HC Deb 28 April 1875 vol 223 cc1754-64

Order for Second Beading read.

MR. ANDERSON

, in moving that the Bill be now read a second time, said, that at present the state of the law was this—that a sheriff might try any case, of whatever magnitude, so long as it affected only pecuniary or personal property; but if in any case there was involved what in Scotland was called heritable right, which was the same as real estate in England, it became necessary, however small the amount, to take it out of the hands of the sheriff, and hand it over to the Supreme Courts at Edinburgh. This amounted practically to a denial of justice to many persons who were too poor to go to Edinburgh to get their cases tried. He believed the feeling in the country generally was in favour of the Bill, the only exceptions being the lawyers of Edinburgh, who naturally did not want their work taken away from them. He, however, thought they had forgotten the large number of cases which were never tried, because of the expense of going to Edinburgh. He had the testimony of the sheriff of Lanark, who had a large experience in these matters, to say that the present state of the law amounted to a denial of justice in such cases, and therefore he thought he would have no difficulty in getting the House to agree to the second reading. However, within the last few days the right hon. and learned Lord Advocate had given them a Bill dealing with this very question, and so far as he (Mr. Anderson) had read it, he would be perfectly satisfied with it; but time would require to be given to the country to see whether it approved of it, as it dealt with many other points besides that which he had raised. Under those circumstances, he would suggest that the same course should be followed as in the last case. If Scotland had perfect confidence that the right hon. and learned Lord really meant to pass his Bill, he (Mr. Anderson) might withdraw the one before the House. The Scotch newspapers did not hesitate to say the Government measure was not intended to pass at all this Session; but he firmly believed that it was the intention of the right hon. and learned Lord to pass it, but he might not have sufficient time, and judging by the way Scotch business had been systematically shelved by the present, and still more by the preceding Government, it was not impossible that obstacles might be allowed to get in the way. He would therefore suggest that the House should agree to the second reading, and he would postpone the Committee until June, In fact, the only difference between the right hon. and learned Lord and himself was, that while he (Mr. Anderson) proposed to remit all cases of heritable right to the sheriffs, without limit as to amount, the right hon. and learned Lord proposed to introduce a limit of £1,000. He would not be at all disposed to fall out with him about that. His only reason for abandoning any limit was that it occurred to him that there might be a preliminary litigation to ascertain the value of a subject, which would be of itself a very inconvenient thing to have; and he thought that as there was no limit in regard to actions in which personal property was involved, there equally seemed to be no great occasion for a limit in the case of real estate. But he would be perfectly content to adopt the limit of £1,000 proposed by the right hon. and learned Lord. The hon. Member concluded by moving the second reading of the Bill.

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

SIR GRAHAM MONTGOMERY

said, contrary to what the hon. Member for Glasgow (Mr. Anderson) had stated, he did not think the House should take the same course with reference to this Bill as it had taken with regard to the last measure. The hon. Member himself, if he understood him rightly, had said that if he thought the right hon. and learned Lord Advocate had a chance of passing his Bill, he (Mr. Anderson) would not think of pressing his; but he should like to know what chance the hon. Member had in that case of passing his Bill, and after such an admission by him, he (Sir Graham Montgomery) saw no good reason for reading it a second time. Now, the whole subject had been reported on by a Royal Commission, and the Bill of the Lord Advocate dealt with the whole question; whereas that of the hon. Member for Glasgow really only dealt with a fragmentary portion of it; and, under these circumstances, he thought the House would do well to reject it.

SIR GEORGE CAMPBELL

said, he hoped that the House would, in regard to the Bill, follow the same course as that which it took upon the last measure, and for very much the same reason—namely, that the Bill of the hon. Member for Glasgow (Mr. Anderson) affirmed a principle as to which they were all generally agreed. Indeed, his only objection to the measure was that it was not wide enough in its scope. He thought that a Bill of the kind ought to deal with the appointment of sheriffs, and when he spoke of the sheriffs, he referred more especially to the sheriff's substitute. Hon. Members from Scotland were aware that by far the larger part of business of Scotland was performed by the sheriff's substitute, who were already with regard to jurisdiction, both criminal and civil, in a considerably higher position and exercising larger functions than that occupied by the County Court Judges in England. Now, if that greatly extended jurisdiction were to be given to them, their position, if allowed to remain unaltered, would be a most anomalous one. They were nominated, not by the Crown as the Representative of the people, but by individuals—namely, the sheriffs of counties, while they received far less salaries than those paid to County Court Judges in England. It seemed to him that a Bill which proposed to extend the jurisdiction of the sheriffs substitute should also deal with the mode of appointing them and with their salaries.

SIR EDWARD COLEBROOKE

said, that the Bill stood undoubtedly in a position somewhat analogous to that of the last measure, and he hardly thought that the House could consistently reject it on the second reading. To do so would be to deny a principle which the House generally assented to. He might say further that the Bill came before them supported, not merely by the authority of the sheriff of Lanark, but by that of a Commission which, after inquiring into the subject, recommended that the jurisdiction of the Sheriff Courts should be extended to cases of heritable right. But while saying that much in favour of the Bill, he must, at the same time, say that while that Commission sanctioned the principle of extending the jurisdiction of the Sheriff Courts to those cases, they did so subject to a very important qualification, in addition to that as to value which the right hon. and learned Lord Advocate had introduced into his Bill. The Commission considered that the defender should be enabled to carry his case up to a higher Court at once, and that no case should be decided in the Sheriff Court without the consent of both parties. If both these principles were embodied in the Bill of the Government, he (Sir Edward Colebrooke) did not see why there need be any great limit to the sheriffs' jurisdiction. If, on the other hand, it was considered desirable to introduce a principle of limitation, he thought that the same principle which applied to cases of small value in regard to personal property might be made in certain cases to apply to heritable right. He trusted that the right hon. and learned Lord would consider the matter, and say whether it would be necessary to introduce the principle of limitation. Although many of the questions involved in the consideration of the subject were of a legal and technical character, which it was not in the power of laymen like himself to decide, yet he thought that Scotch Members might with advantage resort to their little Parliament to consider these matters, and fortified with the advantage of the opinions of the profession, and armed with such criticisms as they received from the different learned bodies in Scotland, he did not despair of seeing these wholesome attempts at legislation finally and speedily accomplished.

MR. DALRYMPLE

said, that although the hon. Baronet who had just sat down spoke with an authority on the subject to which he (Mr. Dalrymple) could not lay claim, yet he thought that that was a question which would be much better discussed in that House than in a Scotch Parliament. He had risen to suggest that instead of the House being asked to read the Bill a second time, the hon. Member for Glasgow (Mr. Anderson) should withdraw it. He could not admit that the case for the Bill was on all-fours with that for the last measure. It seemed to him that the two Bills stood upon a totally different footing; because in the case of the first Bill, a point was raised which was not contained in the measure of the right hon. and learned Lord Advocate, consequently some advantage was gained by reading it a second time; whereas, in this instance, the hon. Member for Glasgow himself admitted that the point dealt with in his measure was embraced in the Bill brought forward by the Government. His hon. Friend had, in his capacity of private Member, been singularly fortunate in passing Bills through that House, and therefore if he consented to withdraw the Bill there need be no risk of his amour propre being injured. On the contrary, he might take credit to himself for having embodied in this measure a principle which was contained in what might be called a Government Bill, and under all the circumstances he would suggest to his hon. Friend that he should not press the measure to a second reading.

MR. ORR-EWING

said, that as the principle of the Bill was not contested, he did not see why the hon. Member for Glasgow (Mr. Anderson) should be placed in a worse position than his hon. Colleague (Dr. Cameron), whose Bill had been read a second time. He agreed with the hon. Member for Kirkcaldy Burghs (Sir George Campbell) that both sheriffs-depute and substitute were at present placed in a false and anomalous position. Duty after duty had been heaped upon these gentlemen, and yet nothing had been done in the way of augmentation of their salaries. He was therefore afraid that the interests of these gentlemen, who occupied a high position in Scotland, did not receive that justice from Her Majesty's Government to which they were entitled, simply because hon. Members in their good nature did not persevere in pressing their just and reasonable demands upon the attention of the Government.

MR. M'LAREN

said, he was in the peculiar position with regard to the Bill, that while he entirely approved of the sheriffs having jurisdiction over the heritable subjects of small value, he was altogether opposed to giving them unlimited power to deal with the larger properties in Scotland. He thought it would be an exceedingly rash thing to give them such a power. In fact, it would be putting them in an equal position to that of the Judges of the Supreme Courts of Scotland. He knew a little about most of the sheriffs-substitute that had been appointed during the last 30 or 40 years—not personally, but by report. He knew that many of them were able men, and that some of them, according to general report, were more able lawyers than their superiors—the sheriffs-principal; but he knew also that many young men were appointed sheriffs-substitute, who had not succeeded in earning a living in their own professions, and who were not supposed to be possessed of a great deal of law, though no doubt they had a great deal of honesty of purpose. He would object altogether to giving these gentlemen this very extensive power, though he admitted that it was desirable to give them jurisdiction in small cases. He thought the limit of £1,000 which the Lord Advocate's Bill fixed was a reasonable one, and if this Bill were pressed to a division, he should feel bound to vote against it.

MR. M'LAGAN

said, he must presume that hon. Members would vote for the second reading of the Government Bill when it came before them, and, if so, they would be stultifying themselves that day if they refused to read a second time this measure, which embodied a similar principle. He therefore joined in the appeal which had been addressed to the right hon. and learned Lord Advocate to allow the Bill to be read a second time, and then to postpone the Committee until after the Government Bill had received the assent of the House. He agreed with what had been said by the hon. Member for Dumbarton (Mr. Orr-Ewing) concerning the sheriffs-depute and sheriffs-substitute. It was high time that their case was taken into consideration. Year after year fresh duties were being imposed upon these learned gentlemen, but no increase was made to their salaries, and he was not at all surprised at the dissatisfaction which had been expressed. Repeatedly, deputations had waited upon the Scotch Members urging upon them the justice of increasing the salaries of the sheriffs-substitute in accordance with the recommendation of the Commission, and he trusted that these representations would be favourably considered by the right hon. and learned Lord. He would only say that, whether the House agreed to the second reading of the Bill or not, he approved most cordially of its principle. He did not think that one Petition had been presented against it, while hundreds had been presented in its favour.

MR. VANS AGNEW

said, he was unable to concur in the observations of the hon. Member for Linlithgowshire. The Bill which the House was asked to read a second time was to give unlimited jurisdiction to the Sheriff Courts of Scotland over heritable property, and he agreed most fully with the hon. Member for Edinburgh (Mr. M'Laren) that it would be very dangerous to give such a power to an inferior court, such as the Sheriff Courts in Scotland. If they affirmed the principle of the Bill, they affirmed the principle that unlimited power ought to be given to these Courts over the largest estates in Scotland. He hoped the House would not do that, but wait for the measure which the Government had laid on the Table. The House had been informed that provision was being made to extend the jurisdiction of the Sheriff Courts in a manner which he believed the whole House would consider to be safe and reasonable, and the hon. Member who had charge of this Bill, and who asked them to affirm this unlimited jurisdiction, did not complain of that jurisdiction being limited to £1,000. It seemed, therefore, that the hon. Gentleman was not very much in love with the principle of his own Bill, when he was willing to cut it down from an untold limit to £1,000 of heritable value. With respect to the salaries of the sheriffs-substitute, his experience did not concur with what had fallen from several hon. Members on that subject. Within his own recollection, the salary of the sheriff-substitute in his district had been very nearly doubled, and he believed that the same might be said in regard to those officials in other counties in Scotland. Moreover, in many cases, by a change in the limits of jurisdiction, the salaries had been made more commensurate with the duties performed.

GENERAL SIR GEORGE BALFOUR

said, that an important question contained in the Bill was its extension to heritable property. All agreed with the recommendations of the Royal Commission in extending the jurisdiction of the Sheriffs' Courts, and only differed as to its amount, but that was only a matter of detail, on which the hon. Member for Glasgow (Mr. Anderson) was willing to leave to be settled in Committee. He congratulated the right hon. and learned Lord Advocate on the honour which he would acquire in having taken up this great and useful reform, and with having dealt with it so comprehensively in the Bill which he had presented to the House; but, at the same time, he would appeal to him to allow the present Bill to be read a second time on condition that, whenever his own Bill passed through a second reading, the hon. Member for Glasgow would at once drop his. The question which the right hon. and learned Lord had taken up was a very large question, and it was one which he (Sir George Balfour) had in vain endeavoured to induce the late Lord Advocate to take up. The present right hon. and learned Lord would give great satisfaction to the people of Scotland if he should succeed in inducing the Government to improve the position, whilst extending in this useful manner the jurisdiction of the sheriffs-substitute.

MR. MARK STEWART

, while expressing his satisfaction at the announcement that the right hon. and learned Lord Advocate intended to deal with the subject, hoped he would not give his assent to the second reading of the Bill; because he (Mr. Stewart) felt convinced that if he did so, it would go forth that the Government were going to give great power and authority to these gentlemen, and although their decisions might be approved of in certain cases, yet there were many instances in which these decisions had been revoked and rescinded, and in which they had not given that satisfaction which he should have liked them to have given. He fully concurred in the remarks which had been made on both sides of the House with regard to increasing the remuneration at present given to sheriffs-substitute, and he trusted that that point would not be overlooked when the Bill of the right hon. and learned Lord came on for discussion. Hon. Members were very much divided in opinion upon the principle of the Bill, and he therefore hoped the hon. Member for Glasgow (Mr. Anderson) would withdraw it.

MR. CAMPBELL-BANNERMAN

trusted that the learned Lord would consent to the second reading of the Bill, on the understanding that had pervaded almost every speech that had been made on the subject. The hon. Gentleman who had just sat down was afraid that there might be a misunderstanding in the country if the Bill were to be read a second time. Fortunately, however, the hon. Member for Cavan (Mr. Biggar) had not exercised his right of noticing the presence of Strangers; and as far as his (Mr. Campbell-Bannerman's) experience went, the reports of debates in the newspapers were much more widely read than the Bills which came before the House. Not only were Bills not read in the country, but they were often discussed in that House at considerable length, without the preliminary process of reading them having been gone through. He thought, therefore, that if the House consented to the second reading, no misunderstanding was likely to arise. The debate would show to the country that there was a substantial agreement that heritable jurisdiction should be conferred upon the sheriffs, and that was the principle of the Bill. The only question was as to its amount.

MR. RAMSAY

said, that however important the question of an increase of the salaries of sheriffs-substitute might be—and he thought it was eminently deserving of attention—it could only be properly dealt with when the right hon. and learned Lord had time to take up the whole subject of the constitution of these Courts. If hon. Members would take the trouble to look over the judicial statistics of the business that came before these Courts, they would see that the State was paying for the services of learned gentlemen in various places where very few cases indeed of importance came before them. He conceived, therefore, that this was not the proper occasion on which they should press upon the Government the consideration of an increase in the salaries of these officers.

THE LORD ADVOCATE

said, that appeals having been made to him to allow the Bill to be read a second time, he might he permitted to appeal to the hon. Member for Glasgow (Mr. Anderson) to withdraw it, inasmuch as it was admitted that his (the Lord Advocate's) Bill comprehended the principle which was enunciated in the present measure. It had, moreover, been conceded that he had drawn a fair limit in the matter of the heritable jurisdiction to be conferred on the sheriffs. The hon. Member for Glasgow knew that he (the Lord Advocate) had never stood in the way of his passing measures which he had thought fit to promote, but, on the contrary, that he had given to the hon. Member every assistance possible; and, under these circumstances, he would suggest that this Bill should be withdrawn. It had been brought forward, he supposed, as a sort of spur or stimulus to him. If so, he could only say that the question had engaged his attention during the autumn; but, unfortunately, illness, which prevented him from attending to business during the early part of this year, had prevented him from bringing forward the Bill sooner. He would remark, as a further reason for his hon. Friend withdrawing his Bill, that it was his intention to press forward the Bill which he had introduced, and he saw no reason why it should not pass. He did not understand that it would meet with much opposition. Although he unfortunately did not number among his supporters a majority of the Members for Scotland, yet his experience was that he had not much difficulty in getting through Scotch business. An additional reason for withdrawing this Bill was that it was a mere skeleton Bill. It confirmed the proposition in the Preamble, but it had no provisions for carrying that out, and remitted the formation of rules to the Court of Session. He did not think that was the proper course to adopt. He thought the proper course was that the Bill should contain the opinions of the House as to the way in which the principle should be carried out. He would further suggest that it was not unbecoming in him to ask that this Bill should be withdrawn, seeing that in the last case he did give way, and an hon. Gentleman had said it was a bad practice, for which the Home Secretary was to blame. He was afraid that if he were in this instance to follow the same course, he might get credit for giving way too easily, and he would suggest, therefore, that there should be a withdrawal of the Bill. When he brought his measure forward, he should be ready to give every consideration to any Amendments which might be suggested.

MR. ANDERSON

said, the right hon. and learned Lord thought that, having given way in the last case, he ought not to be asked to do so in this.

MR. SPEAKER

said, he would remind the hon. Member that he was not entitled to make a second speech. He might, however, explain to the House the course which he proposed to take.

MR. ANDERSON

said, he was aware that, as the rejection of the Bill had not been moved, he was not entitled to a reply; but he was only going to say that, as suggested by the hon. Member for Bute, he had no reason to feel that his amour propre would be hurt by withdrawing the Bill. On the contrary, he was only too pleased to find that its principle had been taken up by the Government; because, in that case, he knew it would meet with attention, and as the right hon. and learned Lord had said it was his full intention to press on his measure, he would therefore withdraw the one before the House.

Motion, by leave, withdrawn.

Bill withdrawn.