HC Deb 18 June 1920 vol 130 cc1636-43

Order for Third Reading read.

Colonel GREIG

I do not propose to discuss this Measure at any length because it has already been fully gone into before the Scottish Grand Committee. Since that time certain information has been laid before those interested in the Bill, and it seems to me that Clause 6 may require a certain amount of adjustment. That is the Clause which makes the Bill retrospective, and it has been indicated to us that possibly some sort of alteration and adjustment will be required. Of course we cannot make such alterations now, but I understand that this can be done in another place.

Lieut.-Colonel Sir S. HOARE

This Bill, I understand, has passed the Scottish Grand Committee, but the representatives of other parts of the United Kingdom know very little about it, and the hon. Gentleman who has just spoken has not explained it.

Colonel GREIG

I did not explain the Bill because the hon. Member for West Edinburgh (Mr. Jameson) is largely responsible for this Measure and he is in charge of the Bill, but in reply to the hon. and gallant Member, I may say—


The hon. Member has already exhausted his right to speak.


I beg to move, "That the Bill be now read the Third time."

I have been in charge of this Measure since it was sent to the Committee, and we have been in touch with the various legal bodies in Scotland and they are all agreed that there will have to be one or two small drafting Amendments. Otherwise it is a perfectly agreed Bill and there is no opposition to it in Scotland. I rather shrink from going into a detailed explanation of such questions as Duplicands of Feu-duties in Scotland, because this Measure deals with an obscure branch of the feudal law in Scotland, and I really think it would be more acceptable to the House if I simply here and now moved the Third Reading. I think that course would be more accept able to the House.


I agree with what my hon. Friends who have already spoken have said in regard to this measure, but I am bound to point out that there must be minor Amendments made, and I trust that no effort will be made in another place to undermine the retrospective character of Clause 6. What Clause 6 does is to date back to 4th April, 1919, and to give feuars is Scotland, who are not otherwise covered by this Bill, the protection that this Clause offers. I am not in favour of trying to weaken the Clause in another place. I admit the dangers of retrospective action of this kind, but I am bound to point out that immediately the decision come to in another place was reached, there was a widespread and general feeling in Scotland that this was a state of affairs that must be remedied by legislation at the earliest possible moment. Clause 6 appears to me to do nothing more than to offer the protection which should have been afforded without delay, but which could not be introduced because of the time necessarily occupied in inquiries of this kind. I hope that nothing will be done to undermine Clause 6; I will go beyond that, and say, on behalf of at least 100 feuars on the Warrender estate in Edinburgh, who have commuted their casualties between that date and the present time, on the only condition that the superior's agent would accept, i.e., two years' feu duty in addition to the feu duty for the year, which is consequently popularly called a triplicand, that that class of feuars should have the protection of this Bill. Partly through timidity, and partly because of the fear that a Parliamentary reform or remedy would not be forthcoming, they commuted on the terms I have just stated, and I think it is unjust that they should be penalised, either be cause of that timidity, or because of a desire to set their house in order, or because of the fear that Parliamentary legislation would not be introduced. On these grounds, while concurring heartily with the hon. Member who supported this Bill, I express very strongly indeed the hope tnat in no respect will it be weakened or amended in another place.


This is a rather curious Bill, and a very curious position. The hon. Member who spoke on the Bill (Colonel Greig) began by stating that it would require some alteration, but that it was not possible to do it in this House, and therefore it had better be done in another place. Such a token of appreciation of that "other place" by a Liberal Member I do not feel inclined to find fault with, I may, however, point out to the hon. Member that the alterations could have been made in this House, and that it would have been perfectly in order for him to have moved to re-commit the Bill.

Colonel GREIG

The fact is, that certain documents and information have only come into our possession since the Committee stage was concluded.


Quite so, but still the hon. Member could have moved to-day to recommit the Bill, and got the Amendments made here. He could have put into the Bill all the Amendments which have been rendered necessary by the information and documents that have now come into his possession. I am, under the circumstances, not surprised that there should be some hesitation on the part of the House in acceding to the Third Reading of a Bill which its promoters admit requires further amendment. The object of this Bill is to amend the law relating to duplicands of feu duties in Scotland. I have taken the trouble to look into the matter. As I understand it, the object aimed at is one with which I can have no sympathy. Apparently, if anybody gets a decision against him in a court of law, and if he is able to exercise sufficient influence to get a Bill brought in here to alter the law on which that decision has been based, he may do so. My information is that in Scotland the courts have held that the feu duty on the entry of an heir shall be payable not for one year, but for three years. As long as other people were called upon to pay it, my hon. Friend who moved the Third Reading was not concerned, but seeing that he has to pay, he looks upon the matter in an entirely different way, and in order to get over the decision which was given in the courts this Bill has been introduced. I think a Bill brought in under such circumstances ought to be approached with a considerable amount of caution. It is to date back for 14 months, to the 4th April, 1919. I was glad to hear the hon. Member for Central Edinburgh (Mr. Graham) say that he deprecated retrospective legislation as a rule. I have always fought strongly against such legislation. I think it is the very worst kind among the many bad forms of legislation which can be undertaken in the present day. But while the hon. Member said it was a bad form of legislation he expressed a hope that the House of Lords would not alter it. I do not quite understand how he reconciles these two arguments. Personally, I hope that the House of Lords will alter the Bill, and I would appeal to the hon. and learned Member for Cambridge University (Mr. Rawlinson), who is one of the few remaining supporters of the rights of contract with whom I have been associated in this House, to support my request, which is, that if we pass the Third Reading of this Bill it must be on the understanding that an Amendment shall be moved in the House of Lords in consequence of the documents which have come to the knowledge of the hon. Member, and that that Amendment shall be supported by the supporters of the Bill. If we could get such an undertaking I have no objection to the Bill going on, but before this House passes legislation which the promoters say requires amendment, we should have an understanding that such amendment will be done in another place.

Colonel Sir A. SPROT

So far as I am aware, and I think I can speak for others in this matter, there is no opposition to the main principle of this Bill on the part of the landowners of Scotland. It seems extraordinary that there should be any doubt as to the precise meaning of the word "duplicand" in an expression which enjoins that a certain feu duty shall be payable every year, and that every, say, twentieth year, a duplicand shall be paid in addition. I believe it arises upon a certain form of words which has been used in certain old feu charters, but in the great majority of feu charters in Scotland that is the meaning of the word "duplicand." This doubt, started by a decision given quite recently in the Court of Session, in which it was held that the word "duplicand" meant that there should be, in that case, three, and not two, years' duty paid. From the landowner's point of view it is desirable that this doubt should be removed for all time. The existence of such a doubt necessarily creates great dissatisfaction, and I believe I am right in saying that from the landowner's point of view there is no objection whatever to the main principle embodied in this Bill.


With the leave of the House, I should like to take up one point referred to by the right hon. Baronet (Sir F. Banbury). This is not a Bill in which the landowning interest is against other interests; it is between two sets of landowners, namely, the feuers and the superiors. In the Scottish feu contracts under the feudal system a superior and a vassal are the great features. In the Scottish feu contract, which is the title deed under which almost all the land in Scottish towns is held, the superior, who is the old proprietor, gives out his land to the new proprietor, who is the feuer, for an annual feu duty. In addition to that, it became the habit to stipulate for a casualty, which may occur at various times, and that casualty, in course of time, came to be fixed generally at double the feu duty. A word was coined. It is called "duplicand," and, accordingly, you have the feu contract stipulating for a feu duty of, say, £10 every year, and a duplicand, say, every 20 years. It is called a "feudal casualty." It used to be held that that necessarily included the feu duty for the year, and that, accordingly, every twentieth year you had two feu duties to pay. Now about the 1850's there was a case, namely, that of the Earl of Zetland, in which that construction was not put upon it. The words under construction in that case were, that a duplicand was to be payable "over and above" the feu duty for the year, and the Court held, upon the words "over and above," that in that year three feu duties were to be paid, namely, the annual feu duty and a duplicand in addition. That holds the field. We do not want to go back upon it, and we have a special provision in this Bill that, where by the use of any such words as "over and above," it is expressly stated that the duplicand is not to include the annual feu duty, then it is not to be included. It was always thought, however, that when simply a duplicand was stipulated for, in the absence of such express and unequivocal words, there were to be two feu duties in that year. Last year, in the House of Lords, a case was under construction, and the words were "for payment of an annual feu duty of (so much), and, further, every twentieth year a duplicand." That is a case where there were just ordinary words, and yet in that case it was held that the duplicand was over and above, and that it meant three feu duties. Of course, that case is the law. One naturally speaks of it with the greatest respect, and it has been accepted as good law in the construction of that deed. Undoubtedly, however, it was against the general understanding of the legal profession and of the superiors and vassals and all parties concerned in Scotland. It was one of those cases in which words, on which the good faith of these contracts depended, had been, under the general understanding, interpreted in a certain way, but in which, when it was dragged into the somewhat hard light of the law courts and subjected to microscopic examination, it turned out that the true interpretation was otherwise. The superiors in Scotland have adopted an almost unanimous attitude towards this. They admit that that was the good faith of the contracts and the understanding underlying those words. There has been no opposition from them, but cordial support, and they have held up many transactions in order to await this Bill. The object of the Bill is to set up a canon of construction of feu contracts, and to lay down that, unless there are unequivocal words expressing that there shall be three feu duties in that year, it shall only include two feu duties. There is also a most important Clause providing that, where a superior in the past has accepted the two feu duties for the year, he shall be bound by that practice under which he himself has interpreted it. All sides are at one upon this Bill. I am sorry that the word "duplicand" appears not to lend itself to such thrilling treatment as the words "pauper litigant," but I hope that this other little Scottish Bill will go through.


May I ask my hon. and learned Friend whether he will undertake, as I think is very necessary after his explanation, that the Clause making this retrospective shall be amended in another place?


I am sorry to say I see no chance of my becoming a peer within the next week or two, and, therefore, I cannot give such an undertaking. There is no doubt, however, that one or two drafting amendments will necessarily have to be made, and I am sure that the matter will be gone into in the Lords. After all, they are the authority, because they had the case in their hands, and, no doubt, they will take a great interest in the matter.


Supposing that the Lords struck out the Clause?


I certainly will not raise any objection. I know that there is great opposition to this Clause in, perhaps, the largest conveyancing body in Scotland, the Procurators of Glasgow, from whom I have had representations. This Clause was put in because the under- standing of the law was changed at the time of that decision, and the idea was that the principle should be that the law should run on, so to speak, continuously. The Procurators of Glasgow have represented that, once a thing like that is done, you cannot go back upon it. A tremendous number of sales of feu duties, land, and so on, have been carried through in the meantime on the footing of that law as it stood, and they said that really you could not remedy the whole injustice now, if there has been any. I certainly will not oppose the deletion of the Clause.


I was very glad to hear the explanation of the hon. and learned Member (Mr. Jameson). Without it, I certainly should have protested against the passing through this House, without explanation, of a Bill involving important principles of retrospective legislation. I scarcely remember any Bill passing through this House in which the general body of hon. Members could survive an elementary examination, and certainly no one could possibly have understood without explanation what this Bill was or what was the principle involved in it. Even now I am not sure that I quite understand what a "triplicand" is; but, having regard to the evident anxiety to proceed to the next Order, I shall not detain the House further by going into that point.

Question put, and agreed to.

Bill read the Third time, and passed.