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Volume 203: debated on Monday 18 July 1870

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Order for Committee read.

said, he wished to call attention to some of the provisions of this Bill—which, he might remark, was not printed and circulated till the 10th of July, and there had consequently been very little time to consider its provisions, which affected the interests of numerous localities in Scotland. The object of the Bill was to unite certain sheriffdoms in Scotland. That object received the approval of the Judicature Commissioners appointed in 1868. So far as this Bill dealt with the sheriffdoms he agreed to its necessity; but the Bill further proceeded to deal with certain questions connected with sheriffs-substitute and sheriff-clerks. He thought they were not at that moment in a position to deal with these latter questions; and in fact he thought it would be necessary to introduce a Bill next Session for the purpose of regulating various matters connected with those officials. He thought, therefore, that these clauses had much better be postponed until they could deal with the whole question as to the forms of procedure and the officers connected with the Sheriff Courts.

said, it had become most important for the Government to consider how the number of sheriffs-principal and substitute might be diminished with advantage to the public service. There were certain vacancies which required to be filled up at once; but with regard to the question of sheriffs-substitute he agreed with the right hon. and learned Member (Mr. Gordon) as to the propriety of that question, which was the more important of the two, being dealt with in another Session. He thought the general question was of too great magnitude to be dealt with at that period of the Session. He quite agreed that the question should be postponed until the Report of the Commission on Scotch Judicature had been made.

said, that this Bill had been kept hanging over them for three months, causing great alarm and agitation; and now that it had been presented they had had only a few days allowed for consideration; and the Report of the Commission on Scotch Law had not yet been made. This had given great offence in Scotland. He hoped the Government would consent to confine legislation to the union of the sheriffships, as to which there was almost universal agreement.

said, he did not concur in the sentiments of alarm of his hon. Friend. A Bill of this kind was absolutely necessary, and this Bill was conceived in a spirit of great boldness. In regard to sheriffs in Scotland many reforms were absolutely required; and this Bill dealt with some of those reforms in a bold and statesmanlike spirit. The provisions objected to were absolutely necessary. If they were to have an alteration in the sheriffs' jurisdiction, they must, of course, also have an alteration in the jurisdiction of the sheriff-substitute.

said, the only objection he had to the Bill was that it did not go quite far enough; but, as he understood, it would carry out almost to their full extent the recommendations of the Law Commissioners.

Bill considered in Committee.

(In the Committee.)

Clause 1 struck out.

Clauses 2 to 4, inclusive, agreed to.

Clause 5 (County of Linlithgow to be united with the county of Mid-Lothian, and the counties of Clackmannan and Kinross to be united with the county of Fife).

said, he had some Amendments to propose to this clause, the general object of which was that certain counties should be united in accordance with the recommendations of the Scotch Law Commissioners. By the first four clauses certain counties were to be united according to their suggestion; but when they came to Clause 5, a different rule applied with regard to Fife, and instead of providing that there should be a separation of the counties of Linlithgow, Clackmannan, and Kinross, as was recommended by the Commissioners, it provided that whenever a vacancy occurred in the office of the sheriff of Linlithgow, Clackmannan, and Kinross, the said counties should be disunited, and Linlithgow added to Mid-Lothian, and Clackmannan and Kinross united to Fife. The object of his Amendment was that Fife should be united to Clackmannan and Kinross, and that Linlithgow should be added to Mid-Lothian. The object of the Commissioners was to save the salary of any sheriffship which should become vacant, which was to be united to another; and that his Amendment proposed to effect. There was no reason that he could see why these counties should be dealt with on a different principle from others.

said, that the union of the counties proposed by the Bill was based upon the recommendation of the Judicature Commission. Their Report was only presented on the 14th of the present month; but having been a member of the Commission, he had an opportunity of knowing what their Report would be, and he had accordingly prepared this Bill in order to put their recommendations in force as soon as possible. In the unions proposed, the Bill did not follow the recommendations of the Commissioners in all respects, but it substantially followed them: it differed in only two particulars. In the first place, the Commissioners recommended that the existing sheriffships of the counties of Banff and Elgin should remain undisturbed; whereas, by a clause in the Bill, it was proposed, that a vacancy occurring in either county, the county of Banff and Kincardine should be annexed to the county of Aberdeen. The other variance was in regard to the counties of Clackmannan and Kinross. The Commissioners recommended that Clackmannan should be united with the county of Fife—a recommendation which was not favourably received by those most interested, and he had accordingly substituted the union proposed in the Bill. However, since the Bill had been introduced, there had been a strong expression of opinion on the part of the inhabitants of Clackmannan in favour of a union with Stirling in preference to a union with Fife. He was disposed to concur in the reasonableness of their desires, and he had accordingly prepared Amendments to effect a union between Clackmannan and Stirling instead of a union with Fife. With regard to the present Amendment, the substance of his right hon. and learned Friend's complaint was that the Government had not appointed to the sheriffship of Fife the gentleman who now held the office of Sheriff of Clackmannan and Kinross. He did not intend to make the slightest reflection on that learned gentleman; but it was one thing to appoint a sheriff to a larger county, and to put under his jurisdiction a smaller county, and another to appoint a man to a small county, and then place a larger under his authority. He did not conceive it to be any disparagement to the learned gentleman who now held the office of sheriff of the smaller counties referred to to say that he was not altogether the person most likely to be selected by the Government for the Sheriffship of Fife. The course proposed was the same as had been adopted when other large and small counties were to be united—for example, Peebles and Linlithgow were to be added to Edinburgh, not Edinburgh to Peebles or Linlithgow to Edinburgh; Bute to Renfrew, not Renfrew to Bute; and Banff to Inverness, not Inverness to Banff. The Government had proposed that the Sheriffdom of Kinross should, on a vacancy occurring, be annexed to the jurisdiction of the Sheriff of Fife, but not that the Sheriffdom of Fife should, in the event of a vacancy, be annexed to the jurisdiction of the Sheriff of Kinross. In proposing that small should be annexed to large counties, instead of large counties to small ones, the Government had followed both the precedent laid down by the only previous Act relating to the amalgamation of sheriffdoms, but also the dictates of reason and good sense. In conclusion, he begged leave to inform his right hon. and learned Friend that before he (Mr. Gordon) saw this Bill the Sheriffdom of Fife was no longer vacant, and that it was not vacant at the present moment.

said, he had listened to his right hon. and learned Friend's speech with very great regret. It was a most unfortunate thing that steps had been taken to fill up a sheriffdom which was the subject of a recommendation on the part of the Commissioners. With reference to the learned gentleman who filled the office of Sheriff of Linlithgow, Clackmannan, and Kinross, he begged it to be distinctly understood that he did not hold one of the smallest sheriffships in Scotland. He occupied the office formerly filled by that renowned lawyer, Lord Moncreiff, the father of the Lord Justice Clerk; and this gentleman had discharged his duties to the entire satisfaction of those under his jurisdiction. What he complained of was that, in attempting to deal with a vacancy which necessarily fell to be dealt with by this Bill, and which admittedly had existed three months, they were told that the vacancy had been filled up, and that, therefore, they could not carry out the recommendations of the Commissioners for effecting economy. Under these circumstances, he submitted that the Amendment ought to receive the sanction of the Committee.

said, the real question seemed to be, whether the right hon. and learned Gentleman opposite (Mr. Gordon) or Her Majesty's Government should appoint the Sheriff of Fife. A legal gentleman of high standing had been appointed, and he hoped the Committee would support the decision of the Government.

said, the Lord Advocate overlooked the fact that the combined counties of Linlithgow, Clackmannan, and Kinross formed a large sheriffship, and could not well be classed with the small sheriffships of Peebles or Bute. So far from the sheriff of the combined counties not being eligible for such a county as Fife, it was not long since a sheriff of those counties was removed to the County of Perth, one of the important counties of Scotland. This was not a personal matter—it was one of economy—by reducing the number of sheriffs in accordance with the recommendations of the Royal Commissioners. He could not see why the sheriffship of the combined counties should not embrace Fife, Linlithgow being placed under the Sheriff of Edinburgh as provided, thereby rendering a fresh appointment unnecessary. He trusted the Committee would support the reduction of the sheriffs.

inferred from the announcement that the vacancy was filled that the Amendment must fall to the ground; still he could not allow the discussion to close without bearing testimony to the able and efficient way in which the Member for Linlithgowshire—he meant the Sheriff—had discharged his duties. It by no means followed because a man was sheriff of a small county that he was inefficient, and not fit to hold office in a large county; and, indeed, an instance to the contrary had just been cited. If the vacancy had not been filled up he should have supported the Amendment; but as it had been filled up there was no use in continuing the discussion.

said, he must draw attention to the economy of the Government in regard to Scotland. When there was an opportunity of reducing the number of sheriffs by one, they had taken the opportunity of appointing two instead of one. He regretted exceedingly that the discussion had taken a personal turn. The gentleman referred to had been known to him many years, and he had taken a high position in the Courts of Law.

said, the effect of the Amendment, if carried, would be to revoke the appointment of a sheriff already made by the Crown. In making legal appointments, there was something else besides economy to be considered, and, without disparagement to the Sheriff of Clackmannan and Kinross, they felt it necessary to appoint a younger man to be Sheriff of Fife, and one more fit for the special work to be performed. It was with reference to fitness and not solely to economy, that the appointment was made.

said, it was made about a fortnight ago. The fact of the appointment was made public at the time, and when the hon. Member for Fife (Sir Robert Anstruther) put a Question to him on the subject, he stated in detail the course the Government intended to take not only with respect to Fife, but also as regarded other counties.

Amendment negatived.

Clause agreed to.

Clauses 6 to 9, inclusive, agreed to.

Clause 10 (Union of counties to complete as regards jurisdiction, &c. of sheriff, and powers, privileges, &c. of procurators, clerks, and officers of courts).

, in rising to move the omission of the clause, said, that the powers given by this clause and Clause 12 were so large and indefinite as to cause the greatest alarm in those counties affected as to how they would be carried out. While the reduction of the number of sheriffs was generally approved of, the feeling was equally strong that the rights and privileges of the counties proposed to be united by this Bill should be preserved, as in Clause 4 of the Act passed in 1853, Vict. 16 and 17, c. 92, the insertion of which he proposed to move in the Bill. There would be no objection, he thought, to the united counties being divided into districts, with a resident sheriff-substitute in each county town; and when he mentioned that the criminal business devolving on the sheriff-substitute resident in Stonehaven exceeded that of the same officer in Aberdeen and Peterhead, arising from a large portion of such being-done by the municipal magistrates, of whom there were none in Kincardineshire, and that of the 33 counties in Scotland, 22 had fewer trials with jury than that county, the Committee would see, he hoped, that the residence of the sheriff-substitute should be fixed by statute in such a town, but authorizing him to devote a considerable portion of his time to the judicial business of Aberdeenshire. He might also mention that, in several of our county towns, there were recently erected expensive Court-houses, and there was a society of procurators who had settled on the faith of a continuance of a Court there, and that he trusted that the Committee would not, without full consideration, interfere in any manner with the interests of those gentlemen. There was also no allusion to the Commissary Courts; and it was not stated whether the extended jurisdiction of the sheriff and the privileges of the procurators were to extend to those Courts as well as to those of the sheriff. He had every confidence that the Secretary of State for the Home Department would do nothing to interfere with the convenience of all parties, but endeavour to facilitate the administration of justice; however, the recent economical experiments in the Courts of Justice in England naturally made the public nervous as to leaving such powers, as given by these clauses, in the hands of Government free from all Parliamentary control. This Bill respected the rights of sheriffs, and, by a new clause, the Lord Advocate took powers to give them increased salaries; but while the sheriffs-substitute had to undertake additional work and to accept of a complete change of the conditions under which they accepted office, there was no provision for increase of remuneration to them. It was acknowledged how necessary it was for the general management of our county business that we should have a resident magistrate in each county town. For these reasons, unless the right hon. Gentleman could propose any mode by which the individuality of the counties affected was preserved, and the convenience and interests of the inhabitants protected, he should go to a Division for the rejection of these clauses.

supported the Amendment, not so much because he thought the clause under discussion would confer objectionable powers, as because the clause would, if passed in conjunction with the clause following it, fail altogether to carry out the wishes of the people of Scotland in relation to the subject-matter of the whole Bill. So far the Bill had dealt with a view of the question upon which the people of Scotland were unanimous — namely, the reduction of the number of sheriffs, and grouping certain counties together. But that Bill took care to preserve the individual jurisdiction of the several counties, and the convenience of the public was considered by the sheriffs going to convenient places in each county and holding Courts in such places as were nearest to the persons having causes to be tried. The present proposal would produce an entirely different state of things, and would act in a manner prejudicial to the general body of the suitors; and therefore if the Government thought it necessary to make such a division of counties as was proposed by the clause, they ought to bring in a separate Act of Parliament for the purpose. He should support the proposition to omit the clause.

Amendment proposed, to leave out Clause 10.—( Mr. Dyce Nicol.)

said, the discussion had turned upon the question of the suppression of certain offices, and he had in the abstract no objection to such suppression, so soon as existing life-interests should have come to an end; but he objected to the proposition of the Bill for the reason that it dealt with the question in far too general a way, and would produce many difficulties in its carrying out. He had expected that the hon. and learned Lord Advocate would have inserted some provision in order to have made his clause more generally acceptable. He thought it would be necessary that there should be a special Bill brought in for the purpose of regulating the proceedings before the Sheriff Courts; and it would follow, as a necessary portion of such Bill, that arrangements should be made with regard to the sheriff-clerks, who would be left on the same footing as that upon which they were left by the Bill of 1863. Great difficulties would arise from the appointment of the three sheriff-clerks—for who could tell for which of the amalgamated counties he was to act? He thought that the Committee should agree to the clauses which had been already passed, and refer the other question to future consideration. The power proposed to be given to the Secretary of State was one which he did not think such an officer ought to possess.

thought it would be unwise to stop the Bill at its present stage, as Clause 10, and that which followed, formed, in his opinion, the most valuable part of the Bill.

said, he was not surprised to hear his hon. Friend the Member for Edinburgh (Mr. M'Laren) approving this portion of the Bill, for his hon. Friend held rather extraordinary views as to the powers of the Government in general. He thought that this was not the time at which to legislate upon this subject. A Commission, appointed two years ago, had taken most voluminous evidence, and had reported thereon to the House, but the Report had not yet been published; and therefore he thought the Bill—or at least these provisions of the Bill—would have been advantageously left till next year, when public opinion and the opinion of the House would have ripened with regard to it.

said, he had quite failed to find in the observations that had been made any real objection to the clause under discussion. A great deal had been said about certain large powers proposed to be given to the Secretary of State and on the subject of a Bill to be introduced in next Session in order to regulate the procedure in Sheriff Courts; but he begged to say that the Bill conferred no power upon the Government, and did not propose to abolish any office whatsoever. The inconvenience arising from the omission of a similar power from the Act passed about 10 years ago had been greatly felt, and he had therefore prepared this clause. The clause was necessary in the interest of the public, and he hoped the Committee would agree to it.

Amendment negatived.

Clause agreed to.

Clause 11 (Courts to be held, and duties to be discharged by sheriffs.)

moved to insert words to provide that sheriffs, whether appointed before or subsequent to the passing of the Act, should be relieved from the duty of attending sessions. The clause, as it stood, was entirely opposed to the recommendations of the Commission, and he wished to restore it to the form so recommended by removing the necessity on the part of sheriffs to attend who were not counsel practising in the Courts in which, as they now stood, they were compelled to attend. The Report made by the Commission in 1834 was favourable to the view which he took; but, at the same time, he thought the question might well be left to come up in the Bill which must be brought forward very early in order to rearrange and readjust the procedure of the Sheriff Courts.

said, he thought the provision as it stood was a salutary one for the reason that it provided for the cases of sheriffs who were not practising barristers, and did not render it compulsory to attend the Courts or to perform an operation very like a forced march through Westminster Hall during the Whole of the time when the Courts were sitting.

said, it was well known that a large number of sheriffs did not practise at the bar, and therefore he did not think it right they should be compelled to attend Courts.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 12 (Courts to be held and duties to be discharged by sheriffs substitute.)

Question put, "That the Clause stand part of the Bill."

The Committee divided:—Ayes 65; Noes 36: Majority 29.

said, he would propose after Clause 6, to insert a new clause (Counties of Wigtown and Kirkcudbright to be united with the County of Dumfries).

Clause brought up and read a first time.

said, he desired to make a suggestion with reference to this clause. At present the counties of Wigtown and Kirkcudbright, in the district of Galloway, formed one sheriffdom, but it was now proposed to unite them with the county of Dumfries in one sheriffdom. He thought a better arrangement might be made by uniting the county of Kirkcudbright to the county of Dumfries, and the county of Wigtown to the county of Ayr. The county of Kirkcudbright and the county of Dumfries had one militia regiment, and they had many other things in common; and the counties of Wigtown and Ayr had also many things in common which Wigtown had not in common with Dumfries. In addition to that he might mention that very recently Her Majesty's Government appointed a noble relative of his to the Lord-Lieutenancy of the county of Ayr, he being already Lord-Lieutenant of the county of Wigtown—the militia regiment, the buildings for the militia, the Lord-Lieutenancy, and various other matters being in common for the two counties. He thought the various local interests would be better considered by uniting Wigtown with Ayr and Kirkcudbright with Dumfries, than by the proposed arrangement which was here suggested. He felt convinced that the best arrangement for public business would be that which he had indicated. Three counties were too much for one sheriff to manage—at election times impossible. It would be inconvenient for him to propose an Amendment to that effect at this stage of the Bill; but if, on further inquiry, the learned Lord Advocate found it convenient and agreeable to make this change, perhaps he would do so on the Report. He believed it would be for the convenience of the inhabitants of that part of the country to make the change.

said, he should be happy to consider the suggestion upon the Report. In the meantime it was proper to state that the union proposed in the clause was that which had been suggested by a Royal Commission.

Remaining clauses agreed to; Bill reported; as amended, to be considered upon Thursday.