HL Deb 24 August 1883 vol 283 cc1824-35

Commons reason for disagreeing to Lords further amendment considered (according to order).

The following is the said reason:—

The Commons disagree to the amendment now proposed by the Lords in page 2, line 11, (in lieu of the amendment to which the Commons disagreed) for the following reason: Because all cases to which the proviso will apply are covered by the provisions of clause 6, sub-section (a), and to insert this proviso in clause 2 will he misleading.

LORD CARLINGFORD (LORD PRESIDENT of the COUNCIL)

said, with respect to the only point now at issue between the two Houses, he had to move that the House do not insist upon the further Amendment on Clause 2. The balance of opinion in that House was as nearly as possible equal upon the Amendment, and it was sent back to the other House in a hesitating and accidental fashion. The noble Marquess opposite (the Marquess of Salisbury), had said that he looked with suspicion and jealousy on the 6th clause, to which the Government naturally pointed as meeting the case which his Proviso had in view; that he desired to remove all ambiguity and doubt, and that he therefore desired that his Proviso in the amended form should be adhered to by the House. The Government, of course, had been compelled to look further into the matter, and had again come to the conclusion, under the best legal advice at their disposal, that the dangers the noble Marquess had in his mind were not really to be feared. They believed that no such ambiguity existed, and they were also instructed that to introduce the Proviso would have a very misleading and possibly mischievous effect, and raise serious doubts as to the effect of Clause 6. He, therefore, moved that their Lordships do not insist on the Amendment.

Moved, "Not to insist on the said Amendment."—(The Lord President.)

THE MARQUESS OF SALISBURY

said, he was once again impressed with the fact that the influence of these estimable and valuable Members of their Lordships' House to whom Charles Fox once gave the name of "the Janissaries of the Bed Chamber," increased every hour as they approached the end of the Session. It was very strong on Wednesday last, and it was stronger now. As far as he was concerned he fully recognized that they were his masters, and he, therefore, had no intention of dividing the House, although he had no doubt what the result would be. But he could not allow the Question to be put without calling their Lordships' attention to the case advanced at the present stage of the Bill by the Government and the House of Commons, to the evils it indicated, and to the extreme uncertainty of the Bill. The noble Lord opposite told him that the 6th clause obviated all the evils he feared. As far as a layman could read that clause, he was not the least of the noble Lord's opinion. He had had an opportunity, like the noble Lord, of consulting very high legal authority indeed, and his views were confirmed by that legal authority; so that, at all events, they had a pretty tangle for the Judges to untie. But what he wished to call attention to was the cause of this ambiguity, for which they had not far to seek. It would have been perfectly easy to have made a clear and straightforward Bill, which would have been intelligible and, therefore, acceptable to both sides as avoiding the danger of litigation; but the Government had been afraid to state distinctly what their object and intention was, because they had two sets of people to satisfy. Their object was to pass their Bill without driving on the one side the Radicals to despair, or with- out removing all hope from the Conservatives; and, therefore, they had drawn an ambiguous Bill, which to the unlearned, and probably the learned, judgment conveyed a very doubtful meaning. The noble Lord opposite thought the 6th clause would prevent a tenant who, by implied or express promise, had bound himself to make improvements from claiming compensation for those improvements. He, however, did not agree with the noble Lord; but, even if that were so, he asked why could not the thing have been plainly stated in the Bill? Again, it was very doubtful whether the landlord and tenant were capable of agreeing beforehand with respect to the rate of interest and other matters. The clause was, in fact, utterly ambiguous. The Government contended that the view taken by him was covered by that clause; but why could not a plain and satisfactory statement have been made of what it was desired by the Bill to indicate? Then they had the question of cottage gardens. The Lord Chancellor at first thought they were within the scope of the Bill, but more lately had come to the conclusion that they were not. What security had they that the Judges would not take the last instead of the first of the two strong opinions which the noble and learned Earl had given? Why was it not possible to put a plain statement into the Bill that cottage gardens were not included in its provisions? Then, again, they had the question of a "fair and reasonable compensation." No human being knew what that meant, or whether that clause would include the ordinary agreements in which compensation was measured by the outlay of the tenant, or whether those agreements would be declared contrary to the spirit of the Bill. It would have been perfectly easy to have drawn a plain straightforward Bill that would have given to the tenant the outlay that he had made upon the land, and given it him without doubt or litigation. The evil of that fantastic system of valuing which the Government had adopted, and which had never been tried, and in many cases probably could never be applied, would tend to cause doubts and differences, and would plunge the two parties into litigation, and would impose serious costs upon them. It would, besides, force the landlords to take precautions, and so diminish the good under- standing between the parties which existed at present. He was not making these observations in the interest of the landlord, for, if they took it from that point of view, litigation was the interest of the stronger man, who would in all probability win. The result of the obscurity of this Act, then, would be that it would impose so many charges on the tenant that he would in the end be afraid to appeal to it. His objection to the Bill was this—that, for the sake of satisfying Parliamentary exigencies, ambiguities had been admitted into the Bill, which would bear with oppressive weight on the cultivators of the land, which would baulk them of their just demands, and which, by setting up doubts and differences between landlords and tenants, would tend to multiply precautions by which all that hearty co-operation between the two would be sensibly diminished, and instead of which a spirit of estrangement and jealousy would grow up. He deeply lamented this result, and he held Her Majesty's Government and the Parliamentary exigencies to which they had bowed responsible for it.

THE LORD CHANCELLOR

said, it seemed to him that not for Party or Parliamentary reasons, not for reasons tending to separate and put against each other the two great classes concerned, but for reasons equally relating to the mutual interest of both those classes and tending to diminish difficulty and friction between them, and not to increase it, some such measure as that Bill was necessary. He admitted that the less legislation they had about social relations the better; but when circumstances arose which rendered some legislation of that kind necessary and desirable, the best thing they could do was to make it moderate, fair, and reasonable; and he thought the general expression of opinion, not only "elsewhere," but also among their Lordships, had been that the present Bill, on the whole, fulfilled that character. It appeared to him that the noble Marquess was disposed to lay down an impossible standard for that kind of legislation; for he seemed to think that they must define everything, down to the smallest details, and with a complete foresight of all the circumstances that might possibly arise, by Act of Parliament. His own impression was that any attempt to do so would be constantly found to defeat its own object. Their definitions would not truly anticipate all the variety of circumstances and of conditions which might present themselves. At every point there would arise questions as to those things concerning which the Act was silent or imperfectly expressed, because it was quite impossible to anticipate and express everything. In regard to the particular criticisms of the noble Marquess, he would first observe thats as to the test of value, which the noble Marquess thought a mistake, and to which he preferred the test of outlay, he must be aware, if he had followed the advice of the noble Duke (the Duke of Richmond and Gordon) and had read the Report of the Royal Commission, that the Royal Commissioners recommended the test of the difference of value resulting at the time of quitting from the tenant's improvements in preference to the test of outlay. And he could not but think that the noble Marquess would see that both to the landlord and to the incoming tenant that test would be more satisfactory; because if the actual outlay made by the tenant in good faith was not also made with good judgment, and did not result in profit either to the landlord or to the incoming tenant, it seemed manifest that the landlord and the incoming tenant would frequently be paying for that from which they got no benefit. He did not mean to say that to determine what was the value to a new tenant, or to the landlord, of an improvement effected on a farm might not sometimes be a matter of some doubt or difficulty; but the danger, if any, was that the valuers would be likely to fall back on the criterion of outlay as the test of value rather than they should make a mistake in the opposite direction; and that would, so far, be doing the very thing which he understood the noble Marquess to say ought to be the general rule. The noble Marquess animadverted on the absence from the 5th clause of a definition of what terms in an agreement would be fair and reasonable. Now, in the nature of things, it was impossible to define beforehand what the parties might desire to agree upon, and they could not possibly say that there might not be terms which were manifestly prohibitory and intended simply to deprive the tenant of the benefit which the Act intended to give him. When the parties had agreed bonâ fide and deliberately on any terms, those who objected to any such terms, on the ground that they were unfair and unreasonable, would have to show that they were so. It was possible that they might be unfair and unreasonable; and it would not be right to say, if that was the case, that they should prevail over the general rule. It was not unusual to leave questions of that kind to valuers and, if necessary, to lawyers, and there did not occur to his mind any other or better way by which the object could be accomplished. He pleaded guilty to being at first a little perplexed on the question whether cottage gardens might not possibly be capable of being held to be let for agricultural purposes. He did not think it was probable; but he thought that a question of that kind might possibly be raised. When, however, he carefully examined the terms of the clause which excluded all land that was not let either for agricultural or pastoral uses, or as a market garden, it became evident to him, from the mention of market gardens as a third category, that a market garden was not held to be let for agricultural purposes; and in that way he had satisfied himself that no serious doubt on the point could arise, as a cottage garden could not be held to be so on any ground which would not apply to a market garden with equal or greater force. Then, as to drainage, he was surprised that the noble Marquess suggested that as the clause stood it was uncertain whether the landlord and the tenant might agree as to the terms on which, by common consent, a work of drainage should be executed. He did not see how the clause could be made clearer on that subject. As finally amended it did not seem to be at all ambiguous. The only point that remained was the particular Amendment which was not now, he was happy to hear, to be pressed by the noble Marquess. He did not call in question the intention with which that Amendment was conceived; but he would point out that not only by the close division of opinion which was shown among their Lordships on the subject was the House of Commons justified in not accepting it, but the very fact that it was proposed at the last moment, and came upon them as a surprise, indicated either that the words from which the Commons had disagreed were not necessary, or that they might have produced inconveniences which were not intended or foreseen by the noble Marquess. The 6th clause was couched in general terms, having the same general intention as the Act of 1875. It applied both to present and future tenancies; and to introduce a different rule expressed in different terms, but intended to give effect to the same principle as to past tenancies, on the ground that the terms of the 6th clause were too wide or not sufficiently clear, would be rather casting a reflection on the 6th clause than improving the 2nd. Moreover, the introduction of the words "implied as well as expressed" in the noble Marquess's Amendment might have given rise to disputes, because it was more easy to construe an expressed intention than to determine something that was not expressed, but only to be implied. He trusted that none of the inconvenience which the noble Marquess suggested would be found to arise from the clause; but of one thing he was sure—that it had been framed deliberately, not with any view, as the noble Marquess had supposed, to satisfy two opposite sections—not with any view to Parliamentary or Party objects, but simply with a bonâ fide desire to do equal justice to both of the great classes who were concerned.

THE DUKE OF ARGYLL

said, he considered that the remarks of the noble and learned Lord on the Woolsack were of a re-assuring character, and he was glad to recognize the spirit which they displayed. He was also glad to hear that the Amendment of the noble Marquess was not to be pressed. He thought that the Government had shown a fair disposition to resist extreme views on the question of agricultural legislation. They were much pressed in "another place" to adopt provisions which he thought would have involved a very great invasion of the rights of property, and a great upsetting of the existing relations between landlord and tenant, and a serious injury to the prospects of agriculture. These provisions had been resisted by the Government, involving Divisions which showed considerable differences of opinion in the Liberal Party. Therefore, on the whole, he did not see reason to complain of the course which the Government had pursued with regard to that Bill. He did not, however, rise to defend the Government for that Bill, but simply to express an earnest hope that their Lordships, in so far as they represented the landlords of this country, would endeavour to work that Bill in a liberal spirit. The second Irish Land Act was excused and defended on the allegation—in his opinion, to a great extent, the unfounded allegation—that the Irish landlords had worked the previous Land Act of 1870 in a jealous and unworthy spirit. He had read carefully the evidence taken by the Bessborough Commission, and also that taken by the Commission of which the noble Duke (the Duke of Richmond and Gordon)—not now present—was the head; and he was unable to find satisfactory evidence in proof of that accusation against the Irish landlords; but it was an accusation that was quite sure to be made, and it was made an excuse for the second Irish Land Act. He hoped that the landlords of England and Scotland would remember that fact, and not suffer themselves to fall into such a trap. He believed it would be possible to work the Bill to the satisfaction of both landlords and tenants. But it was impossible to deny that measures of that kind, introducing relations by statute instead of those which had been hitherto regulated by free contract, produced new dangers and created fresh motives to which both parties might be tempted to give way. He hoped their Lordships would not allow themselves to be tempted in that manner, and that they would work the Bill in a liberal spirit, so that it would be impossible to say of them that they had not acted with a fair and reasonable compliance with its provisions. He would venture to suggest to their Lordships, having had experience of these matters, that with regard to the important details concerning the rights of tenants to compensation for manurial value of the land and other improvements, that those rights should not be made among the general conditions of a lease. He remembered a remarkable speech made two or three years ago by a former Lord Advocate. He had always regarded a successful lawyer as an omniscient being; but he read that speech with great surprise. The right hon. and learned Gentleman took one of the printed conditions which were common on estates in Scotland, and were very convenient to both parties. "This," said the right hon. and learned Gentleman, "is what is called free contract. Can it be called free contract when all the conditions are printed?" A more absurd question could not have been asked by an intelligent man; but yet the great majority of those persons who were present, utterly ignorant as they generally were of the principles upon which landed property was managed, cheered him to the echo. He might as well have asked if it was free contract that they could go to a sale and find the conditions of sale printed on paper. He quite admitted that they should not generally put into this mere printed and legal form anything but the universal and stereotyped condition of leases; and with regard to these detailed arrangements for compensation for manurial value and other improvements, which almost necessarily varied in each individual case—with regard to these conditions he thought generally they should be written agreements in each case. With this protection, he thought they could work the Bill with perfect success, provided it was done, not in a spirit of narrow jealousy, but taking care that they were really desirous to give to the tenants everything they desired to have that was perfectly fair and just within the spirit of this Bill.

LORD BRAMWELL

said, that, in his opinion, the Amendment of the noble Marquess was by no means unnecessary, in consequence of the provisions of Clause 6. He would have said that the case was too plain for argument had not his noble and learned Friend on the Woolsack taken a different view. When it was said that it was impossible beforehand to be precise, that was true to a certain extent; but it was also true that to a certain extent they could be precise. He thought it was their duty to lay down their laws intelligibly; and it was clear that the Act was not as plain as it might be, as his noble and learned Friend and himself took different views.

LORD DENMAN

said, he must make a final protest against the Bill. He felt sure that if there were a conference between the two Houses the mischievous character of the Bill would be made manifest. He believed that the Act of 1875 was far better and more certain than the present one. So far from being a panacea for their evils, the Bill would throw the apple of discord among landlords and tenants. He believed there would have been no misfortune in throwing out the Bill. It was passed with haste, and with haste that might have been avoided.

THE EARL OF WEMYSS

My Lords, I greatly regret that my noble Friend the Leader of the Opposition does not feel himself in a position to stand to his Amendment. No doubt, his position, as described by himself, is most unfortunate, and worthy of commiseration, for he has told us that he is deserted by his troops, and left at the mercy of what he calls the "Janissaries" of the Government; and the loss of the Amendment is the more to be regretted as, after what has fallen from my noble Friend (Lord Bram-well), it is evident that the 6th clause, unless the Amendment be maintained, will be a fruitful source of litigation. But we are told that by insisting upon the Amendment your Lordships will lose the Bill. Speaking for myself, I should view its loss as so much gain, and I hardly think that your Lordships have fully taken in all the bearings of the measure. I have, however, here a summary of its provisions, which I have carefully made out, and which, I think, will clearly show how manifold and great are the evil principles contained in this so-called moderate Bill. By Clause 1, rights previously non-existent are created, and given as a "boon" or bribe to the present tenant at the cost of the future tenant or landlord. Under Clauses 1 to 7, State agreements are imposed in the place of private contracts. By Clause 4, the rate of interest for money is actually fixed by statute. By Clauses 8 to 27, State arbitrations and Courts are enforced, from which, in certain cases, no appeal is allowed; and a scale of costs is prescribed. By Clause 34, rights of property are transferred from the owner to the occupier. In Clause 41, a reduction of rent is prescribed in certain named cases; and Clauses 44 to 52 limit the powers of recovering debts. Further, the Bill empowers the tenant to drain land against the will of his landlord. And, generally, the measure bars all feu agreements in the future; breaks them—even 19 years' leases—in the past; while it tends to the direct encouragement of fraud. Such, my Lords, is an accurate summary of the Bill; and it must, I think, be admitted that we have here abundant evil, protoplasmic provisions, capable, when Party expediency demands, of indefinite extension and universal application. Now, how comes it that a measure such as this has passed through both Houses of Parliament without opposition? How is it that the Liberals are thus garrotting liberty, and the Conservatives failing to conserve property? It is due, my Lords, not to any belief in the soundness of the principles of the Bill, but to Party needs, and the supposed moderation of the measure. "For God's sake pass the Bill, lest worse befall us!" That is the chief argument one hears urged in its favour, and, to say the least, it is not a very brave course, nor likely, in the long run, to ward off the dreaded danger. Why, what is this vain endeavour to find security in the provisions and folds of this Bill, but a repetition of the policy of that foolish feathered denizen of the desert, which, when pursued, hides its head for safety in the sand. Now, my Lords, I venture to think that the Conservatives have thrown away a great chance. What was it that brought them the last time into Office? Harassed interests. And now, again, ever since they returned to power, we have had the Liberals at their old game, harassing one great interest after another. At one time the manufacturer; at another the shipowner, who is scolded, threatened, and put into the corner like a naughty child by the President of the Board of Trade; and here we have the landed interest inequitably treated by this Bill. Why, my Lords, the fact is that the Liberals have divorced their old, true, faithful love and spouse, Liberty, and have, as the phrase is, "taken up" with Socialism, that painted social evil, whose falsehood and rottenness all history proclaims. Well, here the Liberals have, as I said, given their opponents a chance—they have thus fairly exposed their flank; and the Conservatives have failed to take advantage of their errors. For of this I feel assured, that, however Socialistic may be the present tendency of legislation, there is in the English nation, and in the Anglo-Saxon race, such an innate love of liberty, and so much self-reliance, that in the long run the people of this country will rally round the Party in the State that firmly takes its stand upon, and in defence of, individual liberty. Had, therefore, the Conservatives stood firmly as the champions of free contract; had they manfully resisted the breaking of existing agreements, they might possibly have lost the support of a very few agitating political tenant farmers, but they would have thus secured the respect of all steady-going agriculturists, and the confidence of the commercial community. And now, my Lords, a word upon the consequences of the measure. The noble Duke who spoke behind the Treasury Bench (the Duke of Argyll) expressed a hope that there might, after the passing of this measure, be peace and kindly feeling between landlord and tenant. I trust so too. But I am bound to state my belief that the consequences of this Bill will be distrust, enmity, litigation; the shortening of, if not the doing away altogether with, leases; the taking of farms in hand by owners wherever possible; and, generally, the checking of agricultural improvements. Such, then, is the view I take of the Bill; and as regards the Amendment, I look upon it as the only one worth fighting for, because it is the only Amendment that has any shred of principle in it. And now, my Lords, I have only to thank your Lordships for having allowed me to make these remarks upon the Bill; and, in conclusion, I would say this—that I shall ever look back with satisfaction upon the fact that I have from the outset, alike before my constituents and in my place in Parliament, consistently and persistently denounced and opposed, to the best of my ability, all legislation of this kind, which I believe to be fraught with evil, not only to landlord and tenant, but to all classes of the community, and, if persevered in, ultimately fatal to the well-being of this great commercial people.

Motion agreed to.