HC Deb 12 June 1868 vol 192 cc1516-25

Order for Second Reading read.


, in moving that this Bill be now read a second time, said, that when he asked leave to introduce it in February, he had stated that it was not his intention to proceed with the measure until it had received the consideration of the different legal bodies in Scotland who were interested in it. The measure had accordingly received the careful consideration of these legal bodies. In the first place, the Bill was submitted to a committee of the Faculty of Advocates, consisting of twenty Members—men who were engaged in practice—and the Committee were unanimously of opinion that the Bill contained many valuable provisions for amending the procedure, and the judicial arrangements now existing, of the Court, and they added that, although further and early legislation might be thought necessary and expedient, they hoped a strong effort would be made to carry the measure. A committee of the Writers to the Signet expressed their satisfaction at finding that the main provisions of the Bill were to abolish unnecessary forms involving expenses and delay, and to render procedure more simple, economical, and expeditious than at present. To these objects they gave their ready approval, although they could not assent to all the provisions of the measure. The solicitors practising before the Supreme Court had expressed an opinion that a measure cm bracing so many details could not be expected to be acceptable in all its provisions, or to meet all the evils of the system with which it dealt; but they regarded it as a step in the right direction, and many of its provisions would be beneficial. Having regard to the necessity of obtaining a measure dealing with the present state of things, the Council were of opinion that the Bill should be proceeded with, although many of its provisions might not be exactly all that they could wish. It was of course, in such a measure, impossible to expect unanimity in all matters of detail, but such were the views of those much interested in the matters with which the measure was meant to deal. Another body of legal gentlemen in Scotland had given the measure a good deal of consideration—the solicitors who conducted business before the Sheriffs' Courts, and the whole body of country practitioners, who did not practise before the Supreme Court, bin felt an interest in the judicial system; and the view taken by the Council of country practitioners was that they were unwilling that this Bill should pass, and the reason they assigned was that its provisions, so far as they went, were so good that they entertained an apprehension that, if it passed, there would he no further investigation or reform in the Courts of Justice in Scotland. He was not inclined to adopt that view; for he agreed with the opinion of the practitioners before the Supreme Court, that it was of great importance that they should have some improvement in the general system, and that such improvement ought to be introduced as soon as possible. But this Bill should not stand in the way of the fullest investigation into the jurisdiction and constitution of all the Courts—not only of the Court of Session, but of all the Courts throughout Scotland. It was, therefore, the intention of the Government to issue a Commission somewhat similar to the Judicature Commission issued last year in this country, and at present sitting and applying itself to the constitution of the English Courts; and he was assured that very valuable results were likely to attend the labours of that Commission. As representing to some extent the legal body of Scotland, along with his light hon. Friend opposite, who was at the head of the Bar, he felt that it was for the interest of the Bar, and for the interest of all connected with (be Courts, that, if there existed a desire on the part of any considerable body of their countrymen for investigation into the constitution of all the Courts, and into the judicial arrangements of the country, it was only reasonable, and for the interest of the Bar and the Courts, to have such an investigation as might bring about a better system of the administration of justice. He wished it to be distinctly understood that while he considered, along with the practitioners interested in the business of the Supreme Court, that it was desirable the Bill should pass into law—he did not menu to say as originally introduced; for it would be his duty to give effect, as far as he possibly could, to the conflicting opinions expressed, so as to bring the whole system into harmonious action—it was nut his wish to stifle the fullest investigation into the constitution of the Courts. It was the wish of all who wished well to the country that the judicial system should command its confidence and respect; and therefore it v, as that he proposed such an investigation should take place. He sincerely hoped that he might be able to modify this Bill, which had given him a great deal of trouble, in such a manner that it would meet with the unanimous assent and approbation of the profession, and pass the House this Session. There would then be this advan- tage, that the Commissioners would be able to observe its effect, and would see whether the changes which it made were improvements or not. If they found that it was a step in the right direction, they could continue it; and if it were not successful, they could try some other plan. He therefore proposed that the Bill be read a second time, pass through Committee pro formâ, and then the suggestions of the various legal bodies having been received, should be re-committed, and such alterations should be made in it as were deemed advisable after consideration of these suggestions.


said, he would not go into the details of the Bill, but while supporting the second reading, he felt no hesitation in saying that the Bill did not go far enough. He had long been of opinion that the forms of their judicial procedure in Scotland had been framed at a time when the operations of commerce were much slower than they were at present, and that those forms were not adapted for the scale of commercial relations which now existed. He could have wished, therefore, that his hon. and learned Friend had dealt with the matter with a bolder hand. He recollected that not very long ago the Common Law Courts at Westminster Hall were almost deserted in consequence of the dilatory forms of procedure. The result was that the legal profession inquired into the matter, and a Bill was brought in which passed—namely, the Common Law Procedure Bill—which abolished a great many old obstructions and useless legal forms, and in a couple of years afterwards Westminster Hall was as full of business as ever. Now, that was an example which he thought ought to be followed in Scotland, and which legal reformers there need not be ashamed to follow. He was, therefore, prepared to support the proposition of the Government. He thought that the Bill would be an improvement, and, at all events, a step in the right direction; and there was no reason whatever why it should not go further, and put an end to a great deal of unnecessary delay. He was very glad to find that his right hon. Friend was going to recommend the issuing of a Committee of Inquiry. There was nothing on the part of those who were connected with the judicial system of Scotland which need make them fear the results of that inquiry. On the contrary, such investigation was very desirable, with a view to put an end to some of the ignorant, and he might say absurd, misrepresentation that had been put forward from time to time in the public prints on the subject of the business of the Court of Session. If that inquiry were made, ns he bad no doubt it would be, by competent persons, it would, he believed, produce the greatest possible benefit, and put a stop to many abuses which had been caused by the exaggerated misrepresentations to which he referred.

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


said, he would not oppose the second reading, because the Bill contained many valuable provisions; but he thought the House would have been very glad to have had a little more satisfactory assurance from the Lord Advocate as to the extent of the inquiry to be made by the proposed Commission which was to follow the Bill. The learned Lord had stated that it was to inquire into the jurisdiction and constitution of the Courts, and he mentioned some minor details with respect to the number of the Judges and of the Courts; but he did not think that the country would be satisfied unless there was also a full inquiry into the procedure of those Courts, and the best means of preventing their present dilatory mode of conducting business. The state of the law required great amendment both with regard to the internal administration of the Court of Session and in its relation to the subordinate Courts. He hoped that the inquiry which they had been promised would have special relation to the procedure in the Courts, and expressly injury trials; for on all these points there was great room for improvement. The people of Scotland had an example before their eyes in the cheap and rapid justice of the Sheriffs' Courts, and they could not fail to contrast it with the cumbrous forms that were followed when their suits went before the Court of Session. He thought the right hon. and learned Gentleman had given too high a colour to the reception which his Bill had met with from the profession; he thought he had seen some opinions expressed of a contrary character. The country practitioners, and even some persons who practised in Edinburgh, objected to the details, and indeed to some of the fundamental principles of the measure. He put it to his right hon. and learned Friend whether, looking at the state of the Session and the scanty opportunity that would be afforded for discussing the details, the best course would not be to refer the question to a Select Committee, with a view of separating those parts which were strongly objected to from those parts to which no objection was entertained? He did not think that any reform of the Court of Session, as it now stood, would give satisfaction to the country which did not proceed more upon the principle of the Bill introduced four years ago by the right hon. Member for Edinburgh (Mr. Moncreiff). He was not so sanguine as the learned Lord in anticipating that small measures of this kind would stave off more comprehensive legislation; and there was an inconvenience in requiring people to become acquainted with new modes of procedure which were likely to be superseded by more radical changes. He had no wish to stand in the way of some moderate reform; but he thought that something far more searching and comprehensive was necessary to give satisfaction to the people of Scotland.


said, he had no objection to allow the Bill to be advanced this stage, on the understanding that, in assenting to the Preamble, they were only assenting to what every Scotchman would concur in—that some alteration for the better ought to be made in the Court of Session. He was inclined to think that the Commission should precede legislation. He hoped that, when the Commission was issued, some care would be taken that it did not consist too exclusively of Edinburgh lawyers—because, whether rightly or wrongly, throughout Scotland there was great distrust of Edinburgh lawyers. Of course, the legal profession must be represented on the Commission; yet country lawyers, and gentlemen who were in the interests of the clients, should also be represented.


said, he hoped the Lord Advocate would not take the advice given to send the Bill to a Select Committee. Of all things that could be done, that would be the worst, for it would prevent the possibility of any legislation taking place this year; and the Bill contained so many good provisions, that it would be a great pity to lose the benefit of them even for one year. Reference had been made to the opinions of the legal bodies on the question: and, in fact, it seemed to be assumed that Courts were made solely for the benefit of legal practitioners, but he maintained that the public were those who had the main interest. Among all the parties who hat! given their approval to this measure, the Lord Advocate had omitted one which was of more importance than any other—namely, the Chamber of Commerce of Edinburgh, That body contained about 500 members; it included every person of importance connected wish commerce or trade in the county or city of Edinburgh and the burghs surrounding it; and the Chamber bad sent a petition to the House of Commons in favour of the Bill, expressing general approval of its provisions, and praying that it might pass with the least possible delay. He thought this was the highest possible testimony in favour of the Bill; for at least four-fifths, and probably a larger proportion, of all the cases that came before the Court were cases connected with mercantile affairs. The mercantile community, therefore, had a deep interest in promoting the cheap, rapid, and just administration of justice by means of improved legislation, such as the present Bill. As regarded the Royal Commission, he rejoiced at the prospect of its appointment; but he agreed with what had been said by the hon. Member for Forfarshire (Mr. Carnegie), that it should not consist wholly of Edinburgh lawyers; for he knew that there was a certain measure of distrust—though, perhaps, not so great as had been indicated—but still there was a certain measure of mistrust or prejudice which would operate against any Royal Commission composed exclusively of that class. There were some other questions which had not been referred to; one was the number of Judges. In 1852 a Committee of the House of Commons upon Public Salaries reported that the number of Judges was too largo, and ought to be reduced by two. He thought that was a very important point. The salaries of persons connected with most public offices had been considerably increased; but the salaries of the puisne Judges in Scotland remained as they were—at £3,000 a-year. He would suggest that the number of the Judges be reduced by two, and that the salaries saved should be added to the salaries of the remaining nine Judges, so that each would get £3,666. The salaries of the two presiding Judges he thought were large enough. Then there were in all parts of Scotland a number of local Judges called sheriff-substitutes, whose functions resembled very much those of the County Court Judges in England, only they were, in addition, charged with the administration of criminal justice in potty cases. But the judgments of these gentlemen, who heard the case and examined the witnesses, and know the character of the persons on the spot, might be reversed by the principal sheriff resident in Edinburgh, who had never seen the witnesses, and knew nothing about the case except what he learned by reading the evidence laid before him. On appeal to the Higher Courts it was often held, as might be expected, that the judgment of the principal sheriff was wrong, and that of the local sheriff right. Many parties in Scotland thought these non-resident sheriffs ought to be abolished altogether, and that the position of the local sheriffs should be somewhat improved, and put on a more permanent and respectable footing than at present. He admitted there was a difference of opinion on this subject, and that there were some advantages in the system of non-resident sheriffs; but, in his mind, the disadvantages greatly outweighed the advantages. Another great anomaly was that although these local sheriffs were all paid by the Crown by annual Votes, the Crown did not appoint them. The Edinburgh non-resident sheriff appointed his sheriff-substitute at one place with a salary of £1,000, at another with a salary of £800, and at another with £600 a-year. All these sheriff-substitutes, he thought, should be appointed directly by the Secretary of State, at a salary to be fixed by Act of Parliament. Though he would have liked a larger measure, he thought it would be mistaken policy to let this Bill drop, in order that they might wait for a more comprehensive measure, such as that introduced four or five years ago by the Lord Advocate then in Office. It would be better to seize the opportunity of passing this Bill, which contained a great deal of good. When the Royal Commission had reported, he hoped that an additional good measure would be passed, based on its Report.


said, there were very many anomalies and clauses in the existing law, and it was essentially important to get some of them removed as Boon as possible. If they waited till they got a complete and in every way satisfactory Bill, they might wait a very long time; and he was therefore in favour of taking the present Bill as a step in the right direction. He hoped the Lord Advocate would carry out his suggestion of a Royal Commission, and he trusted this inquiry would not be confined to one part, but would include the whole system, particularly as to the double sheriffships—a system that principally existed for the purpose of finding employment for the Edinburgh lawyers. He trusted the Commission would be issued immediately.


said, he would earnestly ask the Lord Advocate not to pass a Bill which they had no opportunity of discussing or examining. He contended that if there was to be a Royal Commission, it should be issued before, and not after legislation. He hoped the Bill would be delayed until after the fullest and most searching inquiry. The opinion of those who know the business of the Court thoroughly, and whose interests would be most affected, should be taken upon the subject. They should strive to get a Bill not to satisfy the Edinburgh lawyers, but to be beneficial to the country. He should like to hear the Lord Advocate defend that most monstrous institution, the system of double sheriffs.


wished to impress upon the learned Lord Advocate the importance of appointing upon the Commission he proposed some gentlemen who would look into the matter from an economical point of view. By this he meant gentlemen who were not connected with that House, and who were not only interested in legal procedure in Scotland, but were conversant with the finances of this country, and would consider the question accordingly. Some years ago the extravagance connected with the Irish Courts was brought under the notice of the Government; a Committee was appointed by the Treasury, and it recommended considerable economical reforms; nothing, however, was done, and the Irish Courts constituted one of the greatest scandals that could be imagined, their cost exceeding the fees by £30,000, while the English Courts paid their way. Last year Acts were passed stereotyping some of the worst abuses of the Courts, and for the time even increasing their cost. He hoped that in this case the principle of economy would be recognized in the Commission.


said, he had already explained that the Commission was to inquire into all questions connected with the constitution and jurisdiction of the Courts and the number of the Judges; and his purpose was that the investigation should be as full and searching as it was possible for it to be. He would recom- mend that it should not consist entirely of either Edinburgh or Scotch lawyers, but that it should embrace English lawyers, although the English Commission included no Scotch lawyer, notwithstanding which it was likely to recommend some assimilation of the English to the Scotch system. He was most anxious that the Bill should proceed, because it proposed amendments of the system in a direction in regard to which there was no difference of opinion, while it also proposed experiments which it would be advantageous to have tried to a certain extent before the Commission concluded its labours. He would remark that the hon. Member for the Ayr burghs (Mr. Craufurd) was an ardent reformer when he took the initiative, but was rather an obstructive when others did so. It did not rest with him to name the members of the Commission, but he was quite of opinion that it should embrace some one connected with the Treasury.

Motion agreed to.

Bill read a second time, and committed for Monday next.