Lords Sitting of 27 February 1883

MINUTES.
PUBLIC BILL—First Reading—Representative Peers (Scotland) Election Procedure (6).
REPRESENTATIVE PEERS (SCOTLAND) ELECTION PROCEDURE BILL.

  BILL PRESENTED. FIRST READING.
  THE EARL OF GALLOWAY,in rising, according to Notice, to present a Bill to amend the procedure at the elections of Representative Peers for Scotland, said, that the noble and learned Earl on the Woolsack had presented a measure on the same subject on Monday evening, and as he (the Earl of Galloway) had been subjected to a certain amount of hardship in consequence of that procedure of the noble and learned Earl, he hoped their Lordships would allow him, under the peculiar circumstances of the case, to advert to what had taken place in connection with the matter in hand. It might be within their Lordships' recollection that about a year ago he (the Earl of Galloway) moved for and obtained the re-appointment of a Committee to consider the whole question of procedure at the election of Represen-

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  tative Peers in Scotland. The Committee sat several times, took evidence, and made a Report. He introduced a Bill, founded upon that Report. That Bill was read a second time early in July, and as he happened to have pressing duties in Scotland the Committee was not put down until August. In the meantime a great many Amendments were put on the Paper, including the number that were put down by the noble and learned Earl. Under the circumstances, he (the Earl of Galloway) did not think it expedient to press the Bill further; and, therefore, he withdrew it, and gave Notice of his intention to reintroduce it this Session. On February 19 this year, he gave Notice of his intention to re-introduce the Bill on that day—namely, the 27th instant. On the 22nd instant, the noble and learned Earl on the Woolsack, as he (the Earl of Galloway) was informed, gave Notice that he would present a Bill on the following Monday—namely, the 26th instant; but on the 23rd, and every day since, it appeared by the Notice Paper that the noble and learned Earl would present the Bill on that (Tuesday) evening, the 27th instant. In those circumstances, he (the Earl of Galloway) thought he was safe in being absent from town yesterday; he had, however, been greatly surprised to hear, on his return late on Monday night, that the noble and learned Earl had brought the Bill in, while he was absent from the House, although he (the Earl of Galloway) thought he might have postponed it to the day for which it stood on the Notice Paper. He had thought it necessary to make this explanation in order to justify the introduction of his own Bill—after the introduction of the noble and learned Earl's measure—which—that was his own—he considered should be called No. 1, and not No. 2 Bill. There seemed to him to be another reason for persevering with his own Bill. As far as he could gather from his speech, the Bill of the noble and learned Earl seemed to consist of two clauses only. Now, he thought that if their Lordships were going to legislate on this matter at all, it would be better to go more fully into the question, and, if possible, prevent any further difficulties arising. He hoped the noble and learned Earl would excuse him if he said, in further reference to his speech of last night, that he seemed in some respects
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  to have been trusting to a broken reed for his information. First of all, with regard to the request made by their Lordships' House to the Court of Session in 1739, he could not acknowledge that what the noble and learned Earl said was correct. The noble and learned Earl said that when a request that the Poll of Scotch Peers must be settled was made on the part of the House of Lords to the Court of Session, the Court reported, "That they could not perform the task." But what the Court really did, in its reply in 1740, was to assert "its right to entertain and decide all questions relating to Scotch Peerages." It was true, however, that when the House of Lords requested the Court to announce the limitation of every Peerage connected with Scotland, the reply was made that, as the work must assume such gigantic proportions in consequence of the difficulties arising from the peculiar laws and customs of Scotland, in respect of Peerages, the task was of too vast a nature to undertake. It was a fact well known in Scotland that all rights and privileges existing at the time of the Act of Union were preserved by the Articles of Union, and that nothing had been done to annul the jurisdiction of the Court of Session, but, indeed, the very reverse. He might further say that, by the law of the land, the law of Scotland ought to be applied to all cases arising in Scotland, as laid down in the Articles of the Union, and acknowledged by the most learned lawyers. In answer to the contention of the noble and learned Earl, that by bringing in the jurisdiction of the Court of Session they would be referring to another tribunal, other than the House of Lords, the right to determine who should have seats in their Lordships' House, he (the Earl of Galloway) stated that, as a matter of fact, the House of Lords never had had any authority whatsoever to interfere with the voting of the Peers of Scotland at Holyrood. Their Lordships were bound to accept the list of Peers sent up by the Lord Clerk Register as the 16 Representative Peers of Scotland. Therefore, there could be no question now, in his (the Earl of Galloway's) Bill, of taking away any existing right or power from the House of Lords. The only question was whether it was advisable that the House of Lords should have new powers. The noble

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  and learned Earl laid stress on the fact that there had only been one instance in which the Court of Session had been referred to as the proper Court of jurisdiction since the Union, and it was quite evident that he was referring to the case of Lord Lovat in 1733. In that case the noble and learned Earl stated that a compromise was arrived at, resulting in a large sum of money being paid to prevent the order of the Court of Session from being brought before the House of Lords by way of appeal. He should really like to know where the noble and learned Earl made that discovery. He (the Earl of Galloway) could not find any such record. That had been said before, but it had never been stated on authority, and he did not believe there was one iota of proof in support of the statement; and the best proof that his contention was right was, that Lord Lovat was tried for high treason before that House as a right, inasmuch as it was the right of every Peer to be tried by his co-Peers, and he had the satisfaction of being condemned to execution by their Lordships' House. The only ground on which he could claim to be so tried as a Peer was that the Court of Session had found that he was entitled to the Peerage he claimed. Therefore he thought the noble and learned Earl had fallen into an unfortunate error in citing a case that had no weight whatever, and he had also been simply misled by idle gossip when he said that the case in question was settled for a large sum of money. The noble and learned Earl compared the Report of the Committee of 1874 with that of the Committee of 1882, to the disparagement of the latter, the sole object he had in view, apparently, being to extol in the highest degree the merits of the Report made by the former, while throwing cold water upon that made by the latter. But the Committee of 1882 contained the names of the Earl of Milltown, the noble Earl the Chairman of Committees (the Earl of Redesdale), Lord Balfour of Burleigh, Lord Inchiquin, the Marquess of Lothian, the Earl of Belmore, Lord Brabourne, Viscount Monck, the Earl of Stair, the Earl of Kintore, Viscount Sherbrooke, and Lord Watson; and such names, with that of Lord Moncreiff as Chairman, surely entitled the recommendations they made to some weight and consideration. The
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  noble and learned Earl preferred the Report of the Committee of 1874; but there were Reports of Committees in 1822, 1847, 1851, and 18(59, as well as 1874, and all those Reports were before the Committee of 1882, which selected from them such recommendations as they thought most suitable, and notably that of 1874 as regards instituting an Election Roll, and only tried to supplement them by provisions to be enacted in a legislative measure. He (the Earl of Galloway) wished now specially to emphasize what was not in his Bill. In the first place, there was not to be found in it any proposition to subvert any Article in the Treaty of Union; secondly, there would be no attempt to infringe upon the Prerogative of the Crown; and, thirdly, there would be no attempt to interfere with the prescriptive authority of their Lordships' House. As regards its provisions, in the first place it proposed to delegate to the Lord Clerk Register to form the Election Roll of Peers himself, to make it up not only of those on the Union Roll, but also of others which happened not to be on it at the time of the Union, in consequence of being dormant or under attaint, but which had been since restored, all in their right and proper precedence. The Roll List should contain not only the titles, but the Christian names and surnames of the holders of Peerages. In the second place, the Lord Clerk Register was enjoined to send up to their Lordships' House a Report on the matter of titles not upon the Election Roll, in consequence of controversy. Then there would be a provision for enabling any individual Peer aggrieved to present a Petition to Her Majesty, as to his right to be on the Election Roll, or as to proper precedency. That might also be in the Bill of the noble and learned Earl.
  THE LORD CHANCELLORsaid, of course it was.
  THE EARL OF GALLOWAYsaid, it was not so reported in the London papers.
  THE LORD CHANCELLORsaid, that, at all events, it was in his speech.
  THE EARL OF GALLOWAY,continuing, said, there was a further provision that the said Petition, on being referred by Her Majesty to the House of Lords, was to be remitted—and it was

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  here he thought the noble and learned Earl would differ from him—in case of investigation being evidently required, to the Court of Session for their Report—the final adjustment resting with the House of Lords. In the third place, the Election Roll, which was to be made out annually, was to be conclusive evidence of the right to vote. The claims of future claimants to the right to be put on the Election Roll were to be referred to the Lord Clerk Register for Report to the House of Lords; and, if doubtful, were to be referred to the Court of Session for their Report to the House of Lords. That would save time if Parliament were not sitting. There was a special provision that the Order of the House of Lords should be equivalent to entry on the Election Roll, when no opportunity of getting that Order on the Roll had been obtained. With respect to claims to be put on the Roll, the Bill provided that they should not be made vivâ voce at the time of the Election, but should be sent in in writing to the Lord Clerk Register, for transmission to the House of Lords. He might say, generally, that the Bill was practically the Bill he introduced last year, with the exception that it was made undeniably clear that it was not intended that the Court of Session should decide cases themselves. There was simply a reference to the Court of Session, and a provision that their Report on each case should always be received by their Lordships before finally determining the rights of the case. He might add, in conclusion, that the Bill had been drawn in a careful manner and moderate spirit, such as were likely to insure, he hoped, the subject no longer remaining what was termed a vexata quœstio. He moved the first reading of the Bill.
  Bill to regulate procedure at the elections of Representative Peers in Scotland; and for other purposes—Presented (The Earl of GALLOWAY.)
  THE EARL OF BELMOREsaid, it seemed to him that both the Bills now before the House treated the matter simply as being one connected with certain differing rules of procedure. What they all desired to arrive at was that the names of the right persons should be inscribed on the Roll. He was aware that some of the noble Lords connected with Scotland had what
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  seemed to him somewhat exaggerated opinions with reference to procedure. As a Member of the Committee of 1882 he had voted for the proposal of Lord Moncreiff in the Committee, and he thought that, consequently, his noble Friend might expect hint now to support his Bill; but he must say it seemed to him that the Bill of the noble and learned Earl on the Woolsack seemed to be preferred by almost all the Peers from Scotland; and, inasmuch as a Bill by the Government was much more likely to receive the assent of Parliament than one brought in by a private Member of that House, he submitted whether it was worth the noble Earl's while to go on with the Bill? For himself, he (the Earl of Belmore) though he voted in the Committee of last year with his noble Friend (the Earl of Galloway), he should now, under all the circumstances of the case, consider it his duty to support the Government Bill, as providing an expeditious machinery by which the right person would be admitted to vote.
  THE LORD CHANCELLORsaid, he very much regretted that the noble Earl (the Earl of Galloway) should have been misled by the unauthorized form in which the printed Notices appeared, and that, under these circumstances, the noble Earl was unable to be present yesterday. The Clerk of the Parliaments sent a message to the noble Earl, which, it was hoped, might reach him; and when he (the Lord Chancellor) came down to the House, he found there was a sufficient attendance of noble Lords interested in the subject, and it appeared to him that, on the whole, it was the better course to proceed according to the Notice. Now, he had nothing at all to-complain of in the observations of the noble Earl. He proposed an alternative plan, which, if he thought useful, he was entitled to press on the House; but he was surprised he should have thought that all he (the Lord Chancellor) said was reported in the newspapers. Of course, he did his best to explain the details of the Bill; but it was not surprising that the skilful and able gentlemen who reported the proceedings should have thought that those details might be left to be gathered from the Bill; and that it was better they should report what might generally interest newspaper readers than the technical

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  parts of the Bill, which was not confined to two clauses, as the noble Earl supposed. On the contrary, it consisted of 10 clauses, and it aimed at accomplishing all the objects mentioned by the noble Earl. He would not say it did it better, because he had not yet seen his noble Friend's Bill; but in some respects the draftsmanship of his (the Lord Chancellor's) Bill might, perhaps, bear favourable comparison with the Bill of last year, introduced by his noble Friend. The only material difference between the Bill now presented and that which was introduced last night appeared to be as to the mode in which claims for succession were to be presented, and disputed questions of title were to be adjudicated upon. He was surprised that the noble Earl should have persuaded himself that the proposal that every Petition presented to the Queen was to be remitted by that House to the Court of Session for Report, was the same as his (the Lord Chancellor's) own proposal of last year. That proposition was that, on a Petition being presented, it should be lawful for the Committee of Privileges, if they should think fit, to state a case as to the question of the law of Scotland for the opinion of the Court of Session; and also, if they should think fit, to refer it to the Court of Session to receive and report evidence. To that proposition he adhered in the Bill which he yesterday presented. The noble Earl's proposal was that they should be bound to send everything to Scotland.
  THE EARL OF GALLOWAY: No, my Lords; I said, where there is a necessity for investigation.
  THE LORD CHANCELLORsaid, that if the words "if they think it necessary" were there, then he did not see that there was any very great difference between his Bill and that of the noble Earl.
  THE EARL OF GALLOWAYsaid, the words "if they think necessary" were in his Bill.
  THE LORD CHANCELLORsaid, it had appeared to him, in dealing with that part of the question which related to succession after death, more consistent to adopt the method which was in use as to the succession to Peerages of Ireland. He would not follow the noble Earl through all the exceptions taken by him to his speech of yesterday; but the noble Earl had him-
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  self made one or two rather extraordinary statements which seemed to call for notice. For example, the noble Earl had said that the House had, at present, no power as to the votes taken at Holyrood. Surely, he had forgotten that the Act of 1847 expressly authorized that House, in the case of those old dormant Peerages, which had not been voted upon for many years, to restore them to the Roll for the purpose of voting. It also gave that House certain powers in the case of a contested Election of Representative Peers, and entitled it to order that in case of protests, which were not properly followed up by claims in that House, the titles of Peerages should not be called at elections. And in 1851 there was another provision—that where any Peerage had not been voted upon for 50 years, the Lord Clerk Register was to report the fact to that House, and the House might order that those Peerages should not be called. The truth was, as he (the Lord Chancellor) had said, that since the Union the House had a direct interest in the matter of a kind that could not have existed when there were no Representative Peers. The Representative Peers sat and voted in that House, and, if not duly elected, as might happen, if all persons who chose to tender votes at Holyrood could, without inquiry, elect Representative Peers, the House might have Members thrust upon it who were not entitled to sit and vote in it. They would have got in irregularly and unconstitutionally, and contrary to the intention of the Act of Union. His noble Friend had thought it worth while to refer to what he (the Lord Chancellor) had said about Lord Lovat's case; but the mistake was on the part of the noble Earl. It was true the Court of Session, after the Union, performed this one act of jurisdiction—if such it could be called—as to a Peer. Three years before the Union the Court of Session had declared an heir female entitled to that Peerage in the absence of the heir male; and in 1730 Lord Lovat came forward to ask the Court of Session to "reduce" its former Order, and the Court of Session did so. The want of confidence which the Court of Session had in its own jurisdiction over such a case was apparent from the Report of 1740, in which the Court of Session, after stating the

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  circumstances of that case, said—"But whether that judgment is of sufficient authority they humbly submit to your Lordships;" plainly showing that they were doubtful as to their authority in that case even in the peculiar circumstances. The statement that there had been a compromise and a sum of money paid was made on the authority of witnesses examined before the Committee of 1882. His noble Friend appeared to suppose that the decree of the Court of Session in 1730 had been recognized by that House when Lord Lovat was tried for his part in the Rebellion of 1745. To him it was surprising that his noble Friend seemed not to be aware that Lord Lovat was not tried by that House upon an ordinary criminal indictment, but was tried upon a Parliamentary impeachment by the House of Commons, just as Warren Hastings was, who was no Peer; and no question of any title to, or privilege of, Peerage did, or could, under those circumstances, arise. There was no trace of it in the Report, which the noble Earl would find in the State Trials; it was wholly immaterial for the purposes of the impeachment whether he was a Peer or not. It was the clearest thing in the world that since the Union the real and substantial operative jurisdiction had been exercised by the House of Lords alone. He wished to add that he had not, as his noble Friend seemed to imagine, said anything in disparagement of the Committee of 1882, for whom he had all possible respect; it was no disparagement to them to prefer the unanimous recommendation of the Committee of 1874.
  Bill read 1ª and to he printed. (No. 6.)
  House adjourned at half past Five o'clock, to Thursday next, a quarter past Ten o'clock.