HC Deb 31 July 1883 vol 282 cc1203-17

[THIRD NIGHT.]

Bill considered in Committee.

(In the Committee.)

Regulations as to Estimates of Improvements.

Clause 6 (Set-off of benefit to tenant).

MR. J. W. BARCLAY

said, he did not see anything in the clause which gave a landlord the right to claim compensation from a tenant for the breach of any stipulation, and he should propose to omit all the words after "nothing."

Amendment proposed, in page 3, line 31, to leave out from "nothing" to end of Clause.—(Mr. J. W. Barclay.)

Question proposed, "That the words proposed to be left out stand part of the Clause."

THE LORD ADVOCATE (Mr. J. B. BALFOUR)

said, the object of this Proviso was to define the period over which the claim of a landlord was to be set off or dealt with in account. The object of the Bill was not to create a right to claim on the part of the landlord, but to provide the extent to which it could be entered in the account. It seemed fair and reasonable that there should be a certain period over which claims for deterioration should be so dealt with; and four years appeared to the Government to be a fair time.

MR. J. W. BARCLAY

said, he thought the right hon. and learned Lord Advocate had not given a fair representation of the matter. Notwithstanding anything in this Bill, a landlord would have a right to set up a claim for deterioration for a much longer period.

THE LORD ADVOCATE (Mr. J. B. BALFOUR)

said, what was provided was, that this Act should not help a landlord to compensation for deterioration applicable to a period prior to four years. The whole of the clause was directed to the time with reference to which conditions under the compensation account should be stated; and it seemed a fair and reasonable provision that there should be a time fixed, claims arising prior to which could not enter into the statutory compensation account.

MR. J. W. BARCLAY

said, the Proviso was entirely delusive, because the landlord would make his claim under the Common Law; and, therefore, he contended that the clause was delusive, and calculated to deceive tenants.

Question put, and agreed to.

SIR ALEXANDER GORDON

proposed, as an Amendment, in page 3, line 34, to substitute "a matter of husbandry" for "cultivation or management." He said those were the words used in the English Bill, and also in the Act of 1875; and they appeared to him to be much more suitable.

Amendment proposed, in page 3, line 34, to leave out "cultivation or management," in order to insert the words "a matter of husbandry."—(Sir Alexander Gordon.)

Question proposed, "That the words 'cultivation or management' stand part of the Clause."

THE LORD ADVOCATE (Mr. J. B. BALFOUR)

said, cultivation and management were provided for in the clause; it was not limited to cultivation alone.

MR. J. W. BARCLAY

said, he should like the right hon. and learned Gentleman the Lord Advocate to explain whether it was a mere breach of the stipulations that was to be claimed for.

Question put, and agreed to.

SIR HERBERT MAXWELL

said, he was at a loss to understand why the right hon. and learned Gentleman the Lord Advocate had selected the term "four years." He did not think there was anything to be said in support of four years, and instead of that term he would move that the landlord should be able to claim for deterioration within six years of the determination of the tenancy.

Amendment proposed, in page 3, line 34, to leave out "four," and insert "six."—(Sir Herbert Maxwell.)

Question proposed, "That the word 'four' stand part of the Clause."

THE LORD ADVOCATE (Mr. J. B. BALFOUR)

said, the period to be chosen in a matter of this sort was necessarily arbitrary. It was quite true that, in many parts of Scotland, six years would be better than four. Four years, however, seemed to the Government to be a fair average to fix upon. There was great diversity of opinion as to the precise time that should be taken; but, while admitting that the period of four years was arbitrary, it did appear to the Government to be the period in which deterioration could be readily and promptly ascertained.

MR. J. W. BARCLAY

said, hon. Members had reason to complain of the obscurity with which the Bill was drawn. He did not know exactly what this Proviso meant; but, as a tenant, he thought the presumption was against the tenants. Holding those views, he would very much like to see the whole clause struck out of the Bill.

MR. RAMSAY

said, he understood that when any claim was made by a proprietor for deterioration, he did not take into consideration any definite period, but the sum which would he requisite to place the farm in order. If that were the case, they might make the period six, or even seven years.

MR. M'LAGAN

said, he thought it was decidedly a protection to the tenant that some period should be specified, though he should prefer to see the four years reduced to two. Provision was made in the Bill for compensation for breach of stipulation; and he maintained that whenever that took place, the landlord should at once call the attention of the tenant to it, and insist that matters should be put right.

Question put, and agreed to.

Clause 6, as amended, agreed to.

Procedure.

Clause 7 (Notice of intended claim).

MR. R. N. FOWLER

said, he hoped the Government did not propose to go further that night. It was now past 1 o'clock, and many hon. Members were in the House until nearly 5 yesterday morning. ["Oh, oh!"] The hon. I Members who growled were not there until 5 o'clock yesterday morning. The House was required to meet again at 12 o'clock; and, therefore, under the circumstances, it was most unreasonable they should be asked to sit longer. Hon. Members ought to have some consideration for the Speaker, who sat there 13 hours last night, and who would have to be in the Chair at 12 o'clock to-morrow. Though the right hon. Gentleman was not in the Chair at that moment, he was waiting the convenience of the Committee. He (Mr. R. N. Fowler) begged to move that Progress be now reported.

Motion made, and Question proposed, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. R. N. Fowler.)

SIR HERBERT MAXWELL

said, he hoped his hon. Friend (Mr. R. N. Fowler) would not press his Motion. The Scotch Members had given most unremitting attention to the English Business for some time past, and it was hardly generous that they should not be allowed to transact their own Business when they were unanimous in a desire to do so.

MR. M'LAGAN

said, he was one of the few Members who sat up until 5 o'clock yesterday morning; but as he was very anxious to see this Bill passed, he was quite ready to sit up until 5 o'clock this morning.

MR. WARTON

said, it was stated that the Bill would not be brought on after half-past 12; but, as a matter of fact, it was brought on at nearly 1 o'clock. [An hon. MEMBER: That was another Bill.] Anyhow, what he had stated was what he had understood. He had the greatest respect for the Scotch Members; and, in their own interest, he would suggest that the further consideration of the Bill be postponed till to-morrow. They would then, between 12 and 6 o'clock, be able to get through both this and the Local Government (Scotland) Bills.

MR. J. W. BARCLAY

said, he hoped the hon. Gentleman the Member for the City of London (Mr. R. N. Fowler) would not persist in the Motion to report Progress. The Scotch Members had been waiting up for two or three nights together in order to take the Bill; and he hoped that now they had a chance they would be allowed to do so. It was well he should remind the hon. and learned Member for Bridport (Mr. Warton) that it was the Local Government (Scotland) Bill that the Government promised not to take after half-past 12.

MR. A. J. BALFOUR

said, he must confess that he was very exhausted. He hoped the Government did not mean to rush the Bill through indefinitely; indeed, it was hardly fair that the Scotch Business should be transacted very late at night. Scotch Members must remember that if Progress were reported now, they would be able to resume the consideration of the Bill at 12 o'clock tomorrow.

MR. R. N. FOWLER

said, that as it seemed to be the wish of Scotch Members to proceed, he would ask leave to withdraw his Motion. He, however, did not consider the position he had taken up unreasonable.

Motion, by leave, withdrawn.

SIR ALEXANDER GORDON

moved, as an Amendment, in page 3, to leave out "two," in line 38, and insert "twelve." His object in proposing this Amendment was to give the incoming tenant and the landlord more time to arrange the terms on which the holding should be taken than they would have under the Bill as it was now drawn. If they adopted the proposal of the Government they increased the notice to quit from one year to two. The House of Commons passed that last year without a dissentient voice, and he imagined they would pass it this year at the instance of the Government. In consequence of having only two months' notice of a claim for compensation, the landlord and tenant would be in a state of uncertainty for 22 months after receiving notice to quit. During the whole of that time, the landlord would not know what the tenant intended to do with regard to compensation. He (Sir Alexander Gordon) thought it was desirable that notice should be given of a claim to compensation 12 months before the determination of a tenancy.

Amendment proposed, in page 3, line 38, to leave out "two," and insert "twelve."—(Sir Alexander Gordon.)

Question proposed, "That the word 'two' stand part of the Clause."

THE LORD ADVOCATE (Mr. J. B. BALFOUR)

said, he must point out that the clause had nothing to do with the removal of the tenant; it had merely to do with the time within which he was to make a claim for compensation. The hon. and gallant Gentleman (Sir Alexander Gordon) was therefore in error in supposing that there would be any impediment or bar to the landlord re-letting his farm to a new tenant. If they adopted the Amendment, they would put a great deal more on the tenant than would be put upon him by two months. A tenant might not know whether he would have good grounds for a claim 12 months beforehand; and, therefore, he (the Lord Advocate) submitted, it would put too great restraint upon the tenant to adopt the Amendment.

Question put, and agreed to.

MR. COCHRAN-PATRICK

proposed, as an Amendment, to leave out "fourteen days," in page 4, line 2, and insert "one month." He thought a fortnight was rather too short a time in which a landlord might make a counter-claim.

Amendment proposed, in page 4, line 2, to leave out "fourteen days," and insert "one month." — (Mr. Cochran-Patrick.)

Question proposed, "That the words 'fourteen days' stand part of the Clause."

MR. J. W. BARCLAY

said, that as soon as a tenant gave notice, a landlord ought to be in a position to see the state in which the tenancy was left. Fourteen days' notice was too long.

THE LORD ADVOCATE (Mr. J. B. BALFOUR)

opposed the Amendment. He considered that it would be found the landlord would have plenty of time in which to make a counter-claim.

Amendment, by leave, withdrawn.

MR. A. J. BALFOUR

said, if his memory served him aright, it was thought judicious to strike out the words "as far as reasonably may be" in the English Bill, and introduce the words "so far as possible."

MR. J. W. BARCLAY

said, that was done on Clause 16.

MR. A. J. BALFOUR

said, that if the words were introduced in Clause 16, it might be wise to introduce them here.

MR. WARTON

considered there was great force in the suggestion of the hon. Gentleman (Mr. A. J. Balfour). It was quite true the alteration was made in a later part of the English Bill; but the principle involved was the same throughout. The Amendment appeared to him to be very desirable.

MR. A. J. BALFOUR

begged to move, as an Amendment, to omit in lines 5 and 6 "as far as reasonably may be," and insert "so far as possible."

Amendment proposed, in page 4, lines 5 and 6, to leave out "as far as reasonably may be," and insert "so far as possible."—(Mr. A. J. Balfour.)

Question proposed, "That the words as far 'as reasonably may be' stand part of the Clause."

THE LORD ADVOCATE (Mr. J. B. BALFOUR)

said, he was afraid that to adopt the Amendment might, in some cases, shut out just claims which would arise. It was possible that a person might not, through oversight or omission, make a claim he was justly entitled to make.

MR. RAMSAY

said, he thought it would be an advantage that the claim, as far as possible, should be stated; and, therefore, it might be wise to accept the Amendment. The landlord would have previously obtained from the tenant the particulars of the claim he made against the landlord; therefore it was proper the tenant should have the particulars of the counter-claim made by the landlord.

MR. A. J. BALFOUR

asked leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 8 (Compensation agreed or settled by reference) agreed to.

Clause 9 (Appointment of referee or referees and oversman).

MR. J. W. BARCLAY

said, the clause provided that— If before an award is pronounced one of two referees dies or becomes incapable of acting, or for seven days after notice from the party appointing him of his appointment fails to accept the reference and to act, the party appointing him shall appoint another referee.

He thought seven days was a very short notice; and he, therefore, begged to leave out "and to act."

Amendment proposed, in page 4, line 26, to leave out "and to act."—(Mr. J. W. Barclay.)

Question proposed, "That the words 'and to act' stand part of the Clause."

THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)

said, he did not think it was reasonable to require that the referee should act within seven days of his appointment; and, therefore, he could not, on behalf of the Government, accept the Amendment.

MR. J. W. BARCLAY

said, he was of opinion that it would be impossible for farmers to carry out the reference in seven days. Lawyers did not usually act so expeditiously, and he did not see why farmers and country lawyers should be expected to proceed so promptly.

SIR HERBERT MAXWELL

said, he agreed with the hon. Member for Forfarshire (Mr. J. W. Barclay) that it would be impossible for farmers to carry out the reference as quickly as the Act required.

THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)

said, he was sure it would not be too much to require that the referee, as soon as he accepted the reference, should take some steps for executing the work. It was not unreasonable to call upon him to accept within seven days.

MR. J. W. BARCLAY

said, the provision was that, after the appointment of the last of the referees, the award must be given in within 28 days, so that there was plenty of time. However, he would not press the Amendment.

Amendment, by leave, withdrawn.

SIR HERBERT MAXWELL

moved, as an Amendment, to leave out, after "appointed," in page 4, line 36, all the words down to "oversman" in line 42, in order to insert the words, "and differ in opinion." He thought this would simplify matters, and he did not see any reason for the appointment of an oversman unless a difference of opinion arose between the referees; and in that case the easiest way of appointing an oversman was by reference to the authority referred to in the section. He submitted this point to the consideration of the right hon. and learned Gentleman the Lord Advocate.

Amendment proposed, in page 4, line 36, leave out after "appointed" to "oversman," in line. 42, and insert "and differ in opinion."—(Sir Herbert Maxwell.)

Question proposed, "That the words proposed to be left out stand part of the Clause."

THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)

said, it was generally found in practice that it was much more convenient to appoint the oversman before the arbiters.

MR. J. W. BARCLAY

said, he thought there were practical objections to appointing an umpire before the arbiters differed; because, if one of the arbiters knew that the views of the umpire were inclined in his direction—and, of course, such things came to be known throughout the country—then he would hold out for much stronger terms than he otherwise would do. Besides, there was the question of expense.

Question put, and agreed to.

Motion made, and Question proposed, "That the Clause stand part of the Bill."

GENERAL SIR GEORGE BALFOUR

asked whether the word "sheriff" in the clause meant the sheriff of the county, or the sheriff substitute?

THE LORD ADVOCATE (Mr. J. B. BALFOUR)

said, it was proposed to add to the definition, so that the sheriff substitute would be included in the term.

Question put, and agreed to.

Clause 10 (Mode of submission to reference) agreed to.

Clause 11 (Power for referee, &c. to require production of documents, administer oaths, &c.).

SIR ALEXANDER GORDON

moved the following Amendment:— In page 5, line 18, at end, add "each party shall be entitled to inspect the documents produced by the other party, and to challenge the accuracy of such documents within fourteen days of their being deposited with the referee, or oversman, or sheriff, as the case may be; and any examination of parties or witnesses, whether on oath or otherwise, shall take place in presence of the opposing party, or his agent, if he desires to be present, sufficient notice being given to him for that purpose. He thought the Committee ought to bear in mind that they were appointing a number of persons to act in a judicial capacity, and to take oaths—to act as Judges, in fact.

Question proposed, "That those words be there inserted.

THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)

said, he must point out that the proposed Amendment was quite unnecessary, because everything it proposed to do must take place. It was the undoubted right of any one party to a reference to examine the documents produced by his opponent; and, certainly, no referee could take the evidence of a witness on one side of the case without the presence of the other party. It would be very undesirable to embody in the Bill provisions which were already in operation under the Common Law.

SIR ALEXANDER GORDON

expressed his willingness to withdraw the Amendment.

Amendment., by leave, withdrawn.

Clause agreed to.

Clause 12 (Power to proceed in absence); Clause 13 (Form of award); Clause 14 (Time for award or reference); and Clause 15 (Reference to and award by oversman) severally agreed to.

Clause 16 (Award to give particulars).

MR. M'LAGAN

said, he would point out that the words in line 9, "as far as reasonably may be," ought to be "as far as possible;" and he moved the substitution of the latter words for the former.

Amendment proposed, in page 6, line 9, to leave out the words "reasonably may be," in order to insert the word "possible,—(Mr. M'Lagan,)—instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Clause."

THE LORD ADVOCATE (Mr. J. B. BALFOUR)

said, it was true that this case was not quite the same case as the other; but the same considerations should apply to it. There were strong reasons for requiring specification, so that the parties might know precisely what the arbiters had done; but, at the same time, if the Amendment now proposed were carried, awards which were substantially good might be rendered liable to challenge by the parties decided against, who might come forward and say that it might have been possible, although it might not, perhaps, have been reasonable, to split up the items more than was done. That was clearly a thing to be avoided; and it appeared to him that if the arbiter, exercising an honest and fair judgment, set out the particulars or details as far as might be reasonable, that ought to be a good award, and it should not be open to challenge.

MR. A. J. BALFOUR

said, the question was discussed in the English Bill, when the right hon. Gentleman the Chancellor of the Duchy of Lancaster (Mr. Dodson) took a very different view of it from that now taken by the right hon. and learned Lord Advocate. It would be convenient if the two right hon. Gentlemen would consult with each other, so that they might take up a particular line and keep to it. That would certainly conduce to greater uniformity.

MR. M'LAGAN

said, he should not have moved the Amendment if it had not already been made in the English Bill.

Question put.

The Committee divided:— Ayes 63; Noes 14: Majority 49.—(Div. List, No. 252.)

MR. J. W. BARCLAY

said, he wished to know what was meant by "acts and things?" The Bill only provided for compensation for improvements, and the award would specify what the compensation was for. What, then, was meant by these "acts and things?"

THE LORD ADVOCATE (Mr. J. B. BALFOUR)

said, that if the hon. Gentleman would refer to Clause 6 he would see what it was that these words referred to, and also at line 11 of the page with which they were now dealing. Improvements, no doubt, were the primary idea; but there were other claims which might have to be made, as, for instance, for deterioration of the land; and, therefore, these words were necessary. There were things done and things omitted that had to be provided for.

SIR HERBERT MAXWELL

moved the following Amendment:— In page 6, at end of Clause, add—"Nothing in this Act shall enable a tenant to obtain compensation in respect of any of the material specified in the third part of the Schedule used or applied more than six years before the termination of the tenancy in relation to lime and marl, or four years before such termination in relation to the other substances specified. He said, this was a matter of some considerable importance, for was it to be supposed that there was no limit to the utility of these manures, or other substances? The tendency of modern scientific agriculture went more and more in the direction of the application of a particular kind of manure which would be exhausted by the crop; and there ought to be some indication in the Bill of an intelligible rule which should be applied to manures of a more or less permanent character. His feeling was in favour of the six and four years mentioned in the Amendment; but he attached no great importance to the particular number of years, and should be inclined to agree to any other number that the right hon. and learned Gentleman's experience in agriculture might lead him to deem to be desirable.

Question proposed, "That those words be there added."

THE LORD ADVOCATE (Mr. J. B. BALFOUR)

said, he must point out that the Amendment, supposing it to be good in substance, was inappropriate to the clause. The clause related to the particulars to be given in the awards—it was not a clause defining the conditions under which compensation was to be given, or for what compensation was to be given. It would, he thought, be a mistake to lay down a hard-and-fast rule in the Bill as to the time over which the claim should extend. He dared say it was only very seldom that anything in the nature of manure applied six years before would still be found valuable; but that was clearly a matter for the arbiter to determine. If there were any manures which, in the judgment of those who had to decide the question, survived for more than six years, there was no reason in principle why compensation should not be given for them. On these grounds he opposed the Amendment.

Question put, and negatived.

Clause agreed to.

Clause 17 (Expenses of reference).

SIR HERBERT MAXWELL,

in moving, as an Amendment, in page 6, line 23, to leave out from "paid" to "paid" in line 30, in order to insert the words "by the parties in equal proportions," said, he did not see why the expenses of every application under the Act should not be borne equally by both parties. That, it seemed to him, would remove one element of uncertainty from the cases that would arise. Of course, it was desirable, in all questions of this sort, that each party should learn how he stood, and that there should be as little as possible of uncertainty in the circumstances. It seemed to him to be perfectly reasonable that the parties should be made to share the expenses, and that would really tend to limit the expense; because, so long as there was any chance of one of the parties being exempted from expense, there would always be a tendency to further litigation and to au increased expenditure. It was better that the expenses should be equally shared between the parties.

Amendment proposed, in page 6, line 23, to leave out from "paid" to "paid" in line 30, and insert "by the parties in equal proportions."—(Sir Herbert Maxwell.)

Question proposed, "That the words proposed to be left out stand part of the Clause."

THE SOLICITOR GENERAL FOR SCOTLAND (Mr. ASHER)

said, he hoped the Amendment would not be accepted, because he very much doubted whether it would not act in precisely the opposite direction to that suggested by the hon. Baronet. Those who had had experience in connection with disputed matters would realize this—that there was no more salutary check upon litigation in regard to claims that were not well founded than the consideration that those who put them forward would be paid half the expense incurred.

Question put, and agreed to.

Clause agreed to.

Clause 18 (Day for payment) agreed to.

Clause 19 (Appeal to sheriff).

On the Motion of The LORD ADVOCATE, the following Amendment made:— In page 6, line 37, leave out from "Where" to end of Clause, and insert "the sum claimed for compensation exceeds one hundred pounds, either party may, within seven days after delivery of the award, appeal against it to the sheriff on all or any of the following grounds:—

  1. (1.) That the award is invalid;
  2. (2.) That compensation has been awarded for improvements, acts, or things, or for breaches of stipulations or agreements, or for committing or permitting deterioration, in respect of which the party claiming was not entitled to compensation;
  3. (3.) That compensation has not been awarded for improvements, acts, or things, or for breaches of stipulations or agreements, or for committing or permitting deterioration in respect of which the party claiming was entitled to compensation;
and the sheriff shall hear and determine the appeal, and may, in his discretion, remit the case to be reheard as to the whole or any part thereof by the referee or referees or oversman, with such directions as he may think fit. If no appeal is so brought the award shall be final. The decision of the sheriff on appeal shall be final.

On the Motion of The LORD ADVOCATE, the following Amendment made:—In page 6, line 41, after "pounds," leave out "such," and insert "either."

MR. J. A. CAMPBELL

said, he had the following Amendment on the Paper:—In page 7, line 2, after "case," to insert "on any question of Law, or of rejection or admission of evidence." The object of the Amendment was to limit the appeal; for there was a danger, when an appeal was given from the arbiters, that they would be less careful than they otherwise would be. The appeal, therefore, ought to be limited to questions of law; but as there seemed to be a difficulty about proposing anything which would make this Bill different from the English one, he should not move his Amendment.

Amendment, by leave, withdrawn.

Clause, as amended, agreed to.

Clause 20 (Recovery of compensation).

Amendment proposed, in page 7, line 12, to leave out "fourteen days," and insert "one month." — (Mr. Cochran-Patrick.)

Question, "That the words 'fourteen days' stand part of the Clause," put, and agreed to.

Clause agreed to.

Clause 21 (Appointment of guardian) agreed to.

Committee report Progress; to sit again To-morrow.