§ Order for Second Reading, read.
§ THE LORD ADVOCATE (Mr. J. H. A. MACDONALD) (Edinburgh and St. Andrew's Universities), in moving that the Bill be now read a second time, said, they had had a meeting of Scottish Members, at which he stated the grounds for bringing forward the measure. But he did not feel he would be justified in doing otherwise than make a distinct statement to the House on the matter. About 18 months ago, the then Sheriff of Lanarkshire (Sheriff Clark) became so ill as not to be able to attend to the duties of his office, and it became necessary that an interim Sheriff should be appointed. It was his duty, as adviser of the Home Secretary on these matters, to pick out the best man he could find to till the office of Sheriff in the absence of Sheriff Clark. The Sheriffship of Lanarkshire was a very difficult office to till. The duties were so onerous and so extensive, and involved the necessity of getting a man of such experience, and also a man who could live on the spot, that the post of interim Sheriff was not an easy one to fill. After full consideration he was satisfied that, from his personal qualifications, and also from the fact that he was resident in Lanarkshire, and that his position as Professor of Scottish Law in Glasgow University afforded him the best opportunity of keeping himself well informed on legal subjects, and from the knowledge he (Mr. J. H. A. Macdonald) had that Professor Berry's skill in the law was such that he was very largely employed by the mercantile community of Glasgow 1898 in questions of mercantile law—on all these grounds he was satisfied that Professor Berry was the most suitable man whom he could have selected for the position of interim Sheriff. He had no reason to doubt that the appointment gave the most perfect satisfaction to the community. About the propriety of Mr. Berry's appointment as interim Sheriff there could be no question whatever, because he complied with all the requirements of the office, and was, therefore, perfectly well qualified. The Act of Parliament specified that in the case of a person to be appointed Sheriff of a county during the leave of absence of any Sheriff who was unable to perform his duties from illness, the qualification necessary was that he should be an advocate of not less than five years' standing. It unfortunately happened that while Professor Berry was fulfilling the duties of interim Sheriff of Lanarkshire Sheriff Clark died. It then became necessary to consider who was to be appointed to fill his place. He saw nothing to lead him to any other conclusion than that Sheriff Perry was the most suitable man for the post, and the manner in which he had fulfilled his duties as interim Sheriff had given the greatest satisfaction. [An hon. MEMBER: For how long?] He thought it was three months. He accordingly nominated Sheriff Berry for the appointment of Sheriff, and he was duly appointed. In doing so, he had to admit that he did not advert to an old Act of Parliament passed in the first year of Her Majesty's Reign; and he believed no one else had their attention called to it in any way until within the last month or so. That Act was the Act of 1 & 2 Vict. c. 19, which specified that the person to be appointed Sheriff of a county should not only be an advocate of a certain number of years' standing, but should also be in attendance and in practice at the Bar in Edinburgh. Now, that was a mistake for which he (Mr. J. H. A. Macdonald), and he alone, was responsible; and he must, and would, take the full responsibility for it on himself. As regards Professor Berry, this mistake placed him in this position—that he had been required by the Lord Advocate's stipulation to give up the valuable appointment of Professor of Law previously held by him in Glasgow University before he could be appointed Sheriff. Now, 1899 the position of Professor of Scotch Law in Glasgow University was peculiar and unique in this respect—that while the Professors of Scotch Law in Edinburgh University—the only other Professor of Scotch Law in Scotland teaching the law regularly—were perfectly eligible, even under the Act 1 & 2 Vict., for the Sheriffship of a county, because they can be in attendance at the Court, their Professorship requiring them to be resident in Edinburgh, they were able at any time to put on wig and gown and go down to the Court; in point of fact, they had the case of gentlemen holding the appointments of Professors of Civil Law and Scotch Law in Edinburgh University, and also holding each of them a Sheriffship, for these two things were not held incompatible except in the case of the Sheriffships of Lanarkshire and Edinburgh, the Sheriffs of which places were required to devote their whole time to the discharge of the duties of their appointments. Therefore, Professor Berry's position was so far unique that he was under the Statute referred to shut out from that which other Professors of Law might aspire to, and his appointment as Sheriff of Lanarkshire now required confirmation. He (Mr. J. H. A. Macdonald) had looked very carefully into the matter, and he was of opinion that a great deal might be said on the point whether his appointment as interim Sheriff did not, in point of fact, constitute Professor Berry actually a Sheriff; but he would not play upon that point, as he was not sufficiently clear upon it, being sure that the inconvenient results following from the Statute had not been intended by its promoters, and that it was not intended to exclude men from positions which their training and their constant work at the law and their residence among a mercantile community, and their consequent experience in dealing with cases of mercantile law fitted them for. Convinced that it was not the intention of the framers of the barring Statute to exclude such men from the positions for which they would thus become peculiarly qualified, he would ask the House to agree with him that the objection to Professor Berry's appointment was merely a technical one; that in selecting Professor Berry for the appointment he had chosen a thoroughly fit and qualified man for the discharge of the important duties of the office; and 1900 he would, therefore, ask the House to give the Bill a second reading for the purpose of confirming the appointment.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(The Lord Advocate.)
§ MR. ANDERSON (Elgin and Nairn)said, that, to his mind, what the right hon. and learned Lord Advocate chose to call a mere technical point raised a question of very great importance, because this Bill, which had only been delivered to them yesterday morning, sought to repeal the clear and distinct provisions of the Act of 1 & 2 Vict., as far as Mr. Berry was concerned. He was rather surprised to hear a Statute of the Queen called by a Law Officer of the Crown "an old Act." To his mind, it did not come under that category. It was not proposed to repeal the Act, or alter it generally; but it was proposed, by ex post facto legislation, virtually to repeal it so far as this gentleman was concerned. He had made considerable search into the subject, and was unable to find any precedent for the present proposal. He had listened with some attention to the right hon. and learned Lord Advocate, and was anxious to hear whether there was any precedent for such; and he was sure the House, before it acted on data of that kind, would expect to be furnished with precedents. The qualifications for the office of Sheriff had been inserted by the Legislature for the express purpose of preventing improper appointments. The Act of 1 Vict, provided that a gentleman must be in actual practice for three years in the Court of Session, or he must be a Sheriff-Substitute; and it did seem a strange thing that the Bill sought to set aside those provisions. The right hon. and learned Lord Advocate was anxious to take all the blame upon himself for the error which made the Bill necessary. He (Mr. Anderson) was bound to say that for the right hon. and learned Lord Advocate, who had the disposition of those important legal posts, to confess that he was in ignorance of the qualifications required was a most astonishing thing. But the Lord Advocate was not the only person consulted in those matters. There was the Solicitor General for Scotland, and the Lord Advocate's Law Secretary, who received £600 a-year for the purpose, he sup- 1901 posed, of keeping the Lord Advocate posted up in law; and was it conceivable that everyone in the Lord Advocate's Office was so supremely ignorant of this modern Act of Parliament? He did not think the statement of the right hon. and learned Lord Advocate was altogether satisfactory. He could not accept the statement that the appointment was made in ignorance. It was surely strange that the gentleman himself did not know. There were suspicious circumstances about the case which ought to be further investigated. Everybody knew that in Scotland the persons who looked forward to such appointments were the Sheriff-Substitutes. In Lanarkshire there were three or four persons of great experience, eminently fitted to fill the office, and who, in the ordinary course, looked to getting the offer of such appointments. The Legislature, in passing the Act, distinctly considered that Sheriff-Substitutes should have the appointment, because the section went on to say the gentleman appointed as Sheriff should be a barrister of three years' practice or a Sheriff Substitute, showing that it was contemplated that the proper persons to have the appointments were the Sheriff-Substitutes. There were several gentlemen of great experience, who had not merely acted for three months as interim Sheriff, but who were looked up to with great confidence, and who were admirably fitted for the post. It did seem extraordinary that they should have been passed over and a gentleman of three months' judicial experience selected. Well, people would say uncharitable things even of a Conservative Government. He was not imputing any corrupt motives to the right hon. and learned Lord Advocate; but people had the idea that when it turned out that the gentleman who got the appointment was a member of the Conservative Party, while those well fitted for the post were not of the same political creed, the political feeling might have something to do with the appointment. This was a matter which bore rather a serious aspect for the Government. It was not a local question, but a legal question, which had a much wider bearing than as affecting Lanarkshire alone. It was unfortunate as affecting the filling up of the whole of the judicial offices in the country. When the right hon. Gentleman the Member for Mid Lothian (Mr. 1902 W. E. Gladstone) made Sir Robert Collier a Member of the Judicial Committee of the Privy Council, without breaking the terms of any Act of Parliament, by first appointing Sir Robert a Judge of the Queen's Bench Division for a week, the Conservative Party raised long debates on the appointment, and the right hon. Gentleman and the Liberal Party were denounced for a base attack against the administration of justice. He hoped the right hon. Gentleman the First Lord of the Treasury (Mr. W. H. Smith) and other hon. Gentlemen who took part in the denunciation would follow a similar course on the present occasion, for this was a very much stronger case. In Sir Robert Collier's appointment the Act of Parliament was complied with; but in the appointment of Mr. Berry it had been violated. In the absence of any precedent, the House ought not to countenance such a proceeding by passing the Bill. It was said not to pass the Bill would be a great injustice to Mr. Berry. Well, someone must suffer. But he had no doubt means could be found to give Mr. Berry an opportunity of following the profession for which he was so eminently qualified. But he did not think they should be led away by considerations of this kind into making such a precedent as was proposed by the Bill. The right hon. and learned Lord Advocate said Mr. Berry was a gentleman well fitted for the post. So was Sir Robert Collier. But that ought not to be taken into consideration in dealing with a question of this kind. The question was—Would the House be justified in sanctioning an ex post facto repeal of an Act of Parliament? He (Mr. Anderson), for one, would give this Bill his most determined opposition, and he begged to move that the Bill be read a second time that day three months.
SIR GEORGE CAMPBELL&c.) (Kirkcaldy,, in seconding the Amendment, said, he earnestly and strongly protested against the way in which this purely personal Bill had been placed before very important general Bills, so that they must either pass this Bill or run the risk of losing other important Scotch Bills which stood after it upon the Paper. That was a course altogether unjustifiable. As regarded the merits of the Bill, its Preamble was not justified, because it began with the phrase "doubts having arisen." There 1903 were not, nor could there be, any doubts about the illegality of the appointment. He did not doubt the good faith of the right hon. and learned Gentleman the Lord Advocate; but he was exceedingly surprised that a man in his position should have been so ignorant of the law regulating the appointment of Sheriffs. As a mere lay Scotsman, he (Sir George Campbell) was cognizant of the fact that the appointment of Sheriff was restricted to members in actual practice at the Bar or to Sheriff-Substitutes. In fact, he knew that, as a lay boy, 50 years ago. He did not attach much importance, as a rule, to letters in the newspapers; but an important letter had appeared from a Sheriff-Substitute in Glasgow, who said he had no personal interest in the matter, as he was an old Sheriff-Substitute, and did not look for promotion; but in the interest of his class he protested against Mr. Berry's appointment, and against an ex post facto Bill brought in at the end of a Session to repeal an Act of Parliament. He (Sir George Campbell) thought there was very great justice in the complaint. He looked upon the Sheriff-Substitutes as an ill-treated class. They were the most important class of judicial officers in Scotland. They did nine-tenths of the judicial work in Scotland. They were not very highly paid; and it seemed to him the only reason why a man of talent and ability should occupy the position of Sheriff-Substitute was that there was promotion open to him in his own service. It had been too often the ease that the Sheriff-Substitutes were passed over, and the appointment as Principals given to gentlemen practising at the Bar. But if they were to go beyond the leading members at the Bar, they were, in his opinion, bound to do justice to the claims of the Sheriff-Substitutes, and hence he protested against the Bill. It might be said a mistake had been made, and the Bill was requisite to legalize the decisions of Sheriff Berry; but the Sheriff-Substitute, to whose letter he had referred, expressed the opinion, as a judicial officer, that acts done by Sheriff Berry were not illegal and did not require a Bill. All that that Bill would do was to justify and perpetuate this illegal appointment. If it were necessary to legalize the decisions come to by Sheriff Berry, he was quite willing to 1904 agree to the passing of the Bill; but to go beyond that, and legalize this illegal appointment, was a measure which he felt himself bound strenuously to oppose. As a matter of public justice and in the interest of the country he hoped that the House would refuse to pass the Bill. He repeated that he not only opposed the Bill on its merits, but also protested against its being put before the Secretary for Scotland Bill and the Technical Education Bill. He begged to second the Amendment.
§ Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day three months."—(Mr. Anderson.)
§ Question proposed, "That the word 'now' stand part of the Question."
MR. S. WILLIAMSON&c.) (Kilmarnock,said, his first impulse had been to assist the right hon. and learned Gentleman the Lord Advocate (Mr. J. H. A. Macdonald), whose geniality and courtesy they all appreciated very much, out of this dilemma; but he was now compelled to support the Amendment, and that very much because of a letter which had appeared in the public prints, signed by Sheriff Guthrie—a man of great capacity and of much more experience in the administration of the law than Professor Berry. Sheriff Guthrie, in that letter, said—and he was sure Sheriff Guthrie would not say anything which he did not believe—that Mr. Berry had no special or peculiar fitness for the office. In the second place, he pointed out that the appointment had been made from political considerations; and, in the third place—and this was a very important branch of the statement—he said that Sheriffs-Substitute had been refused increase of salaries. For what reason? Because of the likelihood there was of their being made Sheriffs - Principal. Now, he (Mr. S. Williamson) thought that by such action as this they did these Substitutes, especially the very able men among them—as Sheriff Guthrie was—a very great injury, wrong, and injustice; and on these grounds he was bound, however anxious he might be to assist the right hon. and learned Lord Advocate out of this dilemma, to support the Amendment.
MR. ASHER&c.) (Elgin,said, the circumstances under which the Bill was 1905 introduced furnished large material for pungent and severe criticism. But he thought there must be a general agreement that the statement of his right hon. and learned Friend the Lord Advocate (Mr. J. H. A. Macdonald) was not wanting at least in frankness, because he had very candidly taken upon himself the entire responsibility for this occurrence, and had very distinctly stated that it was a pure oversight or mistake. He could not, therefore, agree with the hon. and learned Member for Elgin and Nairn (Mr. Anderson), who had expressed a disinclination to accept that explanation. He (Mr. Asher) accepted it fully; but, at the same time, there were certain matters in connection with this appointment which he thought it was necessary to keep in view. In the first place, it should be clearly understood that there was a statutory qualification for the office, and it was that the person appointed should either be in practice before or in habitual attendance upon the Supreme Court in Scotland. His right hon. and learned Friend raised a question as to whether the appointment of Professor Berry as a temporary occupant of this office did not, to some extent, put upon him a qualification for it which he would not otherwise have had. He entirely dissented from that view. He did not in any way sympathize with the view that Professor Berry was to any extent qualified for the receipt of this appointment through the fact that he had for a short time been appointed to assist the late Sheriff Clark. He thought it would be a clear and direct evasion of the Statute to take a person who was not qualified to put him in temporarily for a short time, and then to promote him to the vacant office. It was perfectly clear that there was a distinct statutory qualification necessary; and he thought it was equally clear that Professor Berry had not that qualification. The result of that was a somewhat serious situation. The result of it was that with reference to an important public appointment in Scotland, with regard to which the Legislature had enacted that only persons qualified in a particular way could be appointed, the Executive had, in breach of the Statute, appointed a nonqualified person. He should be the very last person to any extent to minimize the serious character of such an act on the part of the Executive. He must also dissent from the view of his right hon. 1906 and learned Friend that this was a matter as to which there was not a general knowledge, and that it was embodied in an ancient Statute. He could not say that it was an ancient Statute that embodied this rule. It was the 2nd section of the leading Act regulating the constitution of the Sheriffs' Courts in Scotland, and it was contained in the section which proscribed the duties to be performed by the Sheriffs-Principal in Scotland; and, therefore, it was a section with which all judicial officers in Scotland must be held to be familiar. He would go further, and say that it was a matter of general knowledge. At the same time, he quite acknowledged that this matter had not occurred to anyone until quite recently; but, then, there was a difference between the non-occurrence of a point of this kind to a person who had not the duty of considering it, and the failure to take note of it on the part of those whoso minds were particularly directed to it. On all those points, therefore, he was bound to say it seemed to him the Bill raised a question of very considerable importance. But the practical question which remained was this—Was the House to take a step, or was it not, which would have the effect of compelling Professor Berry, who was at the present moment acting Sheriff of Lanarkshire, to vacate that office? Of course, now that the Bill had been presented to the House, and doubt had been cast upon Sheriff Berry's title to discharge his judicial functions in Lanarkshire, it was quite impossible that he could continue to hold office if the House should decline to pass the Bill. Therefore, with all the considerations in his mind to which he had adverted, he was bound to say, interested as he was in the administration of law and justice in Scotland, he preferred to put all considerations aside in connection with a Bill of this kind in favour of what he believed to be best for the interests of Lanarkshire. There was one part of the statement of his right hon. and learned Friend the Lord Advocate to which he was glad to give his concurrence. He thought the rule as to the definition of the qualification of Sheriff was a sound rule, and he did not understand the Lord Advocate to suggest the contrary. The Lord Advocate did not propose any general alteration of the law, as the rule was a sound one, and ought to be maintained; but there were 1907 exceptions to all rules, and he was glad to state publicly his conviction that, apart from the question of want of statutory qualification, Professor Berry was a perfectly suitable person to appoint Sheriff of Lanarkshire. He had been a member of the Scottish Bar of some standing. He had practised for a considerable time. He had been appointed Professor of Law at Glasgow, and had ably discharged the duties of his Chair. And his legal qualifications were so appreciated by the commercial community in Glasgow that he had been repeatedly appointed to act as arbiter in important disputed cases. The particular qualification which he wanted was that he was not in habitual attendance upon the Supreme Court. Now, he (Mr. Asher) was bound to admit that the statutory qualification would be satisfied by a counsel being in attendance upon the Court, although he might not have a very large practice; because there was nothing in the Act which said that the person to be appointed should hold a certain number, or any, briefs. If he was in attendance on the Court waiting for briefs, he should be bound to hold that he had the statutory qualification. In the general case, it was extremely desirable that persons appointed to these important judicial offices should be persons who, up to the date of their appointment, had been constitutionally in touch with the administration of the law in the Supreme Court, or that they should themselves be discharging judicial functions as Sheriffs-Substitute in Scotland, He did not know that the appointment was justified in this sense that there was any scarcity of perfectly suitable men. He had no hesitation in saying that in the ranks of the Sheriffs-Substitute or of practising advocates perfectly eligible men could be found; but still Professor Berry, he was bound to admit, had, in his judgment, qualifications fitting him for the performance of the duties of the office. He had resigned his Chair under a misapprehension. He (Mr. Asher) was sure, for he was convinced, that had it occurred to the Professor that he was disqualified, he would have brought it to the notice of the right hon. and learned Lord Advocate. He (Mr. Asher) believed there had been a joint mistake between the right hon. and learned Lord Advocate and Professor Berry in that 1908 matter. Professor Berry had resigned his Chair. He was discharging the duties of Sheriff, and doing so, so far as lie could hear, to the satisfaction of the community amongst whom he was placed; and the practical question, therefore, was—Was the House to take advantage of a technical mistake—he admitted a very grave mistake—for the purpose of producing all the confusion which would result, and the hardship which, he thought, would result in the ease of Professor Berry—in compelling him to vacate this office, and without probably doing anything to improve the administration of law and justice in Lanarkshire? Looking at the matter as a practical man, and in the interest of the administration of law and justice in Lanarkshire, he thought it was most important that the House should, in the course of that debate, place on record its sense of the absolute importance of the Executive regulating their procedure strictly by the law in regard to all these appointments. But, directing his attention to this particular case, he confessed his opinion was that the most expedient thing, in all the circumstances, was to do what they could to rectify this mistake, and to allow Professor Berry to continue to discharge the duties of Sheriff of Lanarkshire.
§ DR. CAMERON (Glasgow, College)said, as one of the Members representing the constituency which was most concerned in this matter he would like to say a word or two. Professor Berry was a Conservative, and consequently a political opponent of his own, and therefore he had no reason to condone any political job in favour of Professor Berry if he believed that anything of the sort had been perpetrated; but he was perfectly certain that nothing of the sort had been perpetrated. His hon. Friend the Member for Kilmarnock (Mr. S. Williamson) had spoken of suspicious circumstances, and had quoted a letter from Sheriff Guthrie. But surely, if a political job were to have been perpetrated in connection with this appointment, it would hardly have been attempted in a case that could afterwards be attacked on legal grounds. There were plenty of Tory briefless barristers in Parliament House, any one of whom might have been selected for political reasons, and set up as a Judge in Lanarkshire. There was no necessity to go to the Professor 1909 of Law in Glasgow University if a job were to be perpetrated. He was entirely in favour of appointing Sheriff-Substitutes to the Office of Sheriff-Principal; but he wished, in all fairness to the Government, to explain why in this particular case such an appointment could not well have been made. First, however, he would point out that the intention of Parliament that a Sheriff-Substitute should always be appointed Sheriff-Principal as a vacancy occurred was by no means so clear as some of his hon. Friends had assumed. Until very recently, if a Sheriff-Principal became ill, it was impossible to provide a temporary substitute for him, and he was obliged to get on with his duties as best he could or be turned adrift. The late Sheriff Bell, when he was Sheriff of Lanarkshire, became seriously ill, and he was obliged to go on with his work to the very last in a way that aggravated his illness and hastened his death. That created a considerable sensation in Scotland at the time. His death occurred shortly before an Election, and great complaints were made against the then Lord Advocate for the way in which Sheriff Bell had been treated. After the Election he (Dr. Cameron) called attention to the defect in the law, and the result was that an Act was passed entitling an interim Sheriff-Principal to be appointed in case the Sheriff-Principal should fall ill. The House was well aware, whenever a private Member introduced a Bill, he was always taunted with the drafting, even although he had gone to a professional draftsman to draft his Bill for him. But when a Government Bill was brought in the drafting, in practice, often proved to be of the worst possible description. It was perfectly evident that one course or other should be pursued with regard to the Act legalizing the appointment of interim Sheriff-Principals. It should either have required from the interim Sheriff-Principal the same qualifications as were required from the permanent Sheriff-Principal, or it should be laid down that a person who acted as interim Sheriff-Principal thereby acquired the same qualification as if he had been Sheriff-Substitute. But the Act did not do that, and had left the matter altogether undecided. The result was that in the present case the right hon. and learned Lord Advocate not unnaturally fell into 1910 the mistake which had been explained to the House. He would point out that it was not only the right, hon. and learned Lord Advocate who fell into the mistake of imagining that there was no legal impediment to Sheriff Berry's appointment. It was said he should have known. Of course he should, but the fact was that none of the Sheriff-Substitutes in Glasgow knew of the impediment, and he was perfectly certain that Sheriff Berry did not know, or he would have taken very good care to have the matter cleared up before he gave up his Professorship. Therefore, if the Lord Advocate was to be twitted with his ignorance on the subject, at all events he shared the ignorance in common with the whole of the Legal Profession, even in common with the learned "lay boy" (Sir George Campbell), who, if he had had anything but a very hazy and ex post facto knowedge of the subject, would surely not have failed to put a Question to the Government about it some months ago. As he had said, he was entirely in favour of Sheriffs-Substitute being promoted to be Sheriffs-Principal. It stimulated good men to take the minor appointments. But it was necessary to explain why such a promotion could not have been made in this case. It had been said that it was the course always pursued in the Courts of Glasgow; but that was not so. The first time it was done was in the case of Sheriff Bell, then in the case of Sheriff Dickson, then Sheriff Clark—these all being Sheriff-Substitutes of Lanarkshire, who were promoted to Principalships when vacancies occurred. But when Sheriff Clark was appointed he was not the senior Substitute, for there was at least one Sheriff-Substitute above him in seniority; but that gentleman gave way, conceding that Sheriff Clark was the fittest man for the appointment; and Sheriff Clark was also recommended to the Home Secretary by the other Sheriff-Substitutes. But on this occasion what occurred? Sheriff Clark's illness was a protracted one, and, with one exception, all the Sheriff-Substitutes in Lanarkshire were applicants, and that fact rendered it impossible that any one of them could be appointed. To his mind the fittest man was the senior Sheriff-Substitute, the gentleman who had previously waived his claim; but his appointment would have given mortal offence to all the 1911 others. Each of them had sent in his claim, backed up by all the influence he could muster, and it was rendered almost impossible to follow the excellent precedent which had been sot by previous appointments. It had boon said that political motives might have actuated the appointment of Sheriff Berry; but he would venture to say that if Sheriff Guthrie, who made that assertion, who was himself an applicant, and who, he believed, made Sheriff Murray's appointment an impossibility, owing to his sending in an application, had been appointed, he would have denounced the appointment as a political job, for the very reason, that Sheriff Guthrie, while Returning Officer at a recent Election in Glasgow, thought it compatible with his position as Sheriff and Returning Officer to allow his name to be used for electioneering purposes against himself and his colleague, Mr. Gilbert Beith. It was also fair to remember that when a vacancy in the Sheriff-Principalship had occurred in Glasgow, it had always been the outcry from the Legal Profession in Glasgow that a local man should be appointed, and they were jealous of the appointment of a man from Edinburgh or elsewhere.
§ SIR GEORGE CAMPBELLThey are all Scotch.
§ DR. CAMERONsaid, he therefore thought they might pass by the appointment without attributing to the Lord Advocate anything worse than an inadvertence and an ignorance of the law which he appeared to have shared with all the Legal Profession in Scotland. As to the question whether Sheriff Berry's appointment should, be legalized, that was a matter with which he did not particularly concern himself. It appeared to him it would be a vindictive thing, when the matter had been allowed to go on for so long, and Sheriff Berry had severed his connection with the University, and dropped the advantage of service which would soon have entitled him to a pension, as well as given up his practice as arbitrator, which, in connection with his Chair, must have been very valuable, to turn him adrift now. If the House chose to do so, that was no matter to him, for Sheriff Berry was not a political supporter or personal friend of his own. Still, he thought it would be fairer and loss invidious to confirm the appointment. But what he was most 1912 concerned about was the passing of a Bill to validate the acts done by Sheriff Berry. That was the most important thing. Whoever was to blame for the appointment, certainly the litigants who had come before him since he was appointed ought not to be punished. It had been stated to the House that Sheriff Guthrie thought it was not necessary to pass an Act for the purpose; but on this point Sheriff Guthrie contradicted himself, because he went on to say—
It is quite certain that no judgment or act of Sheriff Berry can be set aside, or invalidated, until, at least, commission has been solemnly declared to be unlawful in an action, for which it is difficult to find a precedent in Scotland, directed for that purpose against the Lord Advocate himself.Sheriff Guthrie went on to point out that it was not likely that any suitor would raise an action against the Lord Advocate for that purpose; but according to his own showing it was quite on the cards that some disappointed suitor might do so, and the result would be that doubt would be cast upon all the important judgments that had been given during the last year at the Sheriff Court of Lanarkshire. There was no doubt as to the technical meaning of the Statute. He therefore thought that Sheriff Guthrie's own admission showed that there was a necessity for passing an Act validating the judgments of Sheriff Berry while he had held office, and that it was a duty which the Lord Advocate owed to the people of Lanarkshire, for having placed them in a position of any doubt on the subject, that he should take care that that doubt should be removed by legislation.
§ MR. MASON (Lanark, Mid)said, he hoped the discussion would soon be closed, so that they might reach other Bills which were, in his view, of much greater importance, and for that reason he should give his vote in support of the second reading of the Bill. After the frank confession which the right hon. and learned Gentleman the Lord Advocate (Mr. J. H. A. Macdonald) had made of the mistake he had committed in the appointment of Professor Berry to the Sheriffship of Lanarkshire, he thought it would be most ungenerous on the part of the House not to pass the Bill, considering also that Sheriff Berry, who was a political opponent of his, 1913 was doing his work satisfactorily to the general public so far as he could learn. Looking to the fact that Professor Berry had resigned his Professorship, he thought the House would do a very hard thing if it deprived him of his present position by refusing to pass the Bill. He considered that the right hon. and learned Lord Advocate ought to have given the appointment to one of the Sheriffs-Substitute. A Sheriff-Principalship was a prize to which the Sheriffs-Substitute were entitled to look forward. The right hon. and learned Gentleman had been subjected to some very sharp criticism for making the appointment. That criticism, he thought, was quite sufficient, and they ought now to go on to the other Business before them. Supposing the House did not pass this Bill, and the appointment were set aside, what would become of all the decisions given by Sheriff Berry during the past 12 months? He supposed another Bill would be required to validate his decisions, or the mind of everyone who had had a case before Sheriff Berry would be unsettled. He asked the House now to come to a vote on the Bill.
§ MR. J. A. CAMPBELL (Glasgow and Aberdeen Universities)said, that admittedly there had been a mistake in this matter, and others besides the right hon. and learned Lord Advocate must share the blame for not discovering the mistake. Sheriff Berry must take his share; the Sheriff Substitutes—several of whom were candidates for the appointment of Sheriffship—must take theirs; all of them had overlooked the clause in the Act of 1 & 2 Vict, which had been referred to.
§ An hon. MEMBER: And the Home Secretary.
§ MR. J. A. CAMPBELLYes; and the right hon. Gentleman the Home Secretary, too, had overlooked it. But it was worth while for a moment to consider what the mistake really amounted to, and what kind of qualification it was in which Sheriff Berry was deficient. If it had been a qualification that had a necessary bearing on the discharge of his duties—upon his fitness for the office of Sheriff—it would have been more serious than it was; but the qualification wanting was merely attendance at the Court of Session. Such attendance did 1914 not necessarily imply any additional fitness for the office; and if Sheriff Berry wanted that qualification, he (Mr. J. A. Campbell) contended that he possessed a higher one, for, instead of being in attendance at the Court of Session, he was teaching law, and acting as an arbitrator in matters of law in Glasgow. What he was doing in Glasgow which necessitated his want of the other qualification was more useful in his preparation for the duties of Sheriff. Therefore, if the technical difficulty could be got over, he did not see that the public interest could suffer from what had been done. Reference had been made to the possibility of his right hon. and learned Friend having been actuated by political considerations in this appointment. He (Mr. J. A. Campbell) was sure that he was not; but, if he was, he had no occasion to appoint Sheriff Berry, because there were other candidates for the appointment who were quite as strong Conservatives. He (Mr. J. A. Campbell) was amused to find that the hon. Member for Kilmarnock (Mr. S. Williamson) was so much influenced by a letter he had seen in the newspapers. Probably he was not aware that that letter was written by a disappointed candidate for the appointment. As the letter referred to himself, he might say that he could confirm its statement, of which he was proud, that he had the friendship of Professor Berry. That gentleman was universally respected in Glasgow, and he (Mr. J. A. Campbell) would be confirmed by all who knew the facts when he said that Mr. Berry's services in his new position gave universal satisfaction, not only to the general public, but to the Profession and the Bar in Glasgow. He hoped the House would have no hesitation in supporting the Bill.
MR. SINCLAIR&c.) (Falkirk,said, he hoped that whoever were responsible in the future, the merits of Sheriffs-Substitute would be taken very seriously into consideration in appointments of this kind. He knew from the public opinion in Lanarkshire that all the Sheriffs-Substitute who were candidates in this case were thoroughly qualified to take the post of Sheriff, and it would have given great satisfaction to the public if one of those gentlemen had been appointed. But, after all, the practical question was more important than the personal one, and the great point was 1915 to have the decisions which Sheriff Berry had already given in the cases that had come before him confirmed, so that no further doubt could be thrown upon them. The hon. Member for the College Division of Glasgow (Dr. Cameron) had referred to cases in which litigants might desire to retain their claims under the circumstances of the irregularity of the appointment of Sheriff Berry. One such case had come to his knowledge. It would be in the recollection of the House that some serious riots occurred in Lanarkshire in the beginning of February, in consequence of which troops were ordered by the Sheriff to preserve the peace.
§ MR. SPEAKERThese remarks are not in Order. The Question before the House relates to the appointment of a gentleman to an office to which he has been appointed de facto, and the question now is whether he has the requisite qualification. The observations now being offered are apart from the question.
§ MR. SINCLAIRsaid, he would not pursue the line he was commencing, but would content himself with asking that the rights of those who were interested should be in no way damaged by this Bill.
MR. MUNRO-FERGUSON&c.) (Leith,said, he hoped that the advice given by the hon. Gentleman the Member for Mid Lanark (Mr. Mason) would be followed, and that the House would be allowed to proceed with the more important Business that was to follow. All the facts were admitted, and there was nothing to keep them from coming to a Division. No one could dispute that the question had been discussed at as great a length as was justified by its importance. Almost half the Sitting was already gone, and if every lawyer and every Member for Lanarkshire and Glasgow thought it necessary to address the House there would be a very remote chance of the important work they had before them being carried through. He did not believe either that public opinion in Scotland would support them in prolonging the discussion.
§ MR. MARJORIBANKS (Berwickshire)said, he desired to support the appeal of his hon. Friend (Mr. Munro-Ferguson). There was other Business of great importance, interesting to the people of Scotland generally, and he 1916 therefore hoped his hon. Friend would he satisfied with the discussion that had taken place, and allow a Division—if there was to be one—to be taken now, in order that they might proceed with other measures.
§ MR. CONYBEARE (Cornwall, Camborne)said, he failed to see why the right hon. Gentleman the Member for Berwickshire (Mr. Marjoribanks) should be in such a hurry to close the debate and to cover the neglect and deficiencies of Gentlemen who sat on the Ministerial Front Bench. It was all very well to say that this was a question which only affected Scotland; but he (Mr. Conybeare) believed that, when all the circumstances of the case were considered, it would be apparent that the matter did not only affect a particular district in which mischief had been done, but the whole country. That being so, he wished in a few words to express his opinions on the Bill before the House. He had nothing to say as to the personal qualifications of Mr. Berry, the Sheriff. He might be, and for aught he knew to the contrary was, the most qualified man in Scotland for the position of Sheriff; but what they had to consider was whether an appointment of the kind could be made, and ought to be made, in defiance of the law by Gentlemen who were supposed to be the Law Advisers of the Crown, without being met with strong reprobation from the House of Commons. The Bill said that doubts had arisen as to the appointment of Mr. Berry. No doubts whatever had arisen, and if he had no other objections to the Bill he had this one—that it misrepresented the circumstances under which its introduction became necessary. It was perfectly apparent to everybody that the appointment of Sheriff Berry was in defiance of the Statute Law; and, therefore, the correct title of the measure now before the House should have been "a Bill to relieve the Lord Advocate for the time being of the pains and penalties which his ignorance of the law and general neglect of all the circumstances have caused him to incur." It the Bill were put in that way and passed it would be a standing record of the actual facts. But to say that the Bill was necessary because doubts had arisen relative to Sheriff Berry's appointment was, to his mind, a perversion of the facts. If this 1917 was not a job, he (Mr. Conybeare) did not knew what was. He had a recollection of what had been said and done with reference to other appointments, notably that of the late Lord Monks-well, when he was Sir Robert Collier; and, in view of the course taken by the Opposition then, he insisted that those who objected to the appointment of Sheriff Berry had the best reason for taking a strong coarse in the matter now before the House. They were as much justified in reprobating the action of the Government in appointing Sheriff Berry as their political opponents were in denouncing the promotion, of Sir Robert Collier. But the right hon. and learned Lord Advocate was not the only official to blame in the matter. Ought not the right hon. Gentleman the Home Secretary to be included in any censure, seeing that the appointment of Sheriff Berry was confirmed by him? If the right hon. and learned Lord Advocate and the right hon. Gentleman the Home Secretary could not make appointments of the kind without displaying such ignorance of the Statute Law, he considered they were not fit for the positions they held.
§ MR. MACDONALD CAMERON (Wick, & c.)said, he thought those hon. Members who wished to castigate the right hon. and learned Lord Advocate for this appointment had had full satisfaction. He hoped the Bill would not be passed; but he would suggest this compromise—that the appointment of Mr. Berry to the office of Sheriff should not be confirmed by the House, and that he should be indemnified for the loss he had suffered by having to resign his Professorship in the University. If the House would agree to some such compromise as that, he thought the matter could be amicably settled. It was evident that the country was against the appointment, and he could not understand why the Government should persist in putting forward this Bill in. the teeth of such opposition as had been offered to it.
§ DR. R. MACDONALD (Ross and Cromarty)said, that as a serious allegation had been made against the right hon. and learned Lord Advocate, the right hon. and learned Gentleman ought to have the opportunity of saying whether that part of the letter that appeared today contained in inverted commas was correct—namely, that he (the right hon. 1918 and learned Lord Advocate) would "put a stop to the promotion of Sheriffs-Substitute"—a system which he (Dr. R. Macdonald) considered had been of great advantage, especially to the remoter districts of the country, by insuring the supply of a more efficient class of men for the office.
§ MR. J. H. A. MACDONALDsaid, he might say in perfect good faith that he had never made any such a statement.
§ DR. R. MACDONALDsaid, he was glad to hoar it, because he considered that since Sheriff-Substitutes had been able to be promoted to the Shrievalty they had had a better class of men coming forward. He was pleased to know that the right hon. and learned Lord Advocate was able to disavow the statements in the letter.
§ Question put.
§ The House divided:—Ayes 136; Noes 53: Majority 83.—(Div. List No. 370.)
§ Main Question put, and agreed to.
§ Bill read a second time, and committed for Friday.