HC Deb 12 June 1883 vol 280 cc468-82

(Mr. Anderson, Mr. Cochran-Patrick, Mr. Buchanan, Mr. James Campbell, Mr. Bolton, Mr. Arthur Elliot, Mr. Armitstead.)


Order for Second Reading read.


, in moving that the Bill be now read a second time, said, it was a Bill for the purpose of removing a grievance which had been felt for some years past in Scotland. Under the Procedure Clause of the Judicature Act of 1875, the Lord Chancellor was empowered to make certain Rules, which were to take effect out of the jurisdiction of England. The word "Scotland" was not used in the clause, and, through that fact, it had passed unnoticed and without discussion. The attempt to bring Scotland under the jurisdiction of the English Courts had been repeatedly made before, and always defeated. It had been made in 1852, in 1854, and by a direct Bill in 1875; but what had failed in a direct manner had been carried in an indirect manner, and had passed unnoticed, and so a grievance was inflicted upon Scotland. In a short time Scotland began to feel the mistake she had made, and a deputation waited upon the then Lord Chancellor (Earl Cairns), to get him to modify to some extent the Rules which had then been in force for one year. That modification only went the length of requiring that an affidavit should be made that there was no Court of competent jurisdiction in the town in which the defender resided, and the Judge was instructed to take into consideration the amount of debt, and the comparative cost of following it in Scotland and in England. Practically, the question of cost and the question of amount had been altogether ignored. The only consideration by the Judge had been whether there was a competent Court in England, rather than whether there was one in Scotland; and, upon that point, affidavits had been made in the most reckless manner by creditors in England. They had not hesitated to make affidavits as regarded Edinburgh, and Glasgow, and other largo towns in Scotland, that there was no Court of competent jurisdiction to try their cases. Men who would make false affidavits, would equally make claims that were false; and the result was, that many claims had been made against Scotchmen, and writs served upon them, through which they had been dragged to the English Courts to defend themselves. The consequence was, that it had become the practice among Scotchmen, who were so served with writs, either to compromise the case, or pay the claim; because they found it much cheaper to get off in that way, than to come to England to defend themselves. In that way, a great deal of injustice had been done. He had presented Petitions from all the principal Bodies in Scotland about this matter, upon which there was a very strong feeling. He was aware that the right hon. and learned Lord Advocate had been in negotiation with the noble and learned Lord Chancellor, with a view of getting him to modify his Rule; but the people of Scotland were tired of these negotiations. They had been going on for a year, and had hung fire; and, in the meanwhile, this grievance had been increasing. After all, even if the Rule were altered, that would only be a temporary relief. What they wanted in Scotland was to be replaced by Statute in the position in which they were previous to the passing of the Judicature Act of 1875; and that was the object of this Bill.

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


said, he thought that, before a Bill of this importance was read a second time, or even discussed, the House ought to know what the view of the Government was upon this matter. According to the statement of the hon. Member for Glasgow (Mr. Anderson), the matter had been brought by the right hon. and learned Lord Advocate before the noble and learned Lord Chancellor, and the views of that noble and learned Earl, who was, of course, more interested in seeing matters of this kind properly carried on than anyone else, ought to be laid before the House before the Bill was proceeded with. If the hon. and learned Solicitor General could now state those views, he (Sir R. Assheton Cross) should have nothing more to say; but, unless that hon. and learned Gentleman was prepared to state what course the Government, on the responsibility of the noble and learned Lord Chancellor, were going to take, he should move that the Bill be read a second time that day week. In order to get the noble and learned Lord Chancellor's views, he would move that Amendment.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon Tuesday next."—(Sir Richard Cross.)

Question proposed, "That the word now' stand part of the Question."


said, this was a matter which, as the hon. Member for Glasgow (Mr. Anderson) had stated, had been under the consideration of the noble and learned Earl the Lord Chancellor. There was no doubt that, by virtue of certain Rules under the Judicature Act of 1875, the power of jurisdiction had been extended beyond the limits previously existing. At the same time, he (the Solicitor General) thought this Bill went rather far. The matter was, however, at present under consideration by the noble and learned Lord Chancellor, and the right hon. and learned Gentleman the Lord Advocate, with a view to so modifying the Rules in respect to the service of writs outside jurisdiction, as to put the matter on a sound and satisfactory basis. If the Bill were read a second time it would, in his opinion, require amendment. It would not be satisfactory in its present form, because it went too far. He did not deny that, at present, there was justice in the complaints with regard to the service of writs under the existing law; but this Bill would withdraw, from the jurisdiction of the English Courts, matters which it seemed to him ought to be within that jurisdiction; and, therefore, if the Bill were passed into law, there would be power of jurisdiction in Scotland over English cases in which no such jurisdiction would exist in England. There was no doubt that the view taken by English and Scotch lawyers was somewhat different. Under the English law, the point that regulated, in a great measure, the question of jurisdiction was the place where the cause of action arose. If the contract and breach were in this country, then it was regarded as a matter within the jurisdiction of the English Courts, even though, when the right of action arose, the parties were resident in Scotland. On the other hand, the Scotch Courts regarded the jurisdiction as regulated, mainly, by the question of domicile of the parties to the suit; but the Scotch Courts had a jurisdiction which English Courts had not. If they found an Englishman in Scotland possessed even 1s., they could issue a writ quite apart from the question of residence of the Englishman in that country. Therefore, the hon. Member for Glasgow (Mr. Anderson) was not correct in supposing that an Englishman could not be sued in Scotland, unless he was a resident there. Englishmen could be, and were, sued in any case where they had property. Therefore, there was that material distinction between the jurisdiction of the two countries; and what they must try to do was to regulate these two jurisdictions. It seemed to him that it would not be fair to leave jurisdiction in Scotland in actions against Scotchmen, and yet deprive the English Courts of all jurisdiction in every case in which the man was resident in Scotland. He thought no one would doubt that there were cases in which it would not be unreasonable that the parties should be sued here, even if resident in Scotland. Supposing there were some questions with regard to something done in respect to property which a man had in England. He might have property here, and there would be jurisdiction here, and he might commit some act here with regard to that property, yet he would have to be sued in Scotland, although the whole matter arose from property here, and the contract in respect to it was made here, and the breach of the contract took place here. That seemed to him to be in excess of what was reasonable. [Mr. ANDERSON: The 2nd clause saves that.] The 2nd clause provided for attachment within the jurisdiction; but effects could not be attached in the jurisdiction in the sense in which effects could be attached in Scotland. There was none of that general power of attaching in England which existed in Scotland; and, therefore, if a man, having committed a breach of contract in England, resided in Scotland, he would have to be sued in Scotland. The matter was, therefore, not quite so simple as the hon. Member for Glasgow would suggest. This was a delicate matter to deal with; but he did not think it was at all impossible to arrive at some fair adjustment of the relative jurisdictions of the two countries, by a modification of the Rules. To the extent to which the Bill went, the Government could not assent to it; but, to some extent, they would be prepared to assent to it, and he thought it probable that all that was required could be done by a modification of the existing Rules.


said, that with all his hon. and learned Friend the Solicitor General (Sir Farrer Herschell) had stated with regard to the technicalities of the existing Rules relating to jurisdiction of the Courts as to Scotchmen, he entirely agreed. The general rule on which they proceeded in the North, was that of the plaintiff following the place of the defendant, and, on the whole, they believed that was the more rational mode of procedure. It was this Rule which, in their judgment, had been largely infringed by the Rules of procedure of 1875. There was this great peculiarity about these Rules—that they were laid on the Table of Parliament without any discussion, and without having been observed, so that their existence had only come to be known by cases which, unhappily, were cases of great hardship, and which went on increasing down to the present time. There had, consequently, been a very strong and just feeling on the subject raised in Scotland. It was quite true, as his hon. and learned Friend had stated, that he (the Lord Advocate) had been in communication with the noble and learned Earl the Lord Chancellor, with the view of obtaining a modification of the existing Rules, so as to obviate the grievance which was complained of; and he was very hopeful that these negociations might be successful. He did not understand that his hon. and learned Friend disputed that there was a great deal in the Bill which was deserving of fair consideration, and that such modifications as were necessary to meet the case might be made in Committee. He was willing to admit that the Bill, in some respects, did go too far; but that would be a matter easily modified. And he thought that, possibly, one way of dealing with the subject would be to agree to the second reading, subject to the understanding that the Committee stage would be taken only at the end of such an interval as would enable them to see whether there would be success in regard to the communications as to the Rules of procedure that had been going on; and that any modifications, necessary to bring the Bill into consistency with the common principles of jurisprudence, would be adopted.


said, it was not altogether satisfactory to Scotch Members that a matter of this kind should be dealt with by negotiations between the right hon. and learned Lord Advocate and the noble and learned Earl the Lord Chancellor. It was not merely a question as to what was the best system of law adopted in the two countries; but the question was, whether the English Courts should have jurisdiction, by virtue of certain Rules made by Judges? Several attempts had been made in Parliament to obtain for England that jurisdiction they had subsequently acquired; but they had failed through the exertion of the Scotch Members. The Scotch people were, naturally, somewhat outraged in their feelings, that jurisdiction, which had been refused to the English Courts by Parliament, had subsequently been obtained in a somewhat unfair manner. It was satisfactory to know that the Rules were to be reconsidered; but he (Mr. Arthur Elliot) should like to see the jurisdiction of the Scotch Courts rest upon Act of Parliament, rather than upon any agreement with the noble and learned Lord Chancellor.


said, he thought the House was in a somewhat peculiar position in respect to this Bill. They had heard from the right hon. and learned Lord Advocate an expression of one opinion; but they heard from the hon. and learned Solicitor General for England a very different opinion. He (Mr. Cochran-Patrick) could not make out whether the Government proposed to assent to the second reading of the Bill, on the understanding that there should be a certain interval before going into Committee, or whether they proposed to oppose the Bill. It would be satisfactory to the House to have a distinct expression of opinion from Her Majesty's Government as to what they proposed to do. If there should be any doubt about the matter, and they went to a division, he should have no hesitation in supporting the second reading of the Bill. The Bill carried out what was deemed—as the right hon. and learned Lord Advocate had properly put it—the law of Scotland. The law of Scotland was secured to that country by the Treaty of Union explicitly. It was confirmed in 1852, in 1854, and in 1873, and still more explicitly in the very year in which that privilege, to a certain extent, was lost. In 1875, when the exemption was proposed to be taken away from Scotland, it was deliberately refused by the House. It was afterwards brought in by means of Rules, the scope of which was not understood or thoroughly appreciated by Scotch Members at the time, or, undoubtedly, they would have received considerable opposition. He hoped the Government would give a clear and decided expression of their opinion, and that the Bill might be allowed to be read a second time.


said, that the House was placed in rather a remarkable position; for they had two Law Officers of the Crown, he would not say virtually contradicting each other, but taking a different line to each other. He understood the hon. and learned Solicitor General was opposed to the second reading of the Bill.


said, he never said anything of the kind. His right hon. Friend opposite (Sir R. Assheton Cross) asked him what negotiations had been going on; and what he said was, he thought there was a good deal in the Bill that was perfectly right, but he thought the Bill went a great deal too far, and he understood his right hon. and learned Friend near him (the Lord Advocate) also to say it went too far.


said, he did not say that his right hon. and learned Friend (the Lord Advocate) had said that he (the Solicitor General) was opposed to the Bill; but what he said was, that he understood him to be opposed to the second reading, and he now understood him to be opposed to the second reading. Then his right hon. and learned Friend rose, and said his views differed somewhat from those taken by the hon. and learned Solicitor General, and he proposed, as he (Mr. Horace Davey) understood, to support the second reading of the Bill. He supposed that if the Government intended to support the second reading, it would be of no use dividing upon the question; but if the right hon. Gentleman the Member for South - West Lancashire persevered in his Motion, lie (Mr. Horace Davey) should certainly support it. He did not think that this was a Bill which ought to receive second reading, and he would tell the House shortly why. The only case in which a person resident in Scotland, out of the jurisdiction of the High Court of England, had to serve a process in an English Court, was where the contract in which the action was brought was made in England, or where the breach of the contract was in England, or where the property in respect of which the action was brought was in England. What hardship was there in a gentleman resident in Scotland—not necessarily a Scotchman—being sued in an English Court for the breach of a contract? What hardship was there in that? If this Bill were read a second time, it would be perfectly impossible, if a person committed a breach of contract in Carlisle, to sue him in England, if he chose to go across the Border. If there was a grievance, he should be glad to remedy it; but he thought the House was entitled to a little more explicit statement as to what the grievance was, before it was asked to pass a Bill of this character, which he (Mr. Horace Davey) thought would create a great change in the procedure of English Courts. He did not think it was satisfactory that a Bill professing the principle of this Bill should be passed by the House at that hour of the morning (1.15), without a more explicit statement of the grievance which it was intended to remedy than he had yet heard.


said, he thought the hon. and learned Member who had just spoken (Mr. Horace Davey) misunderstood the position of the right hon. and learned Lord Advocate and the hon. and learned Solicitor General. They were both agreed. They both agreed on this, that the existing state of things that had arisen on all sides had altered the condition of people in Scotland to their disadvantage, and that this was a thing that ought to be remedied. As he understood it, a man whose business and trans- actions happened to be in Scotland, might be brought to have his case tried in England, simply because a letter or two might have passed in England with reference to the matter. That, certainly, was not a convenient state of things, and it was one that ought to be remedied. That being clearly understood, the only question was whether this Bill remedied it. He understood that both his right hon. and learned Friend the Lord Advocate and the hon. and learned Solicitor General agreed with the hon. and learned Gentleman the Member for Christchurch that the Bill went too far, and that it made provisions in the matter which the grievance hardly warranted. He thought everybody was agreed that it was proper that this evil should be dealt with by Bill, and lie thought a reasonable course would be to give a second reading to the Bill, and then have a postponement of the Committee stage until the matter had been duly examined, and it had been ascertained what form the Bill should take.


said, he fully approved of the view taken by the hon. and learned Member for Christchurch (Mr. Horace Davey). He (Mr. Whitley) represented purely commercial interests, and he could assure the Government that this Bill would very seriously affect the commercial interests of the country. There was no doubt whatever that the cause of the alteration of the law, or of the Rules of procedure, was that, in the past, great injustice had been done. It became a question whether the debtor was to seek the creditor or the creditor was to seek the debtor. He thought it was a hard case that, if a debt was contracted in London, or Manchester, or Liverpool, and the debtor went to Scotland, the creditor must be told, when the debt became payable, that he must go to Scotland and sue in a Scotch Court. As a matter of fact, hundreds of pounds were lost by mercantile men in Liverpool and other places, rather than they would go to the Scotch Courts. He must confess he had not been aware that there was such a great distinction between the Scotch and the English law; but he did think that they should all agree that the real principle of justice was that, wherever a debt was contracted, in that place the money should be paid. He believed the present law had worked well and greatly to the satisfaction of the country. ["No, no!"] He was speaking for the commercial bodies of the country; and, although hon. Members said "No! no," ho maintained that he was correct; at any rate, he should like to see some Representative of the commercial interests get up and say that he thought the principles of this measure could be maintained. He very much regretted that it was not in the power of those who thought with himself to go against the concentrated force of the Scotch Members and the Government in this matter. For his own part, he was strongly opposed to the principles of the measure, and was satisfied that throughout England very strong opposition would be entered against it. He believed that if this measure were passed, there would be throughout the country such an expression of opinion against it, that the Government would be compelled to listen to it. If the right hon. Gentleman the Member for South-West Lancashire (Sir R. Assheton Cross) divided the House against the Bill, he (Mr. Whitley) should certainly go with him.


said, he had no right to speak again except by the permission of the House; but, after the statement they had had from the Secretary of State for the Home Department (Sir William Harcourt)—if he properly understood it—he did not think it would be advisable for him to press his Motion to a division. What he had wanted to get from the Government was an understanding that they would assume the responsibility of this measure, and put it in a proper form. It was clear from the statements of the right hon. and learned Lord Advocate and the hon. and learned Gentleman the Solicitor General, that there was some diversity of opinion upon the subject; but, if he understood the Government aright, there was to be an assimilation of the law, and the laws of the two countries were to be placed upon an equal footing. If the hon. Member in charge of the Bill (Mr. Anderson) would postpone the Committee stage, in order to enable the Government to place on the Paper Amendments which would carry out their views, he should be willing to withdraw his Motion.


said, he did not know anything about the Government placing Amendments on the Paper. What he had said was, that they could not support the measure, unless they were satisfied that it was a proper one, and would carry out satisfactorily the views they entertained upon the subject.


said, it was understood that the evils to which the right hon. Gentleman had distinctly alluded should be dealt with in this Bill. The Bill should not be allowed to pass without the law in both countries being placed on the same footing. It was perfectly impossible to maintain a difference in principle between contracts in one country and contracts in another; therefore, if this Bill was accepted by the House, it should be distinctly understood that the Government would see that Amendments were introduced into it which would place the position of mercantile classes, both in England and Scotland, on precisely the same footing.


said, that what the Scotch Members desired was, that prosecutions of every kind should be placed in the same position, so far as Scotland was concerned, that they were in before the passing of the Judicature Act. If there was anything in the measure that was opposed to the interests of Englishmen, and their fair and just claims as regarded liberty of prosecuting in Scotland, it was quite understood, ho should think, after what had fallen from the hon. and learned Gentleman who had spoken from the Front Ministerial Bench (the Solicitor General), that these things would be modified. They might rely upon it that the law would be so altered as to place them in the position in which they were before the passing of the Judicature Act of 1875. A complaint had been made by an hon. and learned Gentleman who spoke below the Gangway (Mr. Horace Davey), that the hon. Member for Glasgow (Mr. Anderson) had given no sufficient exposition of the grievances of which they had just cause to complain; but the truth was, that that hon. Gentleman desired to save the time of the House, and, therefore, made a much shorter statement than he otherwise would have done. The right hon. Gentleman opposite (Sir R. Assheton Cross), who had always been favourable to the fair consideration of Scottish claims, would, he trusted, withdraw his Amendment to the Motion for the second reading; and he was certain that the hon. Member for Glasgow would then, at once, agree to the proposal that the Committee stage of the measure should be postponed for such a period as to give adequate time for the consideration of any negotiations that the right hon. and learned Lord Advocate might be engaged in at the present moment with the noble and learned Earl the Lord Chancellor. The Scottish Members desired that the rights of their countrymen should be secured to them by the State—rights that were secured to them originally by the Act of Union. These rights must not be infringed, unless there were some cause for it; and of such cause, in the present case, he had not heard an explanation.


said, he was inclined to agree that there was a grievance in this matter; but the cases were few in number, and he thought that the English Members had a right to claim reciprocity. If the Scotch Members wished to clip the wings of the English Courts, the House had a right to say that the somewhat antiquated methods of founding jurisdiction which obtained in Scotland should be curtailed. Primâ facie, this Bill would appear to enable a person to come across the Border from Scotland, to stop a fortnight in this country, and re-cross the Border without paying his hotel bill.


said, the hon. and learned Member opposite (Mr. Stuart-Wortloy) had expressed doubt whether there could be more than a very few cases of the application of the Rule of 1875 similar to that which had been stated by the right hon. Gentleman the Secretary of State for the Home Department; but he (Mr. Dick-Peddie) could assure the hon. and learned Gentleman that there were very many cases of almost exactly the same kind. A statement had been drawn up by the principal legal Bodies in Scotland, in which many illustrative cases were given; and it would be found that, in many instances, these resembled the example given by the Secretary of State. From the Return laid on the Table last year, which he (Mr. Dick-Peddie) had moved for, he found that there were about 120 cases in 1881 in which writs of summons had been served on persons in Scotland; and the House would easily understand how serious the grievance must be if any material number of these cases were of the kind described by the Home Secretary. The hon. Member for Liverpool (Mr. Whitley) had stated that the working of the Rules had given universal satisfaction to the mercantile classes of England. He (Mr. Dick-Peddie) had no doubt that it bad done so, for the mercantile classes of England had had it all their own way; but he suspected that, were a similar right to that conferred by the Rules on the English Courts with reference to Scotland conferred on the Scotch Courts with reference to England, the satisfaction of the mercantile classes in England would soon undergo some diminution. He might remind the House that when the Rules were first adopted in 1875, they gave the English Courts the same rights over persons in Ireland as over persons in Scotland; but the Irish Members took up the matter so warmly that, in order to pacify them, a similar power was given to the Irish Courts to that conferred on the English Courts, so that Ireland now enjoyed reciprocity in that matter. It had been stated that Scotchmen had very little right to complain in this case, because the Scotch Courts had always claimed those rights of arrestment which had been described in the debate. If those rights were unreasonable, and the cause of just complaint on the part of Englishmen, then the proper way was to deal with them by direct legislation; but it was unreasonable that a jurisdiction which had belonged to Scottish Courts from time immemorial should be mot by Rules not embodied in an Act of Parliament, but drawn up by English Judges and appended to an Act, and the effect of which was not submitted to, or, at least, not considered by, the House. There could be little doubt that these Rules were adopted by the English Judges as a set-off against the rights exercised by the Scotch Courts, which had been so strongly commented on. The grievance was one which was very deeply felt in Scotland. The position of the Scottish people had been seriously altered by the Rules appended to the English Act, the provisions of which had never been brought before the Scottish people, and the operation of which had been of a serious nature. The Return which he had obtained showed that between the 1st March, 1877, and the 1st March, 1881, writs of summons were served on defendants in Scotland in 420 cases, and proceedings under the Rules were constantly taking place, and he believed in a constantly increasing ratio. Strong representations had been again and again made on the subject by persons representing the Scotch public. About a year ago a very influential deputation waited upon the right hon. and learned Gentleman the Lord Advocate and the Earl of Rosebery, and received a promise of redress. From time to time Questions had been put in the House on the subject, but nothing had teen done; and, meanwhile, now cases of injustice were going on under these Rules at the rate of upwards of two a-week. It was most important, therefore, that there should be no delay in the passing of such a measure as that of his hon. Friend the Member for Glasgow (Mr. Anderson), or in carrying out the long-promised modification of the Rules, so as to remove a just cause of complaint by the people of Scotland.


said, he had to complain that legislation by Judges, instead of by Act of Parliament, took place too often. There was an increasing disposition on the part of Ministers to bring in numbers of Bills, in which clauses could be inserted by anybody, by the Board of Trade, by the Judges, or by anyone, provided they were laid on the Table, and submitted to Parliament, a proceeding which, in reality, was nothing but a farce. The question under discussion was one as to the rights of an ancient Kingdom, a country which, although closely united to us, was, in the eyes of the law, a foreign country. The question was, whether the rights of these people should be taken away by some English Judges, under certain Rules which had never been considered by Parliament. He did not wish to say much about the law, and the right hon. Gentleman the Member for Westminster (Mr. W. H. Smith) had spoken sound common sense on the subject.


said, he understood that the hon. Member for Glasgow (Mr. Anderson) assented to the postponement of the Committee stage of the Bill for a fortnight, and that before that stage took place they would, at all events, have the result of the conference between the right hon. and learned Lord Advocate and the noble and learned Earl the Lord Chancellor. On that un- derstanding, he would withdraw his Amendment.

Amendment, by leave, withdrawn.

Main Question put, and agreed to.

Bill read a second time, and committed for Tuesday 26th June.