BILL PRESENTED. FIRST READING. (Hansard, 26 February 1883)

THE LORD CHANCELLOR
rose to present a Bill to regulate procedure at the elections of Representative Peers for Scotland. The noble and learned Earl pointed out that by some error, though he gave his Notice for to-day, it had been printed on the Paper circulated on Saturday as if it stood for to-morrow; but he did not think that any noble Lord would be prejudiced by his presenting the Bill at once. A communication had been made to the noble Earl (the Earl of Galloway), who took some interest in this subject, and he was sorry not to see that noble Earl in his place; but, on the whole, he thought it would be convenient to those present that he should proceed now. Their Lordships were aware that this subject had been frequently discussed in this House.

THE EARL OF LIMERICK
said, he rose to a point of Order. He objected to the subject being brought forward, as the noble and learned Earl's Notice for presenting the Bill was not on the Notice Paper for that day, which had been circulated to Members of the House.

THE LORD CHANCELLOR
said, that on Thursday last he gave Notice of his intention to proceed with the Bill to-day, and he had never retracted his Notice or authorized any variation of it. The Notice Paper now on the Table contained the correction.

THE EARL OF LIMERICK
Then there meet be two Notice Papers. The noble and learned Earl's Notice, and that of another noble Earl on the same subject, were on the Paper for tomorrow.

§ THE MARQUESS OF SALISBURY
As to the point of Order, there can be no doubt that the Notice given in the House is the one to follow, and the printed Notice is of no authority whatever. That being so, there can be no objection to the course which the noble and learned Earl on the Woolsack proposes to take.

THE LORD CHANCELLOR
said, their Lordships were aware of the considerable divergence that existed in the three parts of the United Kingdom as to the mode of verifying the rights of Peers. In England there was every Session laid on their Lordships' Table a Boll of all the Peers entitled to sit in their Lordships' House; and if any succession took place by death, the usual course was for the Peer who desired to have a Writ to summon him to that House to make an application to the Lord Chancellor, who looked into the evidence of his succession, and if it appeared clear and satisfactory the Writ issued as a matter of course. A nominal Roll was also drawn up in Ireland, called the Ulster Roll, which contained a list of all Peerages in respect of which votes could be given; and, when any change took place there by succession, the practice was for the Peer claiming the right of succession to present a Petition to their Lordships' House; the Petition was then referred to the Lord Chancellor; and if he reported that the Petitioner was entitled to vote, the Peer was entered on the Roll as entitled to vote for the election of Representative Peers. If any substantial question were raised about the Petitioner's right, the matter was referred for investigation by the Committee of Privileges; and so it would be in England also, if there were any doubt or difficulty. With regard to Scotland, 16 Peers were elected to sit in that House in every Parliament; but, with that exception, all Scotch Peers were on a footing of perfect equality with English Peers. The Union Roll, which was made up under the direction of that House after the Union with Scotland, was a Roll of Peerages, and not a nominal Roll, and did not show who were entitled to vote. In cases of doubt no provision was made as to the admission or rejection of any claim; anybody who pleased might appear and vote; and, consequently, great inconvenience had sometimes arisen in 817 connection with the elections of Scotch I Representative Peers. As early as 1739 the matter was referred to the Court of Session, with a request that a general investigation of Peerage rights in Scotland might be made; but the Court reported that they could not perform that task. Then for a long time matters went on as before. In 1822 the House passed a Resolution determining that where the descent was not direct either from a lineal ancestor, or from a brother, there should be an application to the House to ascertain the succession before the right to vote was admitted. That was acted on for 40 years. But in 1862, not having been found completely to answer its purpose, the Rule was rescinded, on the Motion of the Duke of Buccleuch. Many Committees had inquired into the subject. There had been such inquiries in 1832, 1847, 1851, 1869, 1874, 1877, and 1882. All agreed in representing the state of the law and practice as very inconvenient and objectionable and requiring a remedy. The evil was thus stated in the Report of the Committee of 1847— It is believed that the Peerage of Scotland is the only body invested with important privileges in this Kingdom without any provision being made for testing the right of those who may claim to exercise them; whereby, not only the dignity of this branch of the Peerage is compromised, but the return of Representative Peers to the House of Lords may be affected, and the public subjected to fraud by the conduct of persons acting as Peers of Scotland who are not justly entitled to the honours they assume. This state of things has been long felt to be a great evil and grievance, and various remedies have been proposed, some of a general and comprehensive nature, others in reference to particular cases brought before the notice of the House; but all these have either been abandoned before they were matured, or have been found insufficient for correcting the abuses which have been described. In some points these abuses had since been mitigated, but in general they had remained to the present time. He said that the abuses had been mitigated, for there was legislation on the subject in 1847 and 1851. The legislation of 1847 directed that no title of Peerage should be called after that time at elections except those in respect of which votes had been tendered and received since the commencement of the century—namely, since 1800—unless the House of Lords should otherwise order. It provided, also, that no title of Peerage should be called when the House of Lords should direct the 818 contrary after a vote had been disallowed on a contested election. It also provided that, in the case of two Lords protesting, the protest should be reported to that House, and the House might require the claimant to establish his right before the House, and, if he did not establish his claim, the House might direct his title not to be called. It was further provided that effect should be given to all claims of Peerage allowed by the House of Lords. In 1851 the time limited by the Act of 1847 was further abridged, the Lord Clerk Register being directed to report the titles of all Peerages appearing from time to time on the Roll in respect of which no votes had been received for 50 years; and it was provided that this House might, if it thought fit, order that they should not be called. In 1874 there was a general inquiry by a Committee, presided over by the Earl of Rosebery, into various questions affecting Scotch and also Irish Representative Peers; and that Committee reported in paragraph 6 as follows:— They would recommend that for the future the Peers' Poll used at elections should be as in Ireland—a Roll of individuals, and not of Peerages; such new Poll of individual Peers of Scotland to be drawn up by the Lord Clerk Register of Scotland, under the direction of the House of Lords; and no alteration to be made in that Poll at any time thereafter without the authority of the House of Lords. Some difficulty might at first be experienced in making up the Poll; but it would, in the opinion of the Committee, be practicable to lay down certain rules, as suggested by one of the witnesses, which would greatly simplify the proceeding. This Bill was in substance founded upon, and it endeavoured to give effect to, that Report. Since that time, as he had stated, the matter had been still further considered. Last year, 1882, there was another inquiry by a Committee presided over by Lord Moncreiff, and that inquiry was followed by the introduction of a Bill. He (the Lord Chancellor) gave Notice of his intention to propose certain Amendments to that Bill; and the Bill which he now presented was, substantially, in accordance with what he then proposed. The difference between the Report of the Committee of 1882 and that of the Committee of 1874 was an important one. The Committee of 1874 proposed that the authority of that House should be the ruling authority, and should be preserved unim- 819 paired in all these matters; but the Committee of 1882, influenced apparently by the evidence given by two learned witnesses, recommended that the jurisdiction of the Court of Session should be used for two purposes—in the first place, to set right all errors and omissions which might be alleged to exist in the Roll, as prepared by the Lord Clerk Register—he was not quite sure whether that was to be subject to the assent of that House or not; and, in the next place, it was proposed that the claims of all successors should, in the first instance, pass through the Court of Session, and then come to the House of Lords, which, as to those claims, should have final authority. He submitted to their Lordships that the recommendations of the Committee of 1874 were, in these respects, preferable to those of the Committee of 1882. He agreed that, looking to the difference between the law of Scotland and the law of England and Ireland, it might sometimes be convenient to send down cases for the opinion of the Court of Session, and also to refer it to that Court to take evidence. But he did not think there would be any advantage, whether from the point of view of Constitutional principle, or of Constitutional law and practice, in giving any direct power of determining questions of Peerage to the Court of Session. No ground whatever of a legal, historical, or Constitutional kind was suggested by or before the Committee of 1882, except that certain cases—he believed 10 or 11 in number—were mentioned, in which, before the Union, the Court of Session had exercised some authority as to certain Peerages. He would not trouble their Lordships with the questions which might exist as to the nature, validity, or final character of the jurisdiction which was so exercised in those 10 or 11 cases before the Union by the Court of Session. Assuming that jurisdiction to have been clear and unquestionable, it was under a state of things which had since entirely ceased. The only other jurisdiction which then existed was that of the Parliament of Scotland. There was evidence that the Parliament of Scotland did, more than once, come to resolutions on certain questions of Peerage. But in Scotland there was not a separate House of Lords. After the Act of Union, the Scottish Parliament ceased 820 to exist. Although the Act of Union did not settle the mode of procedure so as to exclude the questions which had since arisen, yet it did provide that 16 Representative Peers should sit in that House, and that in all other respects all Peers of Scotland should be on an equality with the Peers of England; and if their Lordships were to give to any other authority the power of deciding who those Peers were, they would be delegating to another tribunal the right to determine, indirectly, who should have seats in that House. And the Peers of Scotland would not be in the same position as the Peers of England, if a different authority were to determine questions affecting their titles and dignities. Then there was the practice during the whole time since the Union. A single instance was, indeed, alleged in which there was some appearance of the Court of Session dealing with a question of succession to a Scotch Peerage, in 1730. But that, when examined, was found to be not really to the purpose. All that the Court of Session did in 1730 was to rescind, or reduce, a decree' in absence"—that was, ex parte—which it had made three or four years before the Union as to the succession to the Lovat Peerage. Even this exercise of jurisdiction was considered so doubtful, that it became the subject of a compromise; and there seemed reason to believe that a large sum of money was paid to prevent that order of the Court of Session from being brought to the House of Lords by way of appeal. With that one exception, every question of the kind was always determined by the House of Lords. Beginning with the year 1714, and coming down to the present time, 47 disputed questions of Scotch Peerage had been decided in one way or the other by the House of Lords, and 11 Scotch Peers had been added to the Union Roll, all by the authority of that House. Moreover, the authority of the House was affirmed and declared by all the legislation affecting Scotch Peerages. The Preamble of the Act of 1847 said that it was— Expedient that no person should be allowed to vote on the Union Roll in respect of any Peerage which had been for some time dormant in any election until his claim had been admitted by the House of Lords. And the same Statute, and the Act of 1851, contained those provisions which 821 he had already brought to their Lordships' notice. The House's authority, therefore, was maintained by principle, by uniform practice since the Union, and by Parliamentary enactments. Under these circumstances, he considered that the proper course would be to legislate in accordance with the recommendations of the Committee of 1874. That Committee recommended that they should have a nominal Poll, which alone should be called, with proper provision for cases of succession, and to do that in the same way as in Ireland. The Bill which he introduced would accomplish these objects. It provided that the Lord Clerk Register should in every year make up this nominal Poll to be in force for one year from the 1st of January, subject to such amendments as might be made in it during the year by the authority of the House of Lords. It would contain, set against his title of Peerage, in the order of precedence appearing by the Union Poll, the Christian and surname of every Peer living at the time when the Poll was made out, who should have at any time been a Representative Peer in that House, or who should have voted at any election of Representative Peers since 1862, without protest, or whose right to vote had been established by an order of that House. It was proposed that on the death of a Peer anyone claiming to be his successor might proceed in the same way as was done in Ireland—namely, by presenting a Petition to that House. All orders of the House of Lords were to be given effect to. Errors in the Poll might be corrected, and claims of Peers not entered upon the Poll might be adjudicated upon, as at present, upon Petition to the Crown, which would be referred to that House, and considered before the Committee of Privileges. Special cases might be stated for the opinion of the Court of Session, which would also have power, on a reference from the House, to take evidence. The House of Lords would, in the same manner, decide all questions of precedence. He had been favoured with a communication from his noble and learned Friend (Lord Moncreiff), which led him to believe that these provisions would be satisfactory to that noble and learned Lord. He would therefore ask their Lordships to give the Bill a first reading.

THE MARQUESS OF LOTHIAN
said, it appeared to him that it would be better if the names of Peers were arranged alphabetically, instead of according to the order of precedence. He thought the arrangement he suggested would obviate a good deal of difference and difficulty. He agreed with every remark that had fallen from the noble and learned Earl (the Lord Chancellor), and he regretted that the noble and learned Earl had not taken the same view last Session as he now took.

THE LORD CHANCELLOR
said, that he could not let that observation pass without saying that what he had signified was that Lord Moncreiff had said that he should be satisfied with the Bill that was introduced on the last occasion. He thought it would be better that the Bill should not follow the Union Roll.

THE MARQUESS OF HUNTLY
said, he hoped the Bill would settle a long-vexed question; but suggested that the second reading should be postponed till after Easter, in order that Lord Moncreiff, who took so much interest in the subject, might be able to be present, and the House might have the benefit of his opinion upon the matter, with which he was so well acquainted.

LORD ELPHINSTONE
said, that, as one of the elected Peers for Scotland, he thanked the Lord Chancellor for bringing forward the Bill. If any of their Lordships happened to be at Edinburgh at the time when the next election of Representative Peers took place, he would strongly recommend them to go down to Holyrood and see the proceedings. A table, covered with green cloth, was laid down the centre of the room, and there were benches for the accommodation of those of the Scottish public who wanted to see what was going on. The Lord Clerk Register appeared in his robes. There was a scramble among the people for seats, and how it was that they went there to witness such uninteresting proceedings was more than he could understand. The Lord Provost and Magistrates and the Town Council of Edinburgh attended in their official robes, and some Mi- 823 nisters were also present. The Union Roll was called, and then commenced the wrangling. When one Peer was called in precedence, he was represented by a learned gentleman in a gown and wig, who protested against any other Peer being called before him. Then they came to handing in their votes. A Peer handed in his vote, and votes for so-and-so, and then a learned counsel protested against so-and-so being allowed to vote, and another Peer protested against this being done, and so on ad infinitum.He had been about to describe the proceedings as disgraceful, but he would say, at all events, that they were not creditable. He thought the Bill now brought in would put an end to all that scandal. He therefore hoped their Lordships would permit it to pass.

THE LORD CHANCELLOR
said, he could hardly postpone the second reading till after Easter, but he would be quite willing not to take the Committee before then. It was in Committee that the presence of the noble and learned Lord (Lord Moncreiff) would be most valuable, and he hoped that arrangement would suit the convenience of the noble and learned Lord and other noble Lords. He proposed to take the second reading that day fortnight, and hoped the noble Lord would not object.