HL Deb 21 July 1882 vol 272 cc1206-12

Order of the Day for the Second Reading read.

Moved, "That the Bill be now read 2ª—(The Earl of Galloway.)

LORD BALFOUR

said, that if he did not oppose the second reading of the Bill, he sincerely hoped he should not be held as committed to what seemed to him to be really taking away the jurisdiction from their Lordships' House and giving it to the Court of Session. He did not oppose the second reading, because he felt, to some extent, the necessity of a provision for making up a Roll of Scottish Peers, and having that Roll called at election times; but he hoped that, when the time came for going into Committee on the Bill, there would be some further explanations from the noble Earl promoting the Bill (the Earl of Galloway), as to the reasons which induced him to propose to transfer the jurisdiction from their Lordships' House to the Court of Session. Their Lordships could not fail to observe that their House had exercised that jurisdiction for a period of 175 years, and the onus of proving the necessity for the alteration lay upon those who proposed it. At the time of the Union, the Scottish Peers were placed in the same position in all respects as Peers of England, with the sole exception of sitting and voting in that House. He could not but look upon it in any other light than as a thing derogatory to the Scottish Peerage that they should transfer part of their jurisdiction to a Court inferior to that which tried the cases of the Peers of England or Ireland. He had another objection to the Bill. He believed it would very largely increase the already large expense of trying Peerage cases. The expense of trying Peerage cases must always be large; but if they had two Courts instead of one, it would greatly increase the expense, for he assumed that very few people would rest satisfied with the decisions of the Court of Session when power was given of appeal to the House of Lords. As the same counsel would, in all probability, be engaged on both occasions, there would be a great expense incurred in taking them for a time from England to Scotland, or from Scotland to England, as well as the additional expense of the preliminary trial in Scotland. Another reason why he should like to have some explanation of this proposed transference of jurisdiction was, because he saw that two of the noble Lords who voted in Committee in favour of the transference voted in a contrary way in 1874, when they were Members of the Committee appointed in that year on the same question, which Committee also recommended the making up of the Poll, but with this further condition, that it should be made up under the supervision of the House of Lords. It seemed to him that it would be very satisfactory if they could have from them a statement of what had happened since 1874 to alter their opinions on this matter. One word more. It seemed to him that the Bill, since he had seen it in print, went further than the recommendations of the majority of the Committee. Provision for making up the Poll was just what all of them assented to; but their Lordships would see that, by the 5th clause of the Bill, it was provided that any person who might think that his name had been improperly removed from the Poll might petition the Court of Session to place his name on the Roll; and some words in that section seemed to contemplate the possibility of a Peer, in whose favour judgment had been given by the House of Lords, having to petition the Court of Session. When a Peer who had already had his case decided in their Lordships' House presented a Petition, it should not be overruled by the decision of the Court of Session or any other Court. He merely made these remarks in order that the promoters of the Bill should not be able to say, when they went into Committee on the Bill, that they had been taken by surprise. It seemed to him that their Lordships should inquire very closely into the matter before they allowed it to become law. What he had said had been purely with the object of eliciting from those who promoted the Bill some further statement in its favour than they had already made.

THE MARQUESS OF HUNTLY

said, the noble Lord who had just sat down (Lord Balfour) must be under some misapprehension, for the Bill did not, in his (the Marquess of Huntly's) opinion, take away the jurisdiction of the House of Lords. The noble Lord's opinion must have been formed upon a very hasty examination of the provisions of the Bill. There was, no doubt, a provision that the Court of Session might first hear cases, and that House, if it saw fit, might confirm the judgment of the Court of Session; but the Bill distinctly provided for the ultimate decision of all cases in the House of Lords, so that the inconvenience in the present election of Representative Peers might be simplified in certain ways. They in Scotland were grievously tormented with some very obnoxious scenes at elections of Representative Peers; and the Report of the Committee was most strongly in favour of an improvement in the procedure, and he certainly thought the first thing they ought to do was to remedy the existing state of things. He believed that if the second reading of the Bill were carried, there would be a great many Amendments as to those clauses which dealt with the proceedings in connection with the Peerage; and, from what he had heard, he believed there would be a certain suggestion made which would improve the Bill. He thought the object of the Bill a very good one indeed, and he hoped it would be allowed to pass the second reading, so that it might be fully considered in Committee.

THE LORD CHANCELLOR

said, he quite agreed that there was no reason why the Bill should not be read a second time. It contained some clauses upon which there was not a serious amount of difference of opinion, and for the sake of those clauses alone, apart from the question of the very proper object the Bill had in view, it should pass that stage. He was bound to say that while the noble Marquess who had just spoken (the Marquess of Huntly) was perfectly correct in saying that the Bill did not take away the jurisdiction of the House of Lords, on the other hand, he (the Lord Chancellor) could not but think that the manner in which it met the difficulty was both inconvenient and not calculated either to promote the dignity of the House or that of the Court of Session. That House, since the Union, had exercised all such jurisdiction, he might, in fact, say exclusively, for a great many years past; and, seeing that the Scottish Peerage stood upon the same level as the Peerage of the United Kingdom in all other respects except that it was only represented in that House, and upon the same in all respects as the Peerage of Ireland, he thought it would be an anomaly and an inconsistency if the question of the titles of Peers were dealt with on substantially different lines in Scotland. It therefore appeared to him that so many of the clauses of the Bill as introduced a new procedure, which was to take precedence of the jurisdiction to be exercised by that House, in the Court of Session were anomalous and inconsistent with the dignity of the House, if it was to have substantial jurisdiction. He ventured to advise their Lordships to consider whether, on the assumption that the Bill would now be read a second time, those clauses ought not to be omitted, and a provision introduced in Committee, that all questions of errors, by omission or otherwise, in the Poll might be raised by Petition to Her Majesty, which Petitions should be referred to the House, and be taken in the ordinary way by a Committee of Privileges, that Committee having power, if they thought fit, to refer any questions to the Court of Session, subject to their own further consideration. In that manner a decision would be obtained in a direct way under the authority of the House; and the House would, in that case, be quite certain to show as much respect to any opinion which, upon a reference made to it, might be expressed by the Court of Session as ought to be shown. Those were his views as to the best way of dealing with the subject.

THE DUKE OF BUCCLEUCH

said, that he had taken a deep interest in the subject for many years, and he shared the opinion of the noble and learned Lord on the Woolsack that to refer these matters to the Court of Session in the manner proposed by the Bill was not at all a proper mode of dealing with it. He had not the slightest doubt that his noble Friend (the Earl of Galloway) was not aware that the Poll of English Peers was laid upon the Table of the House; but no one would ever dream that the Poll should be referred to the Court of Queen's Bench. That would be very much the same thing as submitting the Poll of the Scotch Peers to the Court of Session.

THE EARL OF REDESDALE (CHAIRMAN of COMMITTEES)

thought that a Poll of the Scotch Peers should be prepared and submitted to their Lordships' House before the Bill was further proceeded with. At the present time, they were not at all certain that what was now proposed was the best mode to be adopted. The Bill did not come into operation till 1884, so that if the question were deferred till next Session there would be ample time. In his opinion, the whole of the proposed arrangements with regard to the Court of Session must be derogatory to their Lordships' House.

LORD MONCREIFF

said, that as he had the honour of being the Chairman of the Committee on whose Report the Bill was founded, and as he agreed with the recommendations of the Committee, he was most anxious to say a few sentences, in order to bring out more clearly the real object of the proposition, and what evil it was intended to remedy. The noble and learned Lord on the Woolsack said very truly that the Peers of Scotland were put exactly on the same footing as those of England, with the exception of not having a seat in the House of Lords. They were restricted to certain Representatives elected by themselves from their own Body. But there was an anomaly, and there had been an anomaly ever since the Union, which he (Lord Moncreiff) thought was peculiar to the Peerage of Scotland, and out of that anomaly arose the difference with which they had to deal. The Peers of Scotland required no formality at all in the assumption of their titles, and there was no tribunal before whom it was necessary to go to prove their right. When a question of controversy arose, then, no doubt, they had recourse to their Lordships' House or the Committee of Privileges; but, in regard to those whose right had never been challenged, they stood upon their title, without any formality ever having been gone through, to show that they were entitled to the honour. One result of that was that when the Peers met to elect their Representatives, there was no authority by which it could be determined whether the votes which were tendered in support of one candidate or another were the votes of Peers at all. There was a Poll which was read out, which contained the titles only and not the names; and the result had been, as everybody knew, who had ever known anything at all of those elections, that it had happened, over and over again, that persons had answered to the titles of Peerages called out who had, in reality, no claim whatever; yet the Scotch Peers had no power to decide which was right and which was wrong. The noble Duke opposite (the Duke of Buccleuch) must have known that remedies from the existing state of things had been proposed from time to time. In 1822, a Resolution of the House was passed in regard to the assumption of titles; but it was never acted upon, and it was ultimately repealed. In 1847, there was an Act passed for the purpose of bringing up protests taken on the occasion of such elections to the House; but, as it had turned out, that had been practically as inoperative as the other was. In 1874, a recommendation was made that the Roll should be made up under the sanction of the House, but nothing whatever had been done. His main object, in rising on the present occasion, was to express a hope that, in whatever way the object might be accomplished, that would not turn out to be another as abortive an attempt to put the meeting of Scotch Peers for the election of a Representative upon a decorous footing as the former attempts had been. As to the present proposals, the real reason for consulting the Court of Session was this—there were two things to be done. The first was to make up the Roll, and the Roll could only be made up by disposing of the list of protests which had been made to the existing Peers. The second was to decide how the names of the successors of the existing Peers were to be placed upon the Roll in future. That would not be, in general, a matter of controversy, because the pedigree of those Peers would be readily ascertained. It seemed to him that it would be using rather cumbrous machinery for effecting small results if the proposals of the noble and learned Lord the Lord Chancellor) as to a Petition to the Queen, and the consideration of questions by a Committee of Privileges, were adopted. This was a matter in which the dignity of the Scottish Peerage was very much concerned; but, so far from the present Bill being injurious to the dignity of the House, he believed it would have no such tendency.

Motion agreed to; Bill read 2ª accordingly, and committed to a Committee of the Whole House on Tuesday the 1st of August next.