§ 3.2 p.m.
§ Lord WILBERFORCE
My Lords, I beg to move that the report from the Committee for Privileges be agreed to.
§ Moved, That the report from the Committee for Privileges be agreed to.—(Lord Wilberforce.)
§ Lord MOLSON
My Lords, I support the Motion that has been moved by the noble and learned Lord. I respectfully concur in the opinion of my noble and learned colleagues. Nothing that I am now about to say in any way detracts from that concurrence in their opinion that this petition should be granted. Since lay Lords are appointed to sit with law Lords in peerage petition cases it is to be assumed that after the existing law has been stated it is proper for a non-legalistic view to be expressed and for your Lordships to be respectfully advised if amendments of the law are needed.
I am of the opinion that no petition of this nature should ever again be entertained. It would be presumptuous and otiose for me to attempt to explain any of the complexities of the peerage law of Scotland in the 17th and 16th centuries, as this has been expounded by my noble and learned colleagues with all the clarity and certainty of which such an arcane subject permits. This system of law ended as regards new creations of nobility with the Act of Union in 1707. It has, however, maintained a phantom existence and comes back to life from time to time like a ghost from the tomb, to the embarrassment of the living, when problems arise relating to pre-1707 peerages. Consequently the rules of law and custom obtaining in the 17th and 16th centuries in Scotland have to be studied and elucidated in order that petitions of this kind may be heard, at great public expense, with a view to the revival of some historic title of nobility.
The present petition is an example. The 12th Baronet is the collateral heir 898 of the gentleman who was created the first baronet and later created the first Viscount. He seeks to make out his claim to be the third Viscount. The second Viscount died in 1705. What might at first sight appear a simple case has in fact proved to be one of great complexity. The main reason was the right of a Scottish Peer to surrender, through a complicated procedure, to the Sovereign his peerage and receive it back, usually with different limitations as to heirs, who might be descendants, or collaterals, or even anyone whom he named. It was a purported surrender of this kind which was thought to have separated the viscountcy from the baronetcy in 1705. The complex rules governing such surrenders and re-grants are, and probably have always been, a matter of argument and controversy. The problem has been further complicated by the number of contemporary documents relating to this matter and the loss of some of them since 1650.
The common ancestor—I might say the fons et origo—of all this controversy was Sir James Makgill, who died in 1553, and was the great grandfather of the first Viscount. The difficulties of this case, even in the 18th century when these transactions were not so remote in time, are illustrated by the facts that the petitioner's ancestor was allowed in 1733 to vote as a Peer for the representative Peers of Scotland. The objector did not claim the title for himself, but it is not known for certain why he did not do so.
In 1735, that is two years later, the Committee for Privileges of this House decided that the present petitioner's predecessor had not proved his claim to the viscountcy, although they did not say that it was unfounded. Your Lordships' House then accepted the report of the Committee for Privileges. Your present Committee had to consider whether they were bound by this precedent, but after due consideration they decided they were not. The previous Committee, in 1735, had not said that the case was bad but only that the case was not proven.
What is the effect of our report and what general conclusion should we draw from this renewed petition, at great expense of time and money, after 242 years for the Viscountcy of Oxfuird? I put a 899 Parliamentary Question to ask the estimated cost to public funds of this petition. Shorthand, printing and publishing expenses amounted to £5,650, but the most important part of the true cost was not stated; that is, the Treasury Solicitor, the law officers and the Lord Advocate all had to take time from their other duties to consider this petition. Most important of all, four law Lords, the senior and highly paid members of the Judiciary, had to devote two and a half days to the hearing.
How much midnight oil they burnt in producing their erudite judgments I do not know. I respectfully admire their lucubrations, but doubt whether the matter at issue entirely merited them. After all, the question at issue was only, to repeat myself, whether Sir John Donald Makgill, the 12th Baronet, is entitled to succeed as third Viscount in 1977 to his collateral male ancestor, the second Viscount, who died in 1705.
I have referred to the monetary cost, but I attach far more importance to the fact that these four noble and learned colleagues of ours in this House should have had to devote so much time to a matter of this kind. Much as we all value the opportunity of rendering public service in your Lordships' House I cannot bring myself to believe that the recruitment of one more to our number by the elucidation of antiquated rules of law justifies this labour and expense.
What, then, do I propose? I recommend the repeal of all, or almost all, of this archaic law which Parliament decided in 1707 should not apply in future to any newly-created peerages. The duty of the Committee for Privileges is to state the law as it is, and that we have done with the skilled guidance of our learned colleagues. The duty of the Procedure Committee is to give guidance on the procedure of the House as it is not constituted. Neither committee seems to me appropriate for the task I have in view. I propose the appointment of an appropriately composed committee to decide whether to repeal for the future the whole or part of the archaic peerage law of Scotland applying to Scottish peerages which were created prior to the Act of Union of 1707, and I would give them power to make any appropriate recommendations regarding the con- 900 temporary peerage law of the United Kingdom; I add that out of regard for Scottish national sensitivity.
The appointment of such a committee as I recommend would not be a novel departure. The Sumner Committee of 1926, although not an exact precedent, is certainly relevant. Your Lordships' House then appointed a Select Committee to inquire into the subject of English peerages in abeyance. The increasing number of petitions that ancient peerages should be called out of abeyance was threatening to become an excessive burden on the Committee for Privileges, and the law and usage on the subject was unsatisfactory. The Committee's first and unanimous recommendation was:No abeyance should be terminated, the first commencement of which occurred more than 100 years before the presentation of the petition".In recent years your Lordships have not been averse from abolishing inappropriate or antiquated rules such as that requiring a Peer accused of crime to he tried by his peers. If, in discussing a normal Scottish peerage law of former times, I have in any way fallen into error of detail, that does not affect my general recommendation that it should he authoritatively and critically reviewed to bring it into harmony with modern conditions and thought, and that a committee should be appointed to consider this matter.
§ 3.18 p.m.
§ Lord KEITH of KINKEL
My Lords, having sat for so short a time in your Lordships' House, it is with considerable diffidence that I venture to bring before you some considerations which may be relevant to your Lordships' deliberations on the proposal of the noble Lord, Lord Molson. First of all, I suggest it is desirable to understand the nature of a Scottish peerage. It is a species of heritable property which descends to heirs according to the canons which, in the law of Scotland, are appropriate to the descent of any kind of heritable property, and of course your Lordships will appreciate that land is the most important kind of heritable property.
Unless a peerage of Scotland become extinct, which means that all the heirs have definitively died out, or unless it is attainted—and various Scottish peerages have been attainted by reason of the 901 holders being Jacobites—the peerage is always vested in somebody. The peerage may be dormant, but it cannot be in abeyance, an expression which fell from Lord Molson. Abeyance is a concept which, as I understand it, is peculiar to baronies by Writ in England, which is a subject I would respectfully think very much more archaic and obscure than anything which appertains to a peerage of Scotland.
The result is that, the peerage being vested in someone, it always exists, but any succeeding peer can exercise it only on establishing his right to the title. One result of this is, of course, that when the right is ultimately established, with all those intervening heirs who may have existed (Viscounts or Earls as it may be) the claimant to this present Viscountcy of Oxfuird is not the third Viscount of Oxfuird, but the twelfth Viscount of Oxfuird, just as the noble Earl, Lord Dundee, whom I see is present today, having established his claim, became not the second Earl of Dundee, but the eleventh Earl.
Very often a succeeding Peer may easily establish his title, for example, where the last Peer was his father. It may be difficult, as where the last holder of the peerage was a remote kinsman, and it may also be difficult, as it was in the Viscount of Oxfuird's case, where the last holder of the title died a long time ago. But the principles governing the succession and the claim in all these cases are the same, and it would be difficult, I would suggest, to interfere with one particular claim without interfering with all.
As regards procedure for claiming, in a simple case the normal procedure is for the succeeding heir to meticulate the arms of the peerage with the Lord Lyon at his Court in Edinburgh. The Lord Lyon is a judge, his Court is a court of law, and his decisions may be appealed to the Court of Session, and thence to the House of Lords. But at all events, in all simple cases of succession to Scottish peerages, it is the procedure before the Lord Lyon which establishes the right. The arms having been meticulated by the Lyon, the Writ to Parliament follows automatically. But there may be complicated and difficult cases. Every application has to be served on the Lord Advocate and, if he thinks it appropriate, 902 he may require that a petition be addressed to the Crown, and then the matter comes before the Committee for Privileges, which is what happened in the Oxfuird case. The reason why the Oxfuird case was complicated was not so much because of the law, or because of a lapse of time, but because the matter had been brought before the Committee for Privileges in 1735 by an earlier claimant, and I think that I am right in saying that it was that circumstance which caused the present petition to the Crown to be presented by the claimant.
My Lords, the law on this problem is not an arcane one. It is entirely clear to those who are instructed and experienced in the law of Scotland about heritable property, and I suggest that it is a body of law which could not be repealed, as is suggested by the noble Lord, without upsetting the whole basis of Scots peerage law. It would be possible perhaps to introduce by Act of Parliament some form of prescription of peerages, a species of limitation, but that would be an exception to the basic principle of Scots law that heritable rights never prescribe. There is this consideration, too, my Lords: that having in view that every peerage not extinct or attainted is vested in someone, even though he does not at present receive a Writ to attend, to introduce this prescription would involve taking away vested rights, and I do not think that this is a principle which is readily accepted in any Act of Parliament, at least not without some compensation being provided for.
There is another consideration which arises in relation to the suggestion that such a prescription might be introduced; that is, that the Treaty and Act of Union of course was passed upon the faith of the continuance of that body of peerage law among other private laws of Scotland. Under Article 18 of the Treaty of Union it is provided that the laws of Scotland which concern private right are only to be altered by the United Kingdom Parliament for the,evident utility of the subjects within Scotland".I do not suggest that that is a legal obstacle to any such act, but it is a matter which would appropriately be considered if the matter were ever to come seriously to reform.
903 I should say a few words about the matter of attainder. As I mentioned, there are a number of peerages of Scotland in attainder because the holders were Jacobites once upon a time. The procedure with these, as I understand it, is that the attainder may be lifted by the heir to the peerage obtaining a private Act of Parliament. The Sovereign, it is thought, would assent to such an Act, because when George IV visited Edinburgh in 1822 he promised Walter Scott that this would be done. There are some significant peerages in attainder. The most significant is that of Earl Marshal. Once upon a time there was an Earl Marshal of Scotland. He was attainted for being a Jacobite. The last Earl died about 1780, and there has been no Earl Marshal since. It would perhaps be sad, from some points of view, if the possibility of an Earl eventually emerging and being recognised in that great Office of Scotland should be permanently removed.
My Lords, it is perhaps desirable that the whole matter should be put in some kind of perspective numerically. Upon the Roll of the Peers of Scotland at the time of the Union there appeared 154 names; of these 29 peerages are now extinct. Those dormant, according to my information, number 19, and it is likely that eight of these are indeed extinct. So perhaps there are 11 dormant peerages that will not have to be seriously considered. There are nine attainted peerages. I do not guarantee the accuracy of these figures, my Lords, but they are I think reasonably so. Another matter to be kept in mind is that during this century there have been, to the best of my knowledge, only two Scottish peerages claimed before the Committee for Privileges. One is that of Dundee, which I have already mentioned, and the other is that of Oxfuird. So that is two claims in the course of nearly 80 years.
The matter of expense has been mentioned. I would respectfully suggest that the question of the expense has to be viewed in perspective in relation to the total costs of running your Lordships' House. I would suggest that it is not a fair yardstick to take a proportion of the salaries of the law Lords over a year, or even two and a half days. The proper 904 comparison, I would respectfully suggest, is to consider the time spent over the last 77 years on the two claims which arose during that period, in relation to the total time spent by the Lords of Appeal in their judicial duties.
When one is considering the matter of expense, also it is desirable to consider the possible expense of a Committee such as the noble Lord, Lord Molson, has proposed, and how the cost of such a Committee—and we know what committees can be like these days—would compare with the cost of the likely claims to peerages over the next 80 years. Finally, if a public general Act were to be passed to deal with this matter, might it not be relevant to consider the cost of such a public general Act—the printing, and the time and the trouble—when that is related to the cost of the likely claims to peerages over the next 80 years? I detected in the speech of the noble Lord some feeling of condolence that I and my colleagues had to consider this particular matter. I should simply say that, so far as I personally was concerned. I found the hearing of this petition of the greatest interest from the point of view of the law, and also from the point of view of Scottish history and tradition.
§ 3.30 p.m.
My Lords, it is a very great pleasure to congratulate the noble Lord, Lord Keith of Kinkel, on his maiden speech and his lucid and interesting description of Scottish peerage law. It was his advice and expertise and that of his noble colleague, Lord Fraser of Tullybelton, which guided us who are neither lawyers, Scottish or otherwise, on the Committee. I always enjoy hearing lawyers speak. They are so clear, so lucid, and in spite of sometimes being long-winded they are so succinct. I hope we shall hear a great deal more of the noble Lord in this House and that he will not always be in Scotland.
As did the noble Lord, Lord Molson, I concur with the noble and learned law Lords who sat on the Committee, and I defer to their judgment. I am bound to say that I was surprised when they came to the decision they did and that they were unanimous. I felt that the whole case was riddled with uncertainties and that the uncertainties were such that I could 905 not find my way through them. In spite of what the noble Lord has just said about the technicalities of Scottish peerage law, I found it very difficult. But then I do not know the law, nor do I know the law of evidence so it is not for me to question their opinion on those grounds. Nor, indeed, do I question the opinion of the Committee in which I concurred at the time and in which I still concur and do not in any way repudiate.
Nevertheless, there are certain things that I feel ought to be said about the reviving of peerages which have been either dormant so long, as in this case, or indeed in abeyance, which this one is not. As both the noble Lords, Lord Molson and Lord Keith, told us, the system of devolution of Scottish peerages before the union is different from the way we deal with our own. I dare say it is no more absurd than the hereditary system as we practise it. The claim that we are debating today is not an hereditary one. There is not one drop of the original Peer's blood in the present claimant, so it is not in any sense hereditary. I can see the logic of this kind of system that prevailed in Scotland before 1707. The logic was that it was easier for a family to find the right man to promote its fortunes by that system than by the hereditary one. It was easier to do it that way than by primogeniture. Indeed, noble Lords will be only too well aware of Tennyson's famous line on primogeniture:The tenth transmitter of a foolish face".Clearly that system led to abuses—indeed, what system does not? But were the abuses any worse under the Scottish system than they were under the English.
I should like to look at some of what have come to be regarded as scandalous appointments of the past, and I start with Pitt's peerages at the end of the 18th century. This time we are talking about Irish peerages. They were only Irish in a technical sense in that they enabled Pitt to reward his English friends without too much opposition from the existing Peerage (because they did not sit in your Lordships' House) and without too much public outrage. I can speak with some knowledge because I am one of Pitt's Irish peers. What were the qualifications to be such—or perhaps I should say what were the disqualifications? I cannot remember them all but I know that third-rate squires 906 was one of the categories regarded as scandalous. I am holding my own, so to speak.
Noble Lords will also be familiar with the remark attributed to George III:I cannot make you a gentleman but I will make you an Irish peer".In Georges III's reign started the business of calling peerages out of abeyance and that reached its apogee in the first four years of Queen Victoria's reign. I know that we are not talking about abeyance but about dormancy of peerages, but what I am trying to establish is cognate. In the first four years of Queen Victoria's reign several baronies supposedly by writ—the noble Lord, Lord Keith, mentioned that—which in the words of J. H. Round, the eminent medievalist, historically speaking never existed, were called out of abeyance. This is what the editor of the Complete Peerage said about one of them—and may I quote:That an individual who represents an unknown fraction of a barony which never existed, a barony which even on the most favourable representation has been unheard of for five and a half centuries should be given the precedence of the beginning of the 14th century at the expense of most of the barons of the Realm, is an outrage which the House of Lords may be expected to resent".That is pretty strong stuff. Disraeli poured ridicule upon it in Sybil, and may I read the passage out of Sybil written in 1845, after the scandals reached their maximum. This is Mr. Hatton speaking, the famous peerage lawyer of the Inner Temple. He explains here how he can make a peer, adding:You would like to be a peer. Well you are really Lord Vavaseur, but there is a difficulty in establishing your undoubted right, from the single-writ-of-summons difficulty. Your claim on the barony of Lovel is very good; I could recommend your pursuing it, did not another, more inviting still present itself. In a word, if you wish to be Lord Bardolph, I will undertake to make you so… will give you precedence over every peer on the roll, except three (and I made those) and it will not cost you a paltry £20,000 or £30,000".I think those two quotations speak for themselves. I think the ridicule poured upon it by Disraeli stopped the scandal of the traffic in peerages for quite a bit. But it re-emerged in the early years of George V, Promotion of Peerage by Syndicate—again these are the words of the editor of the Complete Peerage. We follow that with scandalous appointments of Lloyd George and his go-between Maundy Gregory.
907 There is a story that some noble Lords may know. I cannot date it but it might be during the reign of Charles II who made Peeresses of so many of his mistresses. The story goes that a certain First Lord of the Treasury said of his successor who was reputed to be trying to emulate Charles II:It takes great courage to give your mistress a peerage; if I had done it my wife would have been furious".He did not add that he had made his own wife's lover a peer. This is to show that the influence of women is just as bad as English men and Scottish men in scandalous appointments.
I will illustrate the contemporary scene, not with scandalous appointments but with a single scandalous disappointment. We have it on the authority of a well-known journalist that when he was asked why he was not given a peerage he said: "I cannot dance, I cannot sing, I cannot do imitations".
My Lords, the point I am trying to make is that, even though the peerage we are debating, revived from 10 generations ago or thereabouts, stands up to the evidence available, and although its succession is no more absurd, as I said before, than our hereditary successions, nor, indeed, is scandalous, nevertheless I am inclined to agree with the noble Lord, Lord Molson, that it may possibly be that it is no longer in the public interest that this sort of traffic (I used that word before) in peerages should go on. There are still some—and the noble Lord, Lord Keith, referred to this—Scotch peerages, pre-1707, which might be subject to this same procedure, and there are no doubt many English baronies by writ in abeyance for many generations which could be called out. I wonder whether it is not time to end this business now.
§ 3.41 p.m.
§ Lord FRASER of TULLYBELTON
My Lords, the noble Lord, Lord Molson, was good enough to send me in advance a draft of what he was intending to say today, and I have had time to consider it. I should like, if I may, in disagreeing with him, to follow through the points which he raised, and briefly to say why, in my view, they are not points which should commend themselves to your Lordships. 908 In the first place, he referred to the pre-Union Scottish peerage law as enjoying a phantom existence and as coming into existence from the tomb to embarrass those who are now alive. I do not know about the noble Lord, Lord Molson, but so far as I am concerned it does not embarrass me in the least, and I do not see why it should do so.
If I may say so with great respect, I think that this really represents a fundamental misreading of the situation. The position is that there are now in existence a number of Scottish pre-Union peerages which are held by living, ascertained persons, and all the people who hold those peerages do so because of what was laid down or existed in the pre-Union Scottish period law. That law is actively in effect to this day. There are something over 100 holders of such peerages, and they hold those peerages by virtue of this law, which is in full vigour and effect. It is only very occasionally that a difficult question with regard to that law arises. One of them arose in the present, Oxfuird case; another one, or possibly one or two others, arose in the case of the noble Earl, Lord Dundee, about 25 years ago. But, my Lords, any branch of the law which raises a difficult and awkward point for decision only once in 25 years is not doing too badly.
To pass to the next criticism made by the noble Lord, Lord Molson, he referred to the public expense involved. The main item of ascertained and public expense was about £5,600 for the taking of shorthand notes, printing and publishing. I understand that arrangements have been made, or are in course of being made, so that in future the proceedings of the Committee for Privileges when dealing with this sort of matter would not be printed. The main part of the £5,600 in this case was £5,000 for printing, so if printing were done away with in this connection the greater part of the expense would be saved.
The noble Lord was kind enough to refer to the time spent on this case by the Law Officers and by some of the Law Lords who were sitting at the hearing. My Lords, unfortunately, that involved no extra expense to the public, because Law Lords and Law Officers are not paid overtime. All that happened, at the highest, was that the productivity of some of those persons was slightly increased. 909 I think that it would be unbecoming for me to suggest that our increased productivity was a great public benefit, but I believe that I may fairly say that it did no great public harm. I therefore suggest that that is really not a good reason for changing the law in this regard. However, if it were seriously felt that an undue expenditure of time by people who ought to be otherwise employed was involved in this, then I would suggest, as I think my noble and learned friend Lord Keith mentioned, that that could he dealt with by remitting the matter for inquiry to the Court of the Lord Lyon. Lyon already deals with uncontested claims to peerages raising no particular complications, and there have been at least two such cases within the last 30 or 40 years. Lyon disposed of them without difficulty. If it were desired to save expense and to save the time of this House, it could be done by remitting such matters to the Lord Lyon.
The noble Lord, Lord Molson, referred to the suggestion that the archaic law in this matter might be repealed. I do not think he intended that in a technical sense, hut, of course, there is really no question of repealing anything. There is no Act of the Scottish Parliament and no single isolated piece of law which could be repealed which would make any difference here. After all, the validity of what was done in 1651 in the case of the Oxfuird peerage case, or in 1705—another important date in this case—under the then existing law is good or bad once and for all under that law, and nothing we could do now by repealing that law would make any difference to the legality or illegality of what was then done. There is really no question of repealing the law. What is wanted by the noble Lord, I think, is that the law should be changed in some retrospective way, and that seems to me to be a very dangerous and difficult exercise on which to embark.
Finally, my Lords, some reference was made to the Sumner Committee of 1926. In 1926, the Sumner Committee was dealing only with peerages which were in abeyance, and, as my noble and learned friend Lord Keith has mentioned. peerages in abeyance mean peerages to which there is no person known to be presently entitled. When a Peer dies leaving two or more daughters in England, in certain cases the peerage will go into abeyance 910 because there are co-heirs (or, as I would prefer to say, heirs portioners) no one of whom is entitled to the peerage. That was the problem that the Sumner Committee was dealing with; and it follows that when someone asks for a peerage to be called out of abeyance he is not demanding a right, he is asking the favour that, because he has arranged with the other people involved and interested in the peerage, it may be called out of abeyance. But the matter of a peerage which is dormant, such as the Oxfuird peerage, is entirely different. Unless the peerage is extinct altogether, there is some individual who is entitled to it as of right, and if he can assert his right then he is entitled to have his right sustained and to be summoned to sit in your Lordships' House. It is an entirely different position, therefore, between peerages in abeyance and peerages, such as this, which are dormant.
My Lords, there is one other rather important matter. The Sumner Committee, dealing with peerages in abeyance, was dealing with peerages based upon a writ of summons followed by attendance in Parliament. There was considerable doubt historically whether the people who had been summoned in that way to attend in Parliament were entitled to an hereditary peerage at all, and one of the main reasons for the Sumner Committee's recommendation was that they knew that, historically speaking, there was grave doubt whether these really were hereditary peerages which would entitle anyone, at the present day, to a seat in this House at all. That is certainly not the case with a peerage such as the Oxfuird peerage, which has been merely dormant.
It seems to me that to deprive a small group of persons—there cannot be more than, at the most, a dozen or so in the world who might bring forward a claim like this again—of what is already a vested right, if they are able to prove it, without compensation and without any very good reason would be entirely wrong. If this were done as part of a general reorganisation of the structure of your Lordships' House, then it might be acceptable and proper, but no such general reorganisation is contemplated in this matter; it would merely be for the convenience of a few people that a small number of persons who have a right should have it 911 taken away from them without compensation. That is a principle which, humbly, appears to me to be most objectionable, and for that reason I cannot avoid opposing the proposals made by the noble Lord, Lord Molson.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, the Question before the House is, unless I am mistaken, that we agree with the report of the Committee. I am just wondering whether after these fascinating and learned speeches we are not in a position to agree to that Motion.
§ The Earl of DUNDEE
My Lords, I am quite willing not to speak if my noble and learned friend would prefer it. In any case, I think the course of the debate has made it possible for me to be very brief indeed. My noble friend Lord Molson, although he is not a Scotsman by birth, has been wise enough to acquire a very beautiful Scottish home in the southern extremities of the Border country where I have more than once had the privilege of staying as the guest of my noble friend. I know that he takes a very deep and wide interest in many Scottish affairs, including both agriculture and forestry. He told us a few minutes ago about the interest which he is now taking in the history and law affecting the Scottish peerage. I hope that he will continue in this interesting study because he will surely agree that he is not yet able to have acquired as much knowledge as he will in a few years' time.
I thought towards the end of his speech that, as the noble Lord on the Cross Benches has just pointed out, he was confusing the ancient baronies which go into abeyance with the dormancy of other peerages. There is no similarity whatever between the two. One is caused by the heirs being stripped, stretched, among a number of females who can, if they choose, make an agreement on which they may present a petition for the barony to be brought out of abeyance. That may or may not be granted. That has been limited to 100 years, and that is entirely different from claiming a right to an English or Scottish peerage which has not fallen into abeyance but which is dormant possibly owing to some historical injustice which, for various reasons, has not yet been put right Surely that is what our whole system of law is for. Surely it is 912 not in the interests of justice that we should compare the expense of administering one piece of justice with the importance of the subject itself. It is just as important, if justice is to be preserved in our society, that the most trivial wrongs should be redressed even at a high price; and it will not be at all a good thing or in the interests of justice that we should so arrange our legal affairs that very serious and important cases cost a great deal of money while unimportant ones cost very little.
My Lords, the whole subject is one which, in my submission rests on the execution of justice. When the Sovereign creates a peerage—if it is not a life peerage —the Sovereign usually accompanies the patent of peerage with a destination directing who and in what order shall he the successors to that peerage; and that is intended to last not for 100 years but for all time. If in the course of history the succession should be unjustly and wrongfully interfered with, then it may take a very long time to put it right for all kinds of reasons.
My Lords, in my own case when the Duke of Lauderdale was the ruler of Scotland and when he appropriated all our family estates and deprived us of everything, he tore the patent of the Earldom of Dundee and the Viscountcy of Dudhope out of the Great Seal Register and burnt them. And it takes an awfully long time—if you find a copy in the British Museum it may take years and years to prove, or to make sure that you will he able to convince a Committee of your Lordships' House, that that copy is a genuine one and that it correctly represents the original.
In the case of this peerage which your Lordships are now proving, one reason why it took such a terribly long time was that in 1735 an English Lord Chancellor got up and said that he had not the slightest idea of what was meant by, "heirs male whatsoever" in Scottish law. You really cannot blame the system if, owing to the ignorance of the Lord Chancellor, justice is still not done 40 or 50 years after the injustice has been perpetrated. As it is, we have had to wait another 240 years before justice has been done. Whatever the nature of the question may be, and however many mistakes Lord Chancellors may make, that must not be allowed to persuade us to countenance injustice.
913 As to the means of obtaining justice, my noble friend has suggested that we ought not to have a Committee for Privileges any longer. That is entirely a question for your Lordships to decide: if you think it is a waste of time to have such a Committee, I would say that probably most people in Scotland would be quite satisfied if cases of this kind were judged by the Lyon Court. Of course, that might mean if there were more than one claimant or if a disappointed single claimant should decide to appeal, that it would go on from the Lyon Court to the Court of Session and then possibly to the House of Lords—not the whole House but the House of Lords as a judicial Court of Appeal; not sitting as a Committee for Privileges but sitting with the Law Lords as Appeal Judges. That might happen and it might not save so very much time after all. But I think that, if any of your Lordships really feel that it is not justifiable to spend money on having a Committee for Privileges, justice could be done in this way through using the Lyon Court as a court of first instance.
But, in fact, I am not sure that the Committee which my noble friend Lord Molson suggested might not cost an awful lot more to set up and to do its work than the Committee for Privileges now costs and I think that it really ought not to be a question of money. It is a question of carrying out our duty, and seeing that, under our laws justice is done, and injustice is corrected.
§ 4 p.m.
§ Viscount DILHORNE
My Lords, the noble Lord, Lord Henley, said in the course of his speech that he was surprised that the Lords of Appeal who sat on the Committee for Privileges were unanimous. He will not be surprised to hear that that unanimity has now disappeared, not with the result of questioning the conclusions of that Committee, but in relation to some of the observations that have been made in the course of the debate today. Although I hope that it will not arouse the ire of the noble and learned Lord, Lord Hailsham of Saint Marylebone, some of the things that have been said call for an immediate reply, and consideration of the report of the Committee gives the opportunity for making some observations with regard thereto.
914 May I say first of all, regarding the suggestion of my noble and learned friend Lord Fraser of Tullybelton, and the noble Earl, Lord Dundee, that claims to Scottish peerages should be dealt with and decided by the law of Lyon, that I would oppose that very strongly indeed. We are not here considering just the right to a title; this House has to consider admission to this House and membership of this House.
§ The Earl of DUNDEE
My Lords, may I interrupt the noble and learned Viscount? I only suggested that as an alternative to the Committee for Privileges procedure if this House decided that that was not a good procedure to go on with.
§ Viscount DILHORNE
My Lords, I am utterly opposed to that alternative. I hope that I have made that clear. Before 1963 there were 16 representative Scottish Peers; now anyone admitted to the Scottish peerage becomes a Member of this House and is entitled to attend here. That to me makes a material change in the situation.
I do not agree with every word that fell from the lips of the noble Lord, Lord Molson; but I agree with him that this claim, which has succeeded, indicates that further consideration should be given to any future claims of this character. I would not suggest for one moment that the law pre-1707 should be repealed; that is unnecessary. In this particular case, the petitioner overcame all the difficulties that confronted him, and I congratulate him on that. Although there have been statements to the effect that this peerage was dormant and not extinct, for 272 years there has been no one who proved his title to it. One might have concluded from that lapse of time that it had become extinct. Of course it is true to say that if it is not extinct, it is dormant; but it is not true to say that in those 272 years it was vested in anyone, for there was no holder of that title.
The petitioner will be the third holder of the title. The second Viscount's daughter had a son named Robert. In this connection, I should like to correct something that the noble Lord, Lord Molson, said. It was Robert who was allowed to vote at the election of a Scottish representative Peer, not the ancestor of the present petitioner. If the conclusion of this Committee is accepted 915 that vote should not have been given. Indeed, if the conclusion of this Committee had been accepted and the same material was before the Committee for Privileges in 1735, that Committee came to a wrong conclusion. As the noble Lord, Lord Molson, pointed out, the petitioner's claim is not as a descendant of the original Viscount; it is because he has descended from the original Viscount's great grandfather.
My Lords, he is entitled to succeed. His success may encourage others to put forward similar claims. We have been told about the number of Scottish peerages which might be claimed. There might also be English ones, claimed not because of descent from the great grandfather of the original Peer, but because of descent from an even earlier common ancestor. Is that really something that should go on? I venture to doubt whether it should. When we came to consider peerages in abeyance, to which reference has been made—and that doctrine about revival of abeyances applied only to baronies—after the Sumner Report I think it was this House that decided not to entertain claims for peerages which had been in abeyance for more than a hundred years. That meant that certainly English peerages which had been in abeyance could not have been revived after that time.
Surely it is very anomalous indeed, my Lords, that while you cannot revive a peerage which has been in abeyance for a hundred years, you can revive a viscountcy of which there has been no vested holder recognised as such for 272 years. I think that the time has come, bearing in mind that membership of this House is concerned—and I know there can be many arguments about the hereditary principle, but this is not the time to advance them—when this House should consider that the rule which has applied regarding abeyances, should be applied in relation to all other peerage claims; namely, that they should not be entertained after the lapse of a hundred years.
§ 4.6 p.m.
§ The Earl of PERTH
My Lords, I will speak very briefly in the light of what the noble and learned Lord, Lord Hailsham of Saint Marylebone, properly said, that we should get on with this business. But I feel, listening to the whole case, that 916 here we almost have England versus Scotland. I do not want that situation. Only two people have come out in favour of the noble Lord, Lord Molson, the noble Lord himself and the noble and learned Viscount, Lord Dilhorne. As I understand the noble and learned Viscount. he has said that abeyance and dormancy should be the same. The fact is that they are not. The Scottish law is a different one to that of England. My Lords, to hit at the Scottish law is very dangerous, bearing in mind particularly the Act of Union. Had we made this change 40 years ago, the noble Earl, Lord Dundee, would not have been here at all, and we all should have been the poorer.
The noble Lord, Lord Molson, talked about this matter on an expense basis. The noble and learned Lord, Lord Keith of Kinkel, made an admirable maiden speech; and we have heard from the noble and learned Lord, Lord Fraser of Tullybelton, that the situation is not what it seems, that they are going to get rid of the printing and that undoubtedly, if a Committee were to be set up as proposed by the noble Lord, Lord Molson, that is a certain expense, whereas the other matters are uncertain and minimal. I hope that we can go ahead and accept the report and not follow up what the noble Lord. Lord Molson, has proposed.
§ 4.8 p.m.
§ The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)
My Lords, acknowledging that the House wants to get on with other business, may I be permitted to say a few words. First, I should like to join other noble Lords in congratulating the noble and learned Lord, Lord Keith of Kinkel, on his maiden speech. He was a most distinguished colleague of mine at the Scottish Bar. I recall making my own maiden speech on a subject which hardly rivals this for popular interest: it was the Second Reading of the Electricity (Financial Provisions) (Scotland) Bill. I am happy to sec that he chose a subject with a greater popular appeal and has thus been assured of a larger and certainly appreciative audience.
Because of the erudition of the speeches to which we have listened, I am relieved from describing the ancient Scottish law of peerages. I want to say only a few 917 words about it: it is an amalgam first of the law of heritable or real property; secondly, of the law of inheritance and succession; and thirdly, of the special rules which relate only to peerages, and which reflect their creation by and direct links with the Sovereign. It is particularly in areas of law such as land law and succession that the law of Scotland is markedly different from that of other parts of the United Kingdom. I suggest it is important to bear this amalgam in mind when talking about repealing the ancient law.
The noble Lord, Lord Molson, has likened the ancient Scots law of peerages to a ghost coming from the tomb to embarrass the living. If that is so, it is not the only ghost which is in the tomb and makes occasional sorties. As the noble Lord, Lord Henley, has illustrated, the English law of peerages is equally obscure and complex. Let me give just one statistic which we have not yet heard. In the last half-century your Lordships' Committee have been engaged in considering the merits of this type of claim (eight in all) for a total of 25½ days, including 14½ days spent on the Scottish cases. Your Lordships may well wonder whether an average of one half-day per year on all peerage claims, and less than one-third of a day per year on Scottish claims, justifies the time and expense of mounting now a thorough inquiry into the matter, to be followed presumably by legislation. Indeed, as the noble and learned Lord, Lord Hailsham, has suggested—and I acknowledge this—even today's debate costs time and money.
I have given these figures for a 50-year period, because that is the period which has elapsed since the Sumner Committee reported. As has been said, under Scots law a peerage does not fall into abeyance as it does in England. This is a case of a dormant peerage and, as several speakers have made clear, it therefore involves a question of vested right. Accordingly, any recommendations from any committee of inquiry set up to investigate what might he clone about the law and practice concerning claims to long-dormant Scottish peerages could well involve the termination or restriction of vested rights and, as such, could probably only be implemented by legislation. I shudder to think of the time and expense involved 918 in preparing and, indeed, debating such legislation.
Such an inquiry as proposed by the noble Lord, Lord Molson, and such legislation as might ensue, dealing with these questions, not only would give rise to questions of considerable legal complexity and constitutional importance, but would also not easily be distinguished from an inquiry into the whole question of the constitutional future of the House of Lords, its powers and composition. This House does not require to deal with these questions at this time.
§ Several noble Lords: Hear, hear!
§ Lord McCLUSKEY
My Lords, there is no formal Motion before the House other than the Motion to approve the Committee's recommendation in the Oxfuird claim. Having regard to the real size of the problem over a period of many years, I am bound to say, the proposal put by the noble Lord, Lord Molson, looks a little like a sledgehammer designed to crack a nut. However, Ministers are sympathetic to the underlying concern. They will study the debate and any further initiatives that may arise after your Lordships have reflected upon this debate, and they will see what can be done to further and promote the object which they certainly share with the noble Lords, Lord Molson and Lord Henley, and with the noble and learned Viscount, Lord Dilhorne; namely, that of reducing the waste of time and expense involved in these unduly complex procedures.
§ Lord WILBERFORCE
My Lords, there being no opposition to the Motion, I respectfully commend it to the House.
§ On Question, Motion agreed to.