LORDS' AMENDMENTS. (Hansard, 4 August 1870)

§ THE LORD ADVOCATE

Sir, I propose that this House should agree to 1564 the Lords' Amendments to this Bill, with one exception. I will explain in a few words how this matter stands. It was a subject of debate in this House when the Bill was read a second tune, whether the provisions of the Act of 1838, which requires that each sheriff in Scotland be an habitual attendant of the Court of Session during the sitting of that Court was one that ought to be continued. The House resolved that question in the negative, and accordingly as the Bill passed this House and went to the House of Lords, Clause 13—the clause in question — contained these words— All sheriffs, whether appointed before or subsequent to the passing of this Act, are hereby relieved of the duty of attending the sitting of the Court of Session. The House of Lords have deleted these words, and, adverting to the Amendment which omits them, I have to propose that they should in substance be re-inserted, although with a difference which I believe will be satisfactory—at least I have reason to hope so—to some of the noble and learned Lords who thought that there was something objectionable in the form in which they originally stood in the Bill. The Act of 1838 contains three substantive provisions relating to the subject—ono regulating the qualification for the appointment to the office of sheriff, the qualification being that the appointee should be an advocate of three years' standing in practice, and in habitual attendance on the Court of Session. The second provision is, that every sheriff after his appointment shall continue not in practice, because that is a matter which is almost beyond the power of the Legislature, but shall continue an habitual attendance on the Court of Session. I have some reason to believe that it is supposed by some noble and learned persons "elsewhere" that the purpose of the clause in this enactment which the Lords have omitted, was to interfere with the qualification for the appointment to the office of sheriff prescribed by Act of 1838. That is not so. The purpose was not to interfere with the qualification for the appointment at all, but merely to relieve those sheriffs having been appointed who had ceased, whether from their own inclination or without reference to their own desire, from any active practice before the Court of Session, and the neces- 1565 sity of habitual attendance in that Court, before which they were not practising; and accordingly I propose to omit the words as originally inserted in the Bill, and to substitute those words— And so much of the Act of the first and second Victoria, chapter one hundred and nineteen [that is, the Act of 1838] as provides that every sheriff, with the exception of the Sheriffs of the counties of Edinburgh and Lanark, shall, after his appointment, be in habitual attendance upon the Court of Session during the sittings thereof, shall be, and is hereby repealed. And I propose further to add, in order to prevent the possibility of any misconception as to interference with the qualification at present required for the appointment to the office of sheriff— That nothing herein contained shall affect the qualification for appointment to the office of Sheriff, as prescribed by the said Act. The clause, as I now propose to amend it, has therefore no other effect than to relieve the sheriffs, who are now reduced to the number of 15, from the necessity of attending habitually on the Supreme Court of Edinburgh, whether they are in practice before that Court or not. Of course, those who are now in practice will continue to attend the sitting of the Court without the necessity of any statutory obligations; but it appears to me and to those who framed the Bill that it was not required by those who are not in practice Certainly, now that the jurisdiction of the sheriffs is largely extended and the number diminished, that restriction is more objectionable, and I would venture to say—if it is not too strong a word—more mischievous than it was before.

§ THE LORD ADVOCATE

I have now to propose to the House to disagree with the Lords' Amendment as to the omission of Clause 14. This clause proposes to confer upon the Government a power, to be used by one of Her Majesty's principal Secretaries of State, from time to time to prescribe the number of sheriff-deputes to each sheriff town, and such places where they shall reside and attend to the performance of their duty. It is absolutely necessary that that power should be vested somewhere, and it humbly appears to me, and was the opinion of the House when the Bill was here formerly, that Her 1566 Majesty's Government—the Government of the day—is the proper quarter in which to vest this power. The Government is the most direct and immediately responsible body in the country, and it would be entirely out of the question to regulate the number of sheriffs-substitute, or prescribe the places where they were to reside in the discharge of their duties, by Act of Parliament. For the exigencies of public business in the various districts of the country, it is desirable and necessary that there should be some intelligence to regulate the matter for the necessities of the particular districts at the particular time. The Royal Commissioners appointed to report on Scotch Judicature have recommended a variety of changes, and no doubt they will be in the main carried out; but they must undoubtedly be experimental, and from time to time the arrangements will be modified. As I said before, the power of doing so must be vested somewhere, and I have respectfully to submit that it ought to be vested in a body which is responsible like the Government.