HL Deb 15 July 1870 vol 203 cc331-9

Commons' Amendments to Lords' Amendments and Commons' Reasons for disagreeing to some of the Amendments made by the Lords, considered (according to Order).

The said Amendments and Reasons read by the Clerk.

EARL GRANVILLE

hoped that he might be allowed to say a few words as to what had passed in the Commons. He thought the course taken by the other House had, in a great measure, justified that taken by their Lordships; because, since a large number of the Amendments made by their Lordships had been agreed to by the Commons, the natural inference was, that their Lordships had made improvements in the Bill. What the Commons objected to agree to were chiefly clauses that had excited great difference of opinion in their Lordships' House — matters, perhaps, of no very great importance, but which savoured too much of giving a slight advantage to the landlord at the expense of the tenant. The first Motion which he had to make was, that their Lordships should not insist upon an Amendment made at the instance of the noble Duke opposite (the Duke of Richmond) in the scale of compensation, by which £4 was inserted in lieu of £10, and £20 in lieu of £30. Such Amendment, if insisted on, would have the effect of refusing compensation to a large class of tenants in Ireland.

Moved, Not to insist on the Amendments in page 2, lines 31, 32, 33 and 35, to which the Commons have disagreed.

THE DUKE OF RICHMOND

said, that although he should have preferred the scale as altered by their Lordships, he did not think it of sufficient importance to ask their Lordships to insist upon the alteration which they had made. The scale of compensation was more a matter of detail than of principle, and there must be much difference of opinion as to what particular figure should entitle a tenant to compensation. He thought this might be a convenient opportunity for stating what course he should take with reference to the Amendments generally. With regard to the alteration that had been made by their Lordships by substituting 21 years for 31 years as the length of lease that should bar the claim to compensation, that, again, he considered not so much a matter of principle as of opinion; and though he still thought that 21 years was quite sufficient time to enable a tenant to recoup himself, yet he did not think that the matter was of sufficient importance to ask their Lordships to insist upon their Amendment. That, however, was the limit of the concessions that he was able to make. He found that an Amendment had been introduced in the House of Commons, after the Bill had left that House, limiting the right of the landlord to deduct from the compensation paid any arrears of rent not exceeding three years. To this he decidedly objected. He thought it perfectly fair that where a landlord was called upon to make compensation to the tenant, all sums of money that were properly due to him from the tenant should be taken into consideration; but the Amendment made by the House of Commons would prevent this. The landlord might have to pay the tenant compensation amounting to four years' rent, and yet he could not recoup himself to the extent of more than three years' rent, although more were due. Now, this was quite unjust, and therefore he would advise their Lordships not to assent to it. The next point regarded con-acre; as to that there had been an agreement between both sides of the House as to the words to be adopted; and nothing could be more straightforward than the conduct of the Government upon this point. They said that they would not alter the words unless there was a strong opinion to the contrary expressed in the other House. The House of Commons took what he considered a most extraordinary course, and entirely altered what had been previously agreed on, and in so doing had, he thought, made nonsense of the matter. At the same time, he would assent to some of the alterations which had been made in reference to con-acre. As to permissive registration of improvements, he must ask their Lordships to restore the clause to the terms in which it had been agreed to by their Lordships. The only other Amendment of importance which he should ask their Lordships to disagree with was, that by which it was provided that non-payment of rout should not be deemed a disturbance if the Court should decide, on special grounds, that it ought not to be so considered. He must ask their Lordships to insist on the present Amendment.

On Question, Whether to insist? Resolved in the Negative.

Commons' Amendment to insert in page 3, line 13, after ("rent") the words ("not exceeding three years' rent") disagreed to.

Commons' Amendment, relating to the provision respecting conacre amended, and agreed to.

Then it was moved not to insist on the Amendment in page 4, line 1, to which the Commons have disagreed—namely, to leave out ("twenty-one") and insert ("thirty-one").

On Question, Whether to insist? Resolved in the Negative.

Commons' Amendments in clause relating to presumption of improvements agreed to.

Clause "A," (Permissive registration of improvements).

EARL GRANVILLE

recommended that their Lordships agree to the Commons' Amendments in the clause. As the clause now stood, any landlord and tenant who might be desirous of preserving evidence of any improvements made by themselves or either of them, or by their or either of their predecessors in title, before or after the passing of this Bill, might jointly at any time file a schedule in the Landed Estates Court, specifying such improvements and claiming the same accordingly, and such schedule so filed should be evidence that such improvements were made as therein described. He thought the latter part of the clause could have no effect but to promote litigation.

LORD CAIRNS

hoped that whatever shape the clause might take, it would not become law in its present form. The case supposed by the clause was one in which the landlord and tenant were agreed as to who made the improvements—and one might have supposed that that was all that was necessary; yet it provided that they should jointly proceed to Dublin and incur the expenses of employing professional advisers to prepare a schedule. The matter did not end there, because the schedule was to be filed in the Landed Estates Court. The clause stated that the document so filed should be evidence of the contract. It would not be evidence; but it would be the contract itself. He regretted that there was not known to the law of England and Ireland what was known to the law of Scotland—namely, a "declarator"—by means of which questions of fact were so settled that there could be no dispute about them at a future time. This clause, as altered by the House of Commons, would not do that. It provided for registration only in cases where the landlord and tenant jointly wished for it, and agreed in the contract which was to be registered. The landlord who made improvements could not by himself register them, so that the question of fact would be settled for all time. How many lawsuits they would prevent in future by having some record made of improvements while there was some person alive to speak to the facts! The danger was in allowing things to drift along in uncertainty till a future time without having some record now which would avert future litigation.

LORD O'HAGAN

said, he did not like the clause at all. He thought the original position taken by the Government in that House was the true one—namely, to resist that clause altogether. When it was first introduced it was prospective only, and in that form he should have had no objection to it. But it had been made retrospective, and in that form he had the strongest objection to it. There were thousands of tenancies in Ireland where improvements were at this moment going on; and if all at once, when that Bill came into operation, it was made a matter not of choice, but of necessity for every landlord and every tenant to register immediately and challenge his tenant or his landlord, as the case might be, in respect to the right to improvements, they would precipitate the result which it had been predicted would flow from that measure—but predicted, he trusted, erroneously—that it would be the fruitful parent of litigation; whereas it was most desirable that the measure should commence its operation in Ireland and circumstances of mutual kindliness and good-will between landlord and tenant.

THE MARQUESS OF SALISBURY

said, they ought to discourage litigation not only at present, but in the immediate future. He knew the case of a landlord in the South of Ireland who had spent £50,000 in improving his property, and he had no evidence of the improvements except the memory of the people among whom they were made. Those persons were dying out, and in a few years the landlord might have no evidence whatever to prove that he had made the improvements, and he might be called upon to pay his tenant for having made them. But if that clause were passed, as their Lordships had agreed to it, he could go into Court and register his improvements at once. If their Lordships did not adhere to that clause they would practically compel the landlord, where there had been large improvements effected, to evict his tenants in order to have the question of the authorship of those improvements immediately tried.

THE LORD CHANCELLOR

said, he thought his noble and learned Friend (Lord Cairns) had been over severe as to the legal knowledge of the Commons as displayed in this clause. It should be remembered the other House was not wholly without professional assistance on either side when it considered that matter; and while he agreed with the Lord Chancellor for Ireland that it would have been better not to have the clause at all, still, if they were to have it, he saw the use of having it in the form in Which the other House had sent it up to their Lordships. The Amendments of the Commons were very good indeed, because they invited no litigation, but allowed both parties to register together. If there was any advantage in the thing at all it was in letting the parties, when they were perfectly agreed, go into Court, and record that about which there was no dispute.

THE DUKE OF RICHMOND

asked why, if they were quite agreed, the parties should go into Court at all? The supposition was that the landlord and the tenant together drew up a paper respecting the improvements made partly by the one and partly by the other; and that paper would be kept in the landlord's office; and, being agreed to by both parties, they would not want to go into Court. The clause, as passed by their Lordships, would be useful in providing for a register of improvements, which would be evidence at any future time; but as the clause came up from the other House it was perfectly useless, and ought not, therefore, to form part of the Bill. He would move to disagree to the Amendment made by the Commons in Clause A.

On Question? agreed to.

EARL GRANVILLE

, in page 8, line 8, recommended their Lordships not to insist on the Amendment for leaving out from "landlord" to "and" in Clause 8, relative to disturbance. His object was to try to restore that provision in the measure to the form in which it originally came tip to their Lordships. Being all agreed that the tenant should be compensated for his past improvements, he hoped their Lordships would not insist on their Amendment, the effect of which would be that where the rent of a tenant had been so exorbitantly raised that he could not reasonably pay it, he would be debarred from those claims for past improvements which, in ordinary cases, he would be entitled to receive.

THE DUKE OF RICHMOND

said, that if they restored the clause to the form in which it had come up from the Commons, it would lead to very bad results. One man would complain that the season was bad, and, therefore, he could not pay his rent. Another would plead that his cattle had died; another that his pecuniary circumstances had been reduced to a very low ebb, in consequence of illness among his family. These points would be raised all over Ireland, and would be taken before those 33 assistant barristers, who might all form different opinions as to what were or were not special grounds. They were told that this Bill was to bring peace to Ireland; but he could not conceive anything more likely to produce the contrary effect than what was now proposed. The clause as their Lordships had amended it on a former occasion was very much better. In a variety of instances, great injustice might ensue from retaining the words.

LORD O'HAGAN

said, if the chairmen of quarter sessions were not capable of determining what "special grounds" of this kind were, they were scarcely capable of determining other very large points upon which they had an entire discretion. The question was, whether there was not something in the circumstances of Ireland to justify this proposal? It was intended to refer to two classes of cases merely — one in which the tenantry under some exceptional landlords had been kept in a state of coercion, owing to a system of long arrears, extending sometimes to 10 and 15 years; the other in which the rents, altogether exorbitant, had been imposed tinder circumstances of oppression. It had, therefore, been thought well to give the Court the power of softening the oppression under which these tenants laboured not in cases of penalty for non-performance of any particular contract, but of absolute forfeiture. Some such provision was the more necessary since their Lordships had introduced the Amendment with regard to subletting, subdivision, bankruptcy, and insolvency.

LORD CAIRNS

said, his objection to the proposal of the Government was that it was at variance with the whole principle of the Bill from beginning to end. That principle was, that the right to compensation on the part of the tenant should be correlative with the performance of his contract, and that the tenant who had broken the contract and had been removed on that account should not be allowed to say that he had been capriciously disturbed. They had already provided that, as a general rule, eviction for non-payment of rent should not be a disturbance; but the House of Commons had introduced the qualification, unless the Court decided that it ought on special grounds to be so deemed. That was as much as to say that anyone of the 33 assistant barristers might, upon special grounds laid down by himself, decide that eviction for non-payment of rent was a disturbance. The assistant barrister might say—"Parliament has left it to me to determine what are special grounds. Well, this is a bad year, and I will decide that to be special grounds." But then it might be said there was the Court of Appeal. Suppose the case came before that Court, the Judge of Appeal might say—"Parliament has not given me any directions to guide me as to what are special grounds;" and thus one Judge might decide one way and another another. The noble and learned Lord (Lord O'Hagan) had said there were only two classes of cases which would form special grounds. Well, he had himself said from the beginning if those were the only cases, would Her Majesty's Government put them on the face of the clause? He offered that challenge to the Government. Would they put on the face of the clause that eviction for non-payment of rent should not be deemed a disturbance unless upon the ground that the Court thought the rent manifestly exorbitant? He did not say he should vote for the clause if they did; but perhaps their Lordships might be induced to do so. Anything more contrary to principle than the proposal of the Government he could not imagine. It amounted to this—that a tenant was to be allowed to drive away all competitors by promising to pay a particular rent, and then when he came to be evicted for non-payment he was not to be obliged to give up the holding unless the landlord paid him a certain number of years' compensation. Another objection was the uncertainty this proposal would create. The only sound principle was to let the landlord and tenant know before they came into Court what they had to expect. If it were to be a matter of doubt whether the Court would or would not hold that there was a disturbance in any particular case, a landlord who came to an issue with his tenant would not know on what principle the compensation was to be assessed, and the consequence might be that a small landlord would be ruined. He trusted their Lordships would adhere to their Amendment.

THE MARQUESS OF SALISBURY

considered that it would be an enormous breach of faith if this country interfered with those who had purchased property under the Encumbered Estates Act. They had bought in the cheapest market, and they were selling in the dearest by getting the highest possible rents for the farms they had at their disposal. If their Lordships now thought the landlords had too much for their investment, and proposed to take off 10 or 20 per cent, they would be doing that for which they blamed Spain or Mexico, and people would not be induced to buy such property in future.

EARL GRANVILLE

said, he did not understand why a man who purchased a quarter of a century ago was to be in a better position than one who had been in possession of an estate for 300 years, and had up to this time a legal right to all improvements, whether made by himself or his tenants. Words of strong indignation were inconsistent with what had been said on both sides of the House about the justice of giving compensation for improvements.

LORD CAIRNS

admitted that moral justice required that when a tenant had made improvements he ought not to be deprived of them; but there was no moral justice in enabling a tenant to break his contract.

Question put, Whether to insist on the said Amendment? Resolved in the Affirmative.

Then it was moved to insist on the Proviso to Clause 8, to which the Commons have disagreed—namely, That in case of the determination of a tenancy by ejectment for non-payment of rent, the Court may treat such ejectment as disturbance if the arrears did not wholly accrue within the three previous years, and if any earlier arrear remained due from the tenant at the time of commencing the ejectment.

Question put, Whether to insist on the said Proviso? Resolved in the Affirmative.

Committee appointed to prepare reasons to be offered to the Commons for the Lords disagreeing to some of the said amendments: The Committee to meet forthwith: Report from the Committee of the reasons; read, and agreed to; and a message sent to the Commons to return the said Bill, with amendments and reasons.