HC Deb 12 April 1842 vol 62 cc309-23
Mr. Wason

rose pursuant to a notice which he had placed on the motion paper— To call the attention of the House to the practice adopted by counsel before its committees, with the view of providing a remedy, having for its object the advantage of the suitors, and upholding the dignity of the judi- dicial tribunals of this House. The hon. Member proceeded to point out to the House the inconvenience, expense, and injustice of the present system of counsel engaging to attend several committees of the House at the same time, and urged that the House should follow the example of the Court of Chancery, compelling counsel, with the aid of the solicitors, to select a particular court, and not to run from one to another, to the great confusion and delay of business, as well as to the damage of their clients. According to the present mode of doing business — or rather of not doing it— counsel would be retained to appear before several committees simultaneously, and the consequence was that in the evening they had what were called consultations, not for the purpose of advising but of being advised what had been done during their absence in the day, and of furnishing them with that knowledge of which they ought to have obtained full possession by personal attention to the business which they had undertaken. The remedy which he was about to propose would not, he thought, decrease the actual fees of counsel, while it would have the effect of diminishing the expenses of their clients. The present practice was to keep suitors before committees as long as possible; but he would have the practice altered, so as to make counsel discharge their duties as speedily as possible. At present a nominal fee was inscribed on the brief, and the counsel was paid at so much a-day, and then followed the evening consultation; and by these means some hundreds of pounds were paid to the counsel before the proceedings terminated. It would be much better to pay him the whole sum at first, and the business would be expedited. It was common to hear people say that the courts of justice were open to all parties; so was the London Tavern, if you had plenty of money in your pocket. In 1705 a grievance existed with regard to election petitions, which drew upon it the attention of the House, and a committee was appointed, according to whose report the system was fraught with abuse, inasmuch as the practice was to employ twelve or fourteen counsel, and put parties to so much expense that it amounted almost to a denial of justice. The case was the same in the present day. He recollected in 1832, a noble Lord, still a Member of the House, upon a petition against his return being presented, standing up in a manly manner and saying, that although he believed his seat to be quite secure, he candidly confessed that he had not money sufficient to pay the enormous expenses of defending his return. His constituents then, in a manner as honourable to the noble Lord as it was to themselves met together and came to the determination of defending the noble Lord at their own cost, and the consequence was that he retained his seat. So, then, justice could not be obtained without an immense cost; and the House would recollect the case of an hon. Member, and some of his family, whose return had been repeatedly petitioned against for the avowed purpose of putting them to extraordinary expenses. Was it not a monstrous injustice that a seat in that House could not be defended but at the expense of many thousands of pounds, and that questions which in the ordinary courts of law might be settled at the cost of a few hundreds must put a suitor before a committee of the House of Commons to the expense of as many thousands? He had known cases in which hon. Gentlemen, after having engaged their counsel, could not obtain the assistance of one of them, and in one instance he knew that four counsel had been retained, and yet the committee after waiting some time, were obliged to adjourn their sitting, because they could not get counsel to attend. Then, again, suppose, there were twenty or thirty witnesses, as often there were, and even more, either the petitioner or the sitting Member must pay their expenses, and those expenses were constantly increased by the neglect of counsel. The House was much indebted to the noble Lord the Member for Monmouthshire for the part he had taken with regard to private and election committees; but he did not know that he had done anything to meet this difficulty; and he would, therefore, solicit the attention of the noble Lord to the subject. Counsel themselves had been heard to complain that they were retained in so many election committees. There was a story told of the late Mr. Harrison, whom a Member of that House found warming himself in the Exchequer Coffee-house one morning, and who, when informed that twenty persons were calling out for him at the House, replied to the effect that it was very likely, since he was engaged in at least a dozen election committees, and since he could not properly attend to them all, he thought the fairest course he could pursue was not to go near any. That he was told by an hon. Member of the House for a fact. ["The Chancellor of the Exchequer: It is an old Joe Miller."] He did not think so; but if the right hon. Gentleman would point out the page in Joe Miller where the story was told, then, of course, he must have been deceived by his friend. If he could prevail upon the House to adopt the resolutions which he was about to submit, he thought the evils of which he complained would be remedied, and the present regulation of the House applicable to the subject might be rescinded. The resolutions he should propose in pursuance of his notice were— 1. That parties attending any committee of this House, and having liberty to appear by counsel, do at the first sitting of the committee deliver to the chairman the names of the counsel retained, which shall be inserted in the minutes of the committee. 2. That upon no account shall any counsel appear before two committees on the same day, unless one of them shall have previously closed its proceedings. He could not conceive what possible objection there was to the adoption of those resolutions. He called upon the House to agree to them in order to put an end to a system which he considered discreditable to all parties. He thought that the door to the administration of justice ought to be opened as widely as possible. The House ought not to allow hon. Members to retain possession of their seats unjustly, or to give them the power to shake their purses in the faces of the petitioners, and thus set them at defiance.

The standing order of the House relating to the hearing of counsel in committees was read by the clerk at the Table, after which,

Sir J. Graham

wished to ask the Speaker whether it were competent for the hon. Member to proceed with his two resolutions before the standing order of the House which had just been read, with reference to hearing counsel, was formally rescinded?

The Speaker

thought it was necessary first to rescind the resolution of the House to which the right hon. Baronet had referred, before the motion of the hon. Member could be put from the Chair.

Mr. Wason

observed, that it was not his object to interfere with the present standing order of the House. He wished only to make an addition to it.

The Speaker

said, he had understood the hon. Member to state that it was his object to confine one counsel to one election committee.

Mr. Wason

said, that was not the pur- port of his resolution. He had been misunderstood.

Sir J. Graham

said, that the object of the hon. Member was to limit the counsel employed before election committees to one inquiry. He had not had much personal experience in such matters, but from the result of his observations in those courts, he did not hesitate to affirm that the counsel who were generally engaged in such investigations conducted the business intrusted to their care with great ability, and with satisfaction to those whose interests they represented. It was not his intention to resist the motion of the hon. Member, with the view of supporting the pecuniary interests of those employed in election committees, but he did so on behalf of the suitors. He did not see any of the inconveniences which the hon. Member said resulted from the present practice of employing men of great talent and experience. He was not aware that the suitors had any ground of complaint. The hon. Member who had brought forward the present resolutions was on the eve of being personally engaged with an election committee, and he had no doubt but that the hon. Gentleman would avail himself of the best legal assistance he could obtain at the bar. He did not think that the hon. Member had any satisfactory ground for his motion.

Mr. Williams Wynn

perfectly agreed in the opinion that the expense incurred in prosecuting an inquiry in an election committee of the House of Commons in many instances prevented justice from being done to the parties concerned. In fact, there was often a complete denial of justice under such circumstances. Let the House look at the time often occupied in such investigations. He remembered a committee which sat some years ago to enquire into the Middlesex election. That committee sat for four months, with the intermission of one week. In fact, the committee sat more hours than did the House of Lords during the seven years they were engaged in the impeachment of Warren Hastings. The hon. Member said that he wished to secure for Members the best legal assistance they could obtain. The counsel who were to be employed were to be engaged in no other inquiry, or to receive no other retaining fee. How was the counsel to know when the other petitions would be presented, and the other inquiries commence? He was, anxious if possible, to further the object of the hon. Members. His main objection was that it would be impossible to ascertain the duration of the inquiry before the election committees. If that could be effected, then no injury would be done to the counsel employed. He did not see how the resolutions of the hon. Member could practically be carried into effect.

Mr. Wallace

was sure that every one must have felt much indebted to the right hon. Member who had just sat down, and who had devoted so much of his valuable time to the practices of election committees, for the expression of his opinions on this question, and he was quite certain that the opinions of the right hon. Member would sink into the minds of those who were opposed to them. The expense of election committees was a grievous evil —it was a growing evil—and he hoped to see some remedy. One great objection to the present system was that counsel ran from place to place, and from committee to committee. He did not know whether this was a Joe Miller story or not, but it was notoriously true. The late eminent counsel, Mr. Harrison, had said, or if he had not actually said it, he might have said, that he was engaged on so many cases, that it would be no more than justice to the parties to keep his fees in his pocket without speaking a word. If the counsel could not do their duty, was it just for them to take their fees? He could not understand how Gentlemen, knowing that they could not be in more places than one at one time—he could not understand how their friends in that House could defend them in taking money without giving value for it. Lord Den-man had set an example to the House. He would not allow himself to be imposed upon, and he at once adjourned the court, considering he had been insulted, by counsel, running from court to court, and thereby obstructing the business of his. He believed that the first counsel at the bar—the first official Member of that House, was one upon whom that visitation was made. He believed Sir W. Follett was one upon whom Lord Denman shut his court. He hoped to see this principle followed in the present case. But he was afraid there was too much professional interest in that House—as almost every family of any note in England comprised Members of the profession—that it was almost impossible to find a favourable consideration in that House for the purpose of mitigating this great evil. There was also another case. Hitherto, they had spoken only of election committees, but he wished also to speak of parties to private bills; before committees on these bills, counsel acted in the same manner. Two or three would come and go on with the business for some time; then the stars would gradually leave, and one of the junior counsel would in their absence get up and speak — not to the point that ought to occupy the committee, but, as Members of that House sometimes did, he speaks against time; thereby wasting the time of hon. Members of the House who had no right to be called, on such terms, to do such additional duty. He contended that if Members were bound to declare that they would be present "from first to last," doing the duties imposed on them as members of committees of that House, and an exceedingly proper declaration it was—if they were obliged to attend in the committee-room at a certain time and stay there without quitting the room till the Speaker took the chair, was it fair that Gentlemen who were well paid—ay, confoundedly well paid—for their time, should be also paid for wasting the time of those who served their country gratuitously? There really was a monstrous waste of time on private bills, and it would be an immense benefit to the parties concerned in them, if both counsel and Members were bound to stay in the room till they had settled the business that had called them together. He should wish if he could, to prevent at present in committee, and pursue a plan similar to that of quarter sessions, where the business went on, and the opinion of the counsel was asked as to points of law, if necessary. He believed that all counsel before committees of that House, whether for private bills or elections, did nothing but misrepresent the case on each side to the best of their ability. He believed that it was their duty, as he was sure it was their practice, and he thought they would not be feed unless they adopted it. In a conflict between a wealthy body, such as the Corporation of London and a poorer interest, it was impossible to say what confusion might not be introduced by the power of the purse, by employing three or four counsel: the smaller party would be driven to the wall, or forced to make an unfavourable compromise. That was done every day; and it was a practice of which constant complaints were made. He was aware, however, that it was difficult to come to a satisfactory adjustment upon the question. He confessed that he did not clearly see his way in the matter, but he was equally certain that the hon. Gentleman who had brought the subject under the consideration of the House, deserved their best acknowledgments. There was a rule in force to the effect that two counsel only should be heard before a committee. Now, it appeared to him that it would be desirable, whether this rule were continued or not, that two counsel should be compelled to remain in each committee, and not be allowed to run from place to place during the proceedings, in the same way as Lord Denman had prevented counsel from running from court to court in Westminster Hall. He believed that the course his Lordship had taken upon that occasion had given general satisfaction. He hoped the House would take the entire occasion of the proceedings before committees into its serious consideration; and if any improvement were suggested upon the plan proposed by his hon. and learned Friend, he was sure that he would not refuse to it his support.

Mr. S. Wortley

said, there was one method of lessening the expenses before election committees which had not yet been referred to—that was to establish a more satisfactory and a more competent tribunal. He had the greatest respect for the opinions and judgment of the right disposed to look at his measure with the utmost impartiality, but in its working he had seen much reason, and that more and more every day, to say that it had totally failed in attaining the objects the right hon. Baronet had in view. The right hon. Baronet could not perform impossibilities; and he thought that it was quite impossible that they could construct a proper tribunal—one which by its decisions could give satisfaction to the public, while they confined themselves to the materials to be found in the House. If they could form a competent, but above all, if they could form a judicial tribunal for the trial of election petitions, they would do more to lessen the expenses of such trials than any other plan they could adopt. Were such a tribunal formed as he had sketched out, many of the petitions which were now prosecuted would never have been presented. The parties who now speculated upon the ignorance of the committees on matters of law would never have brought their petitions before a properly constituted judicial tribunal. The great fault of the present system was that the Members of the committee were generally not only ignorant of law, but they were called upon to act upon precedents of the most discordant nature—upon precedents which might be referred to, not only upon both sides of a question, but upon both sides of every question that could possibly arise. The present tribunals came to such uncertain decisions that they tempted speculation upon the chance of success before a committee, and he must protest against so very partial a remedy as that proposed by the hon. Member for Ipswich being applied to so great an evil.

Mr. O'Connell,

having been alluded to by the hon. Member for Ipswich, begged leave to have it distinctly understood that he made no complaint against the learned counsel. He retained them, well knowing that he could not obtain the whole of their valuable time; he took his chance of having as much of it as possible—that was the understanding between them, and faithfully they had performed their part; therefore he had no complaint to make. In reference to what had fallen from the right hon. Gentleman (Mr. Wynn), he would only say, that most frequently the examination of witnesses was the most important part of the duty of a counsel, and therefore demanded the care and attention of the man of ability and experience. He was afraid that the prophecy he had ventured had turned out too true, and that the experiment of the right hon. Baronet and of the House had totally failed. True, it was not asked now of what opinions were the majority of the committee, but every one asked what were the politics of the chairman. And it must ever be so, so long as the House retained the exclusive jurisdiction in such cases within themselves. He trusted that the hon. Member for the West Riding of Yorkshire, whose time of life, whose experience, and whose position in the House qualified him for the task, would come forward with some plan for the formation of a better and more competent tribunal. It was absolutely necessary that it should be done, and as the hon. Member had found out the evils of the present system, he owed it to the country that he should turn his attention to the subject, The amendment must be twofold—it must begin with the registry, form an appeal court, and then a man having been placed on the registry, let him enjoy the franchise for a certain time under all or any circumstances; and after an election, if there must be a committee, let it be one where justice was sure to be had. Let them form the tribunal, not from the House but from that class from which they selected the judges. Let them be well paid, and he would answer for it there would be a saving in the end, for the contests would not only be fewer, but the proceedings in those which were prosecuted would be much shortened. The hon. Member had committed himself to the task, and, whatever service the advice of an ancient lawyer could be to him, his was entirely at his command.

Mr. W. O. Stanley

was of opinion that the defects of the present system, and the great expense to which parties were put, arose from defects in the registration of electors and the want of a defined franchise. As it was intended that both should be placed on a better footing, he did not think that the House ought to part with its jurisdiction until the system had had a fair trial,

Mr. Aglionby

agreed very strongly in the opinions which had been expressed by the hon. Member for Yorkshire and the hon. and learned Member for Cork. The present tribunals did not give more satisfaction than those which had been abolished. He also agreed that they must commence any reformation of the system by amending the registration of electors, and after that amend the constitution of the tribunals to be appointed for the trial of disputed cases. But he was disposed to go further, and commence with the simplification of the franchise. The question which had been proposed by the hon. Member for Ipswich was one of great difficulty, and he did not think they would find many Members in that House competent to do justice to its importance. He did not think the hon. Member would gain anything by dividing; he should suggest that he should change his motion, and move for a committee. They were bound, as far as they could by law, to-lessen the great expenses incurred in these petitions, but he did not think that the plan of the hon. Member for Ipswich would have that effect. As long as talent was appreciated, so long would they have the race run by men of the highest attainments, and he believed it would be impossible for that House to prevent such a proceeding. If counsel were only permitted to attend one committee, what would be the consequence? Why, eminent counsel would calculate on the length to which committees might extend, and would exact an enormous fee for their attendance on those committees. He thought if a committee were appointed before which counsel and agents may be examined, that an intermediate course might be adopted which would lessen the expense of the parties. He thought the advantages to the members of the bar were but as a feather in the scale, and that the interests of the public should alone be regarded. He hoped the hon. Member would change his motion, and would ask for a committee to investigate the subject.

Captain Fitzroy

entirely agreed in opinion with his hon. Friend the Member for the West Riding of Yorkshire; yet, at the same time, as the decision of the House forming the present system had been given so recently, any one attempting in the present Session to moot the question of amending it, would meet with a very slight chance of success. There was one means, he thought, which the House had the power of adopting by which these committees might retrieve their character. Let them put in the chair of all election committees men of distinguished abilities at the bar—men of high standing and character, many of whom they had in the House. They had Sir W. Follett, Sir T. Wilde, and many others—he cared not from what side such men were chosen—let them be placed in the chair of such committees, and the object desired by all would be very speedily attained. Time was now lost because hon. Gentlemen who were placed on committees were not fully aware of the value of evidence; they, therefore, allowed much that was irregular to be given—much that had no practical bearing on the case— such evidence would be at once rejected by such Gentlemen as he had named. Again, much time was now consumed by counsel mooting points of objection for the mere purpose of delay. He had not yet served upon any election com- mittee, but he had often attended them, and he had seen points mooted which the counsel laughed heartily to see the committee entertain. With such Gentlemen as he had named in the chair, all the time so wasted would be saved. He could see no difficulty or objection to his proposal. If Gentlemen of their standing, in order to gratify their ambition, chose to obtain seats in that House, he thought the House had a right to demand from them the exercise of their talents and experience in a matter of such vast importance. The hon. and learned Member for Cork was perfectly right in saying that the only inquiry on the appointment of an election committee was as to the politics of the chairman. That was the inquiry both in the House and out of it. Not one man either in the House or amongst the public, but looked with the utmost suspicion upon the decisions of committees, and it was of the utmost possible importance that some change should be made. He thought the one he suggested was deserving of the attention of the House.

Lord G. Somerset

said, the question of appointing Gentlemen of the legal profession as chairmen of election committees, had engaged the anxious attention of a committee of that House which had considered this subject in a former Session. He thought it would be difficult to obtain men of eminence in the profession to preside over all the committees; and, unless they could have men of first rate eminence to occupy such stations, he considered it would be most unwise to adopt the suggestion of the hon. Member who had just sat down. With regard to the proposition of the hon. Gentleman now under consideration, although its object was a. good one, he thought its results would be most mischievous. If the hon. Gentleman wished to diminish the expense attending proceedings before election committees, he must go further than he proposed to do—he must limit the number of agents and attorneys employed, and alter the whole machinery of the system. Although the expense of counsel might be considerable, yet he thought that many other items in the expense attending such proceedings were equally as extravagant, and much less justifiable. He concurred with the hon. Gentleman in thinking that the convenience of counsel alone ought not to be considered; but it was frequently advantageous to the suitors to consult their convenience. He did not think that suitors, in cases of election petitions, would be benefited by the proposition of the hon. Gentleman, but that it would rather tend to their disadvantage.

Mr. Wason,

in reply, said, he conceived the resolution he had proposed was quite adequate to attain the object he was desirous of effecting. Hon. Gentlemen, on both sides of the House had agreed in admitting the failure of the measure of the right hon. Baronet (Sir R. Peel). The only question now asked, in the House, as well as out of it, was, "What sort of a Chairman have you got? Is he a man of your own political opinions or is he opposed to you?" If you say, the Chairman differs from you in political opinions, the observation is, "I am afraid, then, you won't succeed." If you say the Chairman is one of your own party, the reply is, "Then you're all right." It was not now asked, what were the sentiments of the majority of the committee, for by the, measure of the right hon. Baronet, three Members were selected from each side of the House; but the opinions of the Chairman were alone regarded, for his casting vote decided any question which might arise in the committee. If the noble Lord (Lord G. Somerset) would take the subject into his consideration, and move for a committee to inquire into it, he was willing to leave the matter in the hands of the noble Lord; or if the committee to which the selection of Chairmen of Election Committees was confided, and of which the noble Lord was the Chairman, would adopt measures for lessening the enormous expenses attending these investigations, it would meet his views. He would withdraw his motion; and if it appeared to be the opinion of hon. Gentlemen on both sides of the House, that this question should be referred to a committee, he would not lose sight of the subject.

Mr. Childers

thought that the great objection to the constitution of election committees was the want of qualification on the part of its Members to decide the legal questions that were raised before them. In fact, the counsel were much too clever for the judges. The counsel raised as many points as they could; and Gentlemen on the committee were too apt to give great weight to objections raised by counsel on their own side in politics, and to disregard the objections raised by the counsel on the other side. He had sat on a committee, and he believed that there never was a fairer committee, still the decisions to which they came left no strong and satisfactory impression on the mind as to their soundness. But he did not ascribe this to party bias so much as to the inability of the Members of the committee to decide the difficult points that came before them. As committees were now constituted, no counsel, however confident of the goodness of his cause, could go before a committee with an assurance of success. In a committee of which he had been a Member, there were six or seven and twenty divisions, and he did not believe, that more than one of them was at all of a party character. On that occasion, four were on one side, and three on the other; the four were Conservatives, and the three Whigs.

Sir Robert Peel

thought the speech of the hon. Gentleman was the strongest demonstration of the perfect fairness of the jurisdiction that could be given. Out of twenty-six or twenty-seven decisions, there was only one or two, said the hon. Gentleman. [Mr. Childers: Only one.] Only one; and why should that one be considered a party decision? Observe, these Gentlemen had acted together twenty-seven times without reference to party, and because there happened on one occasion to be four Members on one side and three on the other, the hon. Gentleman called that a party decision. Why should it not be presumed that on that particular occasion the decision was according to the honest opinion of those hon. Gentlemen? He hoped the House would not always be governed by what the losing party said with respect to a committee. Whatever tribunal they might constitute, he would venture to say, that the loser would complain, and would be very much disposed to impute some improper motive. With respect to the appointment of a chairman, he might observe that it was not a part of his original proposition. It was the suggestion of the noble Lord the Member for London; and he being anxious to keep the jurisdiction to the House, gave his assent to the proposition. He hoped the House would not, because of the complaints against counsel or against the committee, consider that the decisions of these tribunals were not perfectly honourable and fair.

Mr. Childers

did not impute motives to the committees, he merely thought them not qualified to decide the points that were brought before them by counsel, and, therefore, could not do justice to the parties.

Sir Robert Peel

was quite surprised that any committee should allow counsel to take any unwarrantable liberty with them. The committee ought to prescribe limits within which counsel should conduct their case.

Mr. Ewart

said, he did not understand the hon. Member to attribute any partiality to the committee, but to their inability to understand legal questions. For his own part, he did not think that with regard to private bills and those committees, they were as perfect as they should be, and with respect to the latter, they should have judges to control both counsel and Members of the House.

Motion withdrawn.