HC Deb 11 March 1897 vol 47 cc539-52

moved:— That an humble Address be presented to Her Majesty, praying Her Majesty to direct that Rules 130 and 133 and Forms 28, 29, and 30 of the Irish Land Commission be annulled. The rules and forms which he desired to have annulled dealt with two separate and important questions. The first rule he would deal with was Rule 130. It had been for a long time the practice of the Land Commission in Ireland to insist by rule—for it was not laid down in any of the Land Acts—that a tenant whose holding was valued at over £10 a year should indorse on the back of the originating notice the particulars of the improvements in respect to which he desired to claim an allowance when the fair rent was fixed. That practice had been in force for a considerable number of years; but when the Land Act of 1896 was passed he and most Irish Members were under the impression that the first Sub-section of that Act would render it impossible for the Land Commission to continue that practice. The opening words of that sub-section were:— Where the Court fixes a fair rent for a holding, the Court shall ascertain, and record in the form of a schedule, unless both landlord and tenant shall otherwise request the following particulars. And then followed the particulars. That sub-section, in his opinion, cast upon the Sub-Commissioners the duty of ascertaining the required particulars. There was no qualification in that subsection as to the improvements claimed by the tenant being indorsed on his originating notice. It made it mandatory on the Commission to ascertain and record all improvements on the holding. In order to appreciate the full meaning of the statute it was necessary to remember the process of fixing a fair rent. First, two lay sub-commissioners went to the holding and took a careful record of improvements. Under the rule which he desired to have annulled, these sub-commissioners might, and often did, find improvements which according to the language of the statute ought to be held as the property of the tenant, and in respect of which no rent ought to be allowed. But if the tenant, who might be a poor ignorant man, had not indorsed his notice with the improvements, they were taken from him by a rule of the Court. It was not right for a court of law to frame rules which deprived a suitor of any property which it was the clear intention of the statute to give him. This rule ought not to have been renewed when the Land Commission recast their rules after the Act of last year. Those new rules were now published, though they had not yet been circulated to Members. They had, indeed, only just been laid on the Table in response to a question of his to the Attorney General for Ireland. According to the statute of 1881 they ought to have been laid on the Table within three weeks of the meeting of Parliament, but by some mistake of the Land Commission that had not been done.


I understand from the hon. Gentleman that these rules are not yet printed. I do not know how long they have to lie.

MR. T. M. HEALY (Louth, N.)

One hundred days. There is plenty of time.


If there is plenty of time, I would suggest to the hon. Member that it would be very inconvenient to the House to discuss the rules without their being printed. It is very analogous to the case of a Bill which has not been printed before it comes on for Second Reading. It is impossible for an hon. Member who has not seen, and had no opportunity of seeing, these rules to understand them or to see the bearing of each particular rule without reference to the context of the other rules, and therefore I suggest to the hon. Member that it is for the convenience of the House, as well as for himself, that he should postpone the further discussion of this matter until the few days have elapsed in which the Rules may be in the hands of Members.


said he might explain that the rules had been printed and were in circulation and for sale in Dublin for the last six weeks, and he submitted that it would be extremely hard if they should be deprived of the opportunity of moving this Motion because of the conduct of the Land Commission, who held back the rules which ought to have been laid on the Table and printed three or four weeks ago. He hoped to prove that no inconvenience could arise to hon. Members who took an interest in this matter, and who were acquainted with Irish land legislation. The rules against which he was moving were only two, and were extremely brief. With regard to Rule 130, he desired to see it annulled because in his judgment it was inconsistent with the wording of the first sub-section of the Act of 1896; because in his opinion, and in the opinion of many men skilled in the administration of the Act, it took away from the tenant a property which the Act and that House gave to him, and because he did not think it was consistent with the just administration of the law to frame rules which were calculated to defeat the plain object of the Legislature and the words of an Act of Parliament. There was another reason. A schedule of the improvements claimed was required from the tenant who served an originating notice, but if the landlord served an originating notice he understood he was not compelled to schedule the improvements he claimed. If that were true, could there be a more gross and palpable case of injustice than to put on the poor man, in order to save his property, a duty which they did not require the rich man to do when he came into Court under precisely similar circumstances? Turning to the second part of the Motion, Rule 133 and Forms 28, 29, and 30, which he wished to have annulled, had been drawn up under the direction of Section 1 of the Act of 1896. In that Act it was provided that the schedule should be in the form of the first schedule of the said Act "or any such other form as may be prescribed." Therefore, that gave to the Committee an absolute right as to the form of the schedule. They were not in the least bound to follow the schedule of the Act, and, by an Amendment intro- duced into Section 1 by the hon. Member for the City of Cork, it was enacted that "nothing contained in the first schedule shall affect the construction of any other portion of the Act." That was inserted, he understood, from the fear that the Committee might think they were in any way bound by the wording of the schedule of the Act. Therefore, the Land Commission in framing the schedules were clearly and distinctly bound not to follow the schedule of the Act of 1896 if it was inconsistent with any other portion of the Act, and he held that the form of the schedule in the Act and, quite as much, the form of the schedules which he asked to be annulled, were plainly inconsistent with the wording of the first section of the Act, and that, therefore, the first section of the Act ought to override the schedules. The first sub-section directed the Commissioners to ascertain and record certain particulars. In ascertaining the fair rent they were not to ascertain the rent of the buildings separate from the land, nor the rent of the land as if it were situated in the planet Saturn, and then add on a number of preposterous imaginary values. They were directed to do as any ordinary valuer would do; they were to value the farm as a going concern and to set upon it a fair value, and ascertain what improvements were the property of the landlord. He held that the schedule which had been adopted by the Government was extremely inconsistent with the wording of the first section of the Statute. The schedule did not give to the tenant the benefits of the procedure or form which was provided for in Section 1 of the Act of 1896. He held, too, that the schedule was an ever-threatening danger. He was told that it, had already been applied under the Ulster Custom, but he believed that it would create the greatest alarm in Ulster. He held, furthermore, that the schedule would increase the delay and the block in the Land Courts. With the thousands of cases coming in, in spite of the new appointments, there was an immense block of business which would be greatly increased in the next few years, and this schedule made the work of reviewing the rack rents of 1882, 1883, and 1884, under which the Irish people were groaning five or six-fold more slow and laborious. He wanted to direct the attention of the House to a remarkable judgment delivered the other day in Dublin by that member of the Commission who was the only one who had any practical experience of land-valuing. Here they had got five men sitting, with jurisdiction to fix fair rents, and three of them were barristers who had no more knowledge of land than he had of the Chinese language. Yet these men's chief business was the fixing of the value of land. Mr. Wrench, although for a long time agent on an estate, had no practical experience in the land valuation. Now, only one man who had any practical knowledge of the value of land was Mr. Commissioner O'Brien. No one had a longer or a more complete experience of the valuation of land than he had. The hon. Member then quoted extracts from the judgment of Mr. Commissioner O'Brien, as reported, he said, in The Irish Times of about a fortnight ago. It would be seen, therefore, that in his opinion this schedule added enormously to the labours of the Land Commission, and that it was inconsistent with the terms of the Act of last year, and also worked great injustice to the tenants. These were the grounds upon which he asked the right hon. Gentleman the Chief Secretary to assent to this Motion. The tenants ought to be given the benefit of the Act of last year without any conditions or restrictions. ["Hear, hear!"] He begged to move the Motion that stood upon the Paper in his name. ["Hear, hear!"]

MR. J. C. FLYNN (Cork, N.)

said that he rose to second the Motion. It was most unfair to require the tenants to give these particulars. In many instances they would be absolutely unable to give them, and in those cases they would be unable to make out their cases before the Assistant Land Commissioners. There were many particulars which the tenants were asked to give which they could not possibly give in many instances. How could the tenants give the capital value of many of their improvements, such as the drainage of their holdings and the reclamation of the soil, in cases where mountain land had been turned into grazing land. It was most hard upon the poor tenants to exact these particulars from them, because, being uninstructed in such matters themselves, they would have to avail themselves of professional assistance at considerable cost. How could a rough unlettered tenant pretend to give the present value of drainage improve- ments which he had effected three or four summers ago, or of those which had been effected years ago by their forefathers? There was another important point. Where the tenant served the notice he was bound to specify on that notice all the improvements on which he claimed, and even when the landlord served the notice he was bound to do so. That seemed to him altogether unjustifiable. Presumably when the landlord served a notice to fix a fair rent, he did so with the object of getting the rent raised. Surely, therefore, it was not fair to put the onus probandi on the tenant. He thought that point would commend itself to the common sense and sense of justice of hon. Members on the other side of the House, and he hoped the Motion would therefore be carried.


said that, as he understood it, the objection of the hon. Member to Rule 130 consisted in this, that the Act of last year introduced some different principles, and, therefore, the Rule was not applicable. The hon. Member who last addressed the House did not appear to him to have read the Rule or made himself familiar with its provisions, because he declared that under it an ignorant man would be required to put a capital value on his improvements.


said he meant to say that he would be bound to specify all the improvements on which he meant to rely.


Then the hon. Member did not mean what he said. But what was the injustice in requiring a tenant who wished to get his rent reduced, to state as far as he could, within his own knowledge or belief, the particular improvements on which he meant to rely? He could not conceive anything more just or reasonable. The practice had been followed since 1882 and was universal in Courts of Justice. Under the Act of 1896 the Commissioners had to make an inquiry in order to ascertain whether, in fixing a fair rent, a reduction ought to be made in respect of the tenant's improvements. In order to enable them to make that inquiry the tenant was required to tell the Court what the improvements were on which he meant to rely. The hon. Member for East Mayo said that the Act of 1896 had dispensed with the necessity for that inquiry, basing his argument on the first portion of the 1st section of the Act. But that section enacted that the Court should ascertain and be supplied with information as to certain things, in the form of a schedule, among such things being the improvements made wholly or partially by the tenant, or at his cost, the nature and capital value thereof, the dates on which they were made, and the deductions from rent (if any) made on account thereof. How that absolved the tenant from giving all the aid in his power to enable the Court to get all necessary information passed his comprehension. Of course, if a tenant, having full knowledge of improvements that he had made, and of what he claimed, chose to refuse to give particulars, and thereby impeded the Court in arriving at a conclusion, his claim would very properly be disallowed. A litigant could not be excused from stating what his claim was. The obligation on the Court to ascertain the facts did not free the tenant from the obligation of informing the Court of the particulars of claim. No hardship was inflicted upon a tenant by requiring him to conform to the rules of the Act. He came now to Rule 133.


said that the right hon. and learned Gentleman had not explained why a similar obligation was not east on the landlord.


said that since the passing of the Act now in force for 16 years, he did not think there had been more than a few cases in which the landlord asked to have a rent fixed. [Cries of "Oh, oh!"] Primâ facie the improvement belonged to the landlord, and the first valuation directed to be made was made on the assumption that the improvements were the landlord's. The first section of the Act provided, among other things, that all these matters were "to be ascertained" and set out in the prescribed schedule. The hon. Member had not pointed to a single item in the schedule ultimately adopted by the Commissioners which was not provided for in the Act. He challenged him to do so. The "pink paper" had been adopted as at schedule to the Act, and the Commissioners were bound under the terms of the Act to preserve as far as possible that schedule. The had simply recast the schedule, shortened and condensed it; but they had required nothing to be specified in the new schedule which was not required in the "pink paper." He would not attempt at such an hour to trespass on the time of the House by going through the schedule point by point, section by section, but he assured the House that he had gone through the schedule most carefully, and could state with the utmost confidence that there was not a single requirement in the new schedule that could not be found in the schedule attached to the Act. What were the two objections taken to the schedule as framed by the Commissioners? They were founded on a judgment of Mr. Murrough O'Brien, and his objections might be divided into two heads. First, Mr. O'Brien said, that proximity should not be taken as a separate subject of valuation. But this was one of the things that the schedule attached to the Act required, and, therefore, he had no hesitation in saying, that had the Land Commissioners in framing the new schedule left out "proximity," as a matter upon which a separate value should be placed, they would have acted in direct contravention of a duty imposed upon them by an Act of Parliament. They had set out "proximity" as a circumstance upon which a value should be placed, and remoteness as a fact to be taken into account in reducing value. What were the other matters on which the hon. Member objected, founding his objections on the judgment of Mr. Murrough O'Brien, in which judgment Mr. O'Brien apparently did not confine himself to the proper duty of at judge—namely, to administer an Act, but went on to condemn its policy. [Cries of "Oh, oh!"] The position of a judge did not confer the right to condemn the policy of that Act which Mr. O'Brien had chosen to assume. The second head of the objection was that, according to the requirements of the schedule framed by the Commissioners, valuers were required to value the land as distinct from the buildings upon it.


begged to interrupt the right hon. and learned Gentleman on a point of order. Was it in order to state that a Commissioner, whose salary was a charge on the Consolidated Fund, acting judicially, exceeded his duty as a judge in delivering a judgment?


I do not quite know what is the position of Mr. O'Brien. I understand he is not a Judge of the High Court. I do not think that in anything he has said the right hon. and learned Gentleman has gone beyond the proper limits of Debate.


resumed his remarks on the objection to the valuation of buildings separately from land. The schedule, no doubt, required this separate valuation, and Mr. O'Brien said this should not be done, but that the buildings should go with the farm and should not be valued separately There were three or four answers to that. In the first place it had been the invariable practice of the Land Commission from 1882 until now; secondly, there had been no inconvenience experienced from it; and, thirdly, this was the principle of one of the best valuations ever made in Ireland. Griffiths' valuation, the Poor Law valuation conducted under Sir Richard Griffiths, was based on the principle of valuing land and buildings separately. The fourth answer was that Mr. Morrough O'Brien, in a case which attracted the most attention to the exercise of his powers as a land valuer, and for which he was greatly praised, namely Adams v. Dunseath, he himself had valued the land separately from the buildings. He failed to see, therefore, how a gentleman who in the most conspicuous case in which, perhaps, he was ever employed, valued land separately from buildings, could say that the Commissioners were open to his condemnation because they adopted the same course. ["Hear, hear!"] The schedule attached to the Act in its first part required that land should be valued separately from buildings, and the Commissioners were bound to carry that out. It provided for different qualities of land being valued according to their class and quality, entirely irrespective of the fact whether buildings were upon them or not. The Commissioners had no power to put aside the duties and obligations cast upon them by the statute. The hon. Member for East Mayo seemed to be under the impression that injustice might be done to the tenants by this mode of procedure. There was no well grounded apprehension whatever for anything of the kind. No valuer who knew his business would first value the whole farm with the buildings upon it as a going concern, and then in addition to that, value the buildings and add their value to the value so found, so as to make the tenant pay twice. Mr. O'Brien himself did not do it, and no valuer knowing his business and acting with a proper sense of his duty would attempt to adopt such a principle. ["Hear, hear!"]


remarked that it was extremely kind of the hon. and learned Gentleman to make the defence he had done for the Land Commission, and it was in accordance with his well-known spirit of generosity, because if ever a man had been flouted by that body it was the hon. and learned Gentleman in the advice he gave to the House while the Land Act was passing through. His opinion as a high Law Officer was flouted by the Land Commission in a gross and irregular manner, and his opinion, though reversed and held to be bad, was upheld by the Court of Appeal. ["Hear, hear!"] The Attorney General must have felt the action of the Land Commission very keenly, and in coming forward to defend a body with regard to which he was sure he yielded to no man in his contempt, did a very generous act. [Laughter.] The duty was not fairly cast on the Attorney General to defend the Land Commission. He could imagine nothing more unfair than to cast on the Government of the day, which might be wholly opposed to the administration of Land Acts, or the policy which called them forth, the duty of defending rules which they might have never seen or been consulted about. However, the Attorney General, in the exercise of his generosity, had come forward as the defender of the Land Commission. It was said that the Land Commission were anxious to follow out in letter and in spirit the directions of Parliament. A body which neglected the first direction of Parliament deserved impeachment, because the House of Commons, being a High Inquisition, was entitled to know what this body was doing. There was in the forefront a statutory provision that any rules that the Commission made should be laid before Parliament, within three weeks after they were made if Parliament was sitting. Yet the Commission flouted, defied, and derided the law of Parliament, and it was said the interests of humble cotter tenants in Ireland were safe in its hands. This pinched the landlords as well as the tenants, and he waited to see what the Attorney General would say in that regard.


said he had already, in answer to a question, stated that it was by a pure accident that these rules were not laid on the Table at the proper time, and was entirely due to the unfortunate illness of the officer responsible.


remarked that it was said to have been by "a pure accident" that a policeman was shot in Manchester in 1867, but all the same three men were hanged for that pure accident. But here was the Land Commission, the officials of which received from £3,500 a year downwards—which had the most expensive staff in the world—formerly it was said it cost a sovereign to lend a tenant a sovereign, he supposed that was not the case now—and spent £150,000 or £200,000 in one way or another, which was supposed to "search the Scriptures" to see how they could benefit the Irish tenant, flying in the face of the House and neglecting to comply with the rules of Parliament, as to laying its rules on the Table at the proper time.


said the question before the House was not whether the rules were laid on the Table at the proper time, but whether the specific rules in question should be annulled.


said his point was that the Government should under the circumstances give special time for the consideration of the rules, but he would obey the direction of the Speaker. According to the statement of the Attorney General, it was owing to the action of some disembodied Spirit, whose name did not even figure on the lips of the right hon. Gentleman, that this extraordinary defiance of Parliament had taken place, and they accepted that statement, in the words of Mr. Rhodes, with "unctuous rectitude." It was true, as the right hon. Gentleman had said, that the rule he mentioned had been since 1882 a rule of the Land Commission. That was exactly the point of the case. In 1882 the rule was made at the instance of the House of Lords. The right hon. Gentleman explained that there were no rules of this kind made in favour of or against landlords. The reason of the omission was that the rule was made in a hostile sense against the tenants by a hostile body—the landlords in the House of Lords—["hear, hear!"]—who let the landlords off scot free. He said that the landlords never brought any cases. He (Mr. Healy) recollected that Lord Devon brought no less than 50 cases of applications to raise rents. Lord Longford, the Marquess of Headford, and others brought similar cases. He said frankly that he did not think it was any great hardship on the tenant that the landlord should not give notice of making improvements because they never made any. ["Hear, hear!"] He listened to the argument of the Attorney General, but he thought the right hon. Gentleman missed the point, which was that the rule was constitutional and statutable. Up to the passing of the Act of 1896 it was the same old rule that remained in existence. He thought the right hon. Gentleman would have been well advised if he had said the Debate could not go on, as he had not had sufficient notice, and that he would get the defence of the Land Commission and let the House decide later whether their reasons were right or wrong. That would have been a reasonable view for the right hon. Gentleman to have put forward, but that was not the view that he did present to the House. Accordingly, they had to consider this: Did the Act of 1896 make a difference? Would anyone say that if the House of Lords had carried an Amendment enjoining that the improvements should be recorded by the tenant, that that Amendment would not have had an effect? He had never made a complaint that the tenant should be compelled to give notice of his improvements in certain cases. It tended to make the tenant accurate in making up his case, and, above all, it tended to make the solicitor of the tenant accurate in presenting his case. He was glad to see the other day an action brought by a tenant against his solicitor because the solicitor neglected to make a schedule of the improvements, whereby the improvements were disallowed. Why did not that attorney, when he knew that the action was threatened, say to the Court, "It was my mistake," and apply to the Court for liberty notwithstanding to make proof of the improvements? He did not do so because he knew that the Land Commission, if the tenant had by any inadvertence failed to give notice of his improvements, would not allow fresh proof of the improvements to be given even though those improvements might be as obvious as the Clock Tower to anyone passing over Westminster Bridge. In his opinion, the Act of 1896 had made a difference. The Land Commissioners were told by that Act that they must ascertain and make a record of the improvements. He did not deny that the Land Commission was entitled to the assistance of the parties in the case, but he said that where there was no real intention of flouting the rule the duty was cast on the Land Commission to ascertain the improvements for themselves. Why did the Land Commissioners go on the land? To use their eyes. If they saw bog on one side of a ditch, and reclaimed land on the other, the obvious conclusion was that there had been reclamation, and if the tenant failed to put down ten acres of bog reclaimed, was he to lose the benefit of those improvements? This schedule was put in by the House of Lords with the view of quieting the landlords in possession, and of providing that in 1897 the improvement should be earmarked for all time, so that it would no longer be possible to plead loose practice on behalf of the tenant. The 15 years' term from 1897 would be 1912. The Act enabled the tenant to go back to 1881; and in order that the tenant could not say in 1912 that he failed to claim in 1881 because he did not come in till 1882, and that he failed to claim in 1897 because he forgot to endorse his notice, the House of Lords said, "We will cast on the Land Commission the duty of ascertaining and recording all improvements." The Land Commission was a Court of inferior jurisdiction, and he was not at all sure that if the Commission were served with a mandamus and the case was heard by a fair Court of Queen's Bench, which did not always happen, they could not be compelled to do the duty. Therefore the Government had better not divide against the Motion. The landlords were asleep, naturally. If this were a question of Canon Gregg or of the Battle of the Boyne, they would be wide awake. The Government should ask the Commission what value they attached to these words in the Act of 1896. It was not a body for whose accuracy anyone need have any respect. The test of any tribunal was the legal opinion of it, and did anyone in Ireland respect the Irish Land Commission? There was no duty on the Government to defend these rules. The Commission had committed blunder after blunder, they were held in no degree of confidence or esteem either by the landlords or the tenants. He thought this was a case for inquiry. The question of improvements went to the root of the whole question. It was one of enormous importance, and they should not be expected at that hour of the morning to come to a conclusion on the matter. For the purpose of enabling the Government to address to the Land Commission an inquiry on the point, he begged to move "That the Debate be now adjourned."

MR. JAMES DALY (Monaghan, S.)

seconded the Motion.


said the Government could not accept the Motion. The Speaker had suggested that the hon. Member for East Mayo should postpone the discussion until these rules had been printed, but as the hon. Member declined to accept that suggestion, and as the discussion had gone on for nearly two hours, he thought they must ask the House to come to a decision. The hon. Member for Louth had not raised any points which were not raised by the hon. Member for East Mayo. Those points were carefully examined and gone through by his right hon. Friend, and he thought the House would come to the conclusion that his answers were perfectly satisfactory. ["Hear, hear!"]

Question, "That the Debate be now adjourned," put, and negatived.


said that though they would vote with the Government against the Motion of the hon. Member for East Mayo, they must not be understood as being satisfied with the schedule as it stood. They were of opinion that many of the particulars which the Act intended should be recorded in it were not so recorded, and they must not be understood as acquiescing in the schedule as giving all the information which they thought both landlord and tenant were entitled to.

Original Question put.

The House divided:—Ayes, 40; Noes, 101.—(Division List, No. 98.)

And, it being, after One of the clock, Mr. Speaker adjourned the House without Question put.

House adjourned at a Quarter before Two o'clock.