Parliament might think proper, and let it be either permanent or for a limited period. He believed that such a court would give satisfaction to the country, provided its proceedings were kept distinct from the other tribunals. He now came to another point—namely, the out voters. The committee said they were not prepared to recommend an alteration in the franchise on so important a point as doing away with the out voters. The practice of creating fictitious out-voters did not exist in either England or Ireland, and therefore no remedy was called for in either of those countries. This he said in answer to the objection that might be raised, that he proposed to get rid of a class of voters in Scotland that were to be continued in England and Ireland. He admitted that it was liable to that charge, but the reason for that was, that the evil did not exist in either of those countries. It did exist in Scotland. Was she, then, to have the remedy withheld because that evil did not exist in England or Ireland? The committee were in hopes that the number of non-resident fictitious voters would not increase. He frankly admitted that had he the slightest hope that such would be the case, he would have been most unwilling to introduce the provision in question, which would undoubtedly create division, which he much wished to avoid. But he saw no other remedy for the evil, and therefore he felt bound to propose it; and after all, he was satisfied that the evil would increase the moment either party felt there was a necessity for more voters. He did not blame any party in particular as to this practice. He would state one case, which came before the committee, when it was admitted a gentleman had created five voters on his estate. Four of these were from a distance, from Ireland he believed—the fifth was his game-keeper. It was in the nature of things that voters being wanted in such a manner, would be taken from a distance—it might probably be difficult to get them in the country. Would it be imagined that he would have gone hundreds of miles away for these votes, and subjected himself to travelling expenses, if he could have got them nearer to serve his purpose? But in this instance it had honestly been stated why these voters had been chosen. Perhaps the measure which he now proposed might be unpopular with some, but he would put it to the House if these means were suffered to exist, whether the real constituency would not eventually be overwhelmed by fictitious voters. On that ground he should propose to make residence necessary to the exercise of the franchise as a remedy for this evil. He did not say that this was necessary or advisable, either in England or Ireland, but he would say Scotland, where this evil existed, was not to be regulated by England or Ireland, where it was not complained of. Some regulations were necessary with respect to polling; but to these points he would merely refer. The hon. and learned Gentleman concluded by moving for leave to bring in a bill to ascertain and define the right of voting for Members of Parliament in Scotland.

Lord Stanley

was extremely happy, that this subject had engaged the attention of the Government, and that a bill had been brought forward and submitted to the consideration of Parliament by the law adviser of the Crown in Scotland, and of course with the authority and sanction of Ministers, for the remedy of abuses, the existence of which could neither be denied nor overlooked. At the same time, he confessed, had the bill been brought forward in any other quarter, he should have felt very much disposed, after hearing the statement of the learned Lord, to resist its introduction, because, so far from being what it purported to be, "a Bill to ascertain and define the right of voting for Members of Parliament in Scotland," it was, in fact, a bill totally to alter the Reform Act,—to alter it, not only in opposition to the distinct recommendation of the Committee which sat during two Sessions, but to alter it in such a manner as to make the whole principle of the franchise in Scotland completely different from that of England and Ireland. He was not quite certain, that he rightly understood the learned Lord's proposition as to life-rents. He did not know whether the learned Lord intended to adopt the suggestion which was made in the Committee, but negatived without a division, entirely to abolish life-rents, or whether, while retaining a qualification distinctly and expressly given by the Reform Bill, analogous to the rent-charges in England and Ireland, it was meant simply to ascertain, that the person claiming really possessed a bonâ fide, or only a colourable, interest in the property. The course proposed by the Committee was, that steps should be taken to ascertain that the person claiming really was in possession of a substantial, and not a colourable interest; but the learned Lord seemed to say, whatever amount of interest might be possessed, a franchise distinctly given by the Reform Act should, if unaccompanied by residence, be altogether taken away. He could not consent so far to restrict the operation of the Reform Act; he could not consent, after the experience of the last few years, and the anxiety which had been show for the establishment in the three countries of a representation founded upon the same principles, to apply to the property of Scotland a different rule from that which governed England and Ireland. The learned Lord had referred to the various recommendations in the report, but omitted to inform the House that the Committee had taken into consideration the particular point of residence; and that a proposal was made by the hon. Member for Argyleshire to the effect, that unless the claimant should have an establishment, or personally reside in the county for not less than one month in each year, or unless he should possess an estate in the county of not less than 100l. per annum, his franchise should be taken away; but it was negatived by a vote of nine to three, the learned Lord being in the minority. He thought, it would have been but fair if the learned Lord had stated this: the proposition was almost unanimously repudiated by the Committee. He felt confident, that the learned Lord would, in discussion, find it impossible to substantiate the view which he had taken upon this subject. He did not think this was the most convenient opportunity for entering into details; it would be better, avoiding discussion for the present, to allow the bill to be introduced—they would then see how the Government proposed to meet the exigencies of the case; they would then see whether abuses could not be remedied without a violation of principle; whether they could not do away with colourable and fictitious votes, at the same time retaining a franchise intentionally and substantially conferred by the Reform Act. There was only one other point on which he wished to say a few words before sitting down. The learned Lord had not stated, that his proposal for a court of appeal had been seriously considered by the Committee, and that the difficulty of it was so strongly felt, that they could not recommend its adoption. The learned Lord felt the impropriety of appointing the judges of the land, and mixing up political with their judicial functions. Was the proposal, then, that three barristers of six years' standing should sit for six weeks in Edinburgh, and practise the rest of the year? If so, what confidence could be placed in their proceedings, when they would have to revise the judgments and reverse the decisions of barristers of fifteen or twenty years' standing? He was far from thinking, that the bill would be satisfactory to the people of Scotland; but, as he was anxious that the evils complained of should be remedied, he hoped, without grossly violating the principles involved in the Reform Act, he should offer no opposition to the introduction of the bill.

Leave given.