§ (2.) It shall be competent for the Board, or for any local authority, or for any parish council, to present a petition to the sheriff, under the fourth section of the Burial Grounds (Scotland) Act 1855, to the same effect, and to be followed out in like manner as if presented by any of the persons or parties therein mentioned.
§ *THE LORD ADVOCATEin Sub-section (1) moved to leave out "five householders," and insert "ten ratepayers."
§ DR. CLARKtrusted the Lord Advocate would not make this change in the law. It was proposed for the sake of uniformity. He objected to both alterations—"ten" instead of "five," and "ratepayers" instead of "householders." At the present time if a nuisance existed any five householders residing within the district might intimate this nuisance to the local authority, and then, if the local authority did not abate it within fourteen days, they had the right to go to the Sheriff and ask him to compel the local authority to abate the nuisance. If the 1344 local authorities neglected their duty, why should not any persons who were suffering from a nuisance have the right to go to the Sheriff Of course, unless they could prove that there was a nuisance they would have to pay the costs. Was it likely that any person would go to the Sheriff unless he had a good case? It was the persons interested, whether ratepayers or not, who should have the right. As to the number of ten it was no doubt very easy to get that number in the Lowlands, which were fairly well populated, but in the sparsely populated districts of the Highlands it would be very difficult indeed to do so. The difficulty would be all the greater because they had in the Highlands a number of crofters who were not ratepayers at all. They might suffer from disease because of the non-abatement of a nuisance, but still, if this Amendment were carried, as they were not ratepayers they would have no voice in the matter at all. Where it was a question of spending money the ratepayers might very well be consulted, but when it was a question of a nuisance he thought that householders, even if they were not ratepayers, should be allowed to take action.
§ *MR. WEIRcontended that so far as the Highlands were concerned this would prove an unreasonable and unworkable Amendment. In many of the small Highlands townships it would be impossible to get ten ratepayers, and if the Lord Advocate pressed this Amendment he should move to exempt the Highland counties from its operation.
§ *THE LORD ADVOCATEsaid that of all the clauses in the Bill this was one upon which action should not be taken at the instance of anybody, but at the instance of some representative body. It was obvious that what this clause proposed should be clone only when there was a real public feeling about it, and he knew the Highlands well enough to know that if action were necessary the finding of ten ratepayers would not be an impossibility. In the Committee they agreed that ten ratepayers should be inserted, and it was a mere accident that it was not put in in this particular clause. The hon. Member for Caithness was quite wrong in the reasons he gave to the House. It was, said the hon. Member, right enough to adopt such an Amendment as this where it was a question of 1345 spending money, but wrong where it was not a question of spending money, but of abating a nuisance. The hon. Member seemed to forget that the discussion in Committee upon which they finally adopted the modus vivendi of the ten ratepayers was upon Clause 22, which had nothing in the world to do with spending money, but related entirely to the question of nuisances. In proposing this Amendment he was simply carrying out the understanding come to with both sides in the Committee.
§ Question put, "That the words 'five householders' stand part of the Bill."
§ The House divided: —Ayes, 51; Noes, 119.—(Division List, No. 340.)
§ Words "ten ratepayers" inserted.
§ *MR. WEIRmoved to insert after the words last added the words "or in the crofting counties of the Highlands five householders." To insist upon ten ratepayers in some of the Highland districts would be to make the clause unworkable. In some of the small townships he really did not know how ten ratepayers could be got together.
§ *THE LORD ADVOCATEsaid he could not, of course, accept the Amendment, and he scarcely thought the hon. Member appreciated the limited point the clause dealt with. It provided for the special case where a local authority themselves on their own premises created a nuisance. Quis custodiet ipsos custodes in fact, and it was not expedient to allow anybody to worry a local authority by simply getting together a very few men of the district.
§ DR. CLARKsaid his hon. Friend would probably not persevere with the Amendment, and he only desired to say that this was now the law in Scotland, and had been the law for thirty years by the Act passed in 1867, and though he now proposed to change it, the Lord Advocate had not shown any case in which the law had been abused. It was a retrograde step, and no goal reason had been assigned for it.
§ Amendment negatived.
§ Amendments made: Leave out "or Justice of the Peace," and "or the 1346 burgh court"; leave out "or other Judge or court."—(Lord Advocate.)
§ *THE LORD ADVOCATEsaid this was the procedure in a case which would not be frequent, where the local authority would be pulled up for neglect of duty, and he thought in such an exceptional case the tribunal should be the Sheriff's Court, not a police or burgh magistrate, very worthy persons, no doubt, but not such as should hold the scales and determine points of difference of this kind, involving the conduct of a local authority.
§ Amendment agreed to.
§ Clause 158,—