NEW CLAUSE.—(Definition of predecessors in the same family). (Hansard, 23 May 1930)

§ The SECRETARY of STATE for SCOTLAND (Mr. William Adamson)
I beg to move, "That the Clause be read a Second time."
Under Sections 8 and 9 of the Act of 1886, which provide compensation to landholder and cottars respectively for permanent improvements, it is essential that the improvements shall have been executed or paid for by the landholder or cottar, or his predecessors in the same family. The expression "predecessors in the same family" is not defined, but a meaning has been given to it corresponding to the meaning given to "members of the same family" in Section 16 of the 1886 Act, and Section 21 of the 1911 Act, where a member of the same family as the landholder is his wife, or any person who, failing nearer heirs, would succeed to him in case of intestacy. To these persons, Section 13 of the Act of 1919 added the son-in-law, but that Section has no application to the meaning of "predecessors in the same family." This new Clause defines "predecessors in the same family" in a way corresponding to the meaning given to "family" by the Sections already mentioned, and thereby meets a point which was raised by the promoter of the Bill in Committee. Where a landholder is succeeded in a holding by a daughter who is married, her husband, instead of herself, is, it is alleged, registered as the holder; the landlord insisting on this. As the late landholder was not his "predecessor in the same family," the result is that in the event of his renunciation, or being removed from the holding, improvements provided by his father-in-law would not carry compensation. In order that the omission may be remedied, I move the Clause which stands in my name.

§ Mr. SCOTT
I should like to say, on behalf of my colleagues and myself, that 729 we propose to support the new Clause which has been moved by the Secretary of State for Scotland.

§ Mr. MacROBERT
I am afraid that I do not understand the Clause, as explained by the right hon. Gentleman. Does the reference to "predecessors in the same family" relate only to Section 8 of the 1886 Act?

§ Mr. W. ADAMSON
Sections 8 and 9.

§ Mr. MacROBERT
Does it not refer to the 1911 Act at all? Does it not refer to Section 2 of the 1911 Act? If the right hon. Gentleman will look at Section 2 of the 1911 Act, Sub-section (1), paragraph 3 (a), he will find a reference there to the predecessor in the same family. If these words "predecessors in the same family" are intended to be applicable to the whole of the Landholders Acts, then, of course, you require to interpret "predecessor in the same family" in Section 2 of the 1911 Act in the same way. I cannot believe for a moment that the point is being made or can be made that the words in this particular Clause do not cover the words used in Section 2 to which I have referred. Throughout these Acts there is reference in some cases to "predecessor in the same family" and in other cases the reference is to "predecessors." I believe the term means the same thing, and, accordingly, I am right in saying that if we put this new Clause into the Bill we shall require to construe the words to which I have just referred in Section 2 of the Act of 1911 as including all the people who are covered by the amending Clause.
I am sorry that the Lord Advocate is not here, because this is a very technical point, and I think it is fundamental. If I am right in my view that the term "predecessors in the same family" is the same thing as "predecessor in the same family"—the interpretation Act says that the plural is meant to include the singular and the singular the plural—it is quite clear that the words "predecessor in the same family" under Section 2 of the Act of 1911 would fall under this amended definition. I understand that the hon. Member for Kincardine (Mr. Scott) agrees with me in that view. As the hon. Member for Kincardine is the promoter of the Bill and also a lawyer he will perhaps check me if I am not right in the view that this new 730 Clause must be read into Section 2 of the Act of 1911. If that be so, look at the horrible position in which we are placed, that if we read these words into Section 2 of the Act of 1911 we require to revise the position of all the existing statutory small tenants, because if we are going to widen the definition as proposed by this new Clause we widen the reference to the words in the Act of 1911, which will then read: Provided that such tenant from year to year or leaseholder: (a) shall (unless disqualified under section twenty-six of this Act) be held an existing yearly tenant or a qualified leaseholder within the meaning of this section in every case where it is agreed between the landlord or tenant or leaseholder, or in the event of dispute, proved to the satisfaction of the Land Court, that such tenant or leaseholder or his predecessor in the same family has provided or paid for the whole or the greater part of the buildings, etc. The question, is, have they provided the greater part of the buildings. It is obvious that if you are going to include all the fathers-in-law and all the husbands and wives, as you are entitled to do under this new Clause, you will require to revise every statutory small tenant that exists at the present time. I think that is quite clear. If you are going to alter and widen the definition, a statutory small tenant can come forward and say: "It is true that I did not provide or pay for the whole or the greater part of the buildings, according to the definition in the Act of 1911, but if you judge by the test of the new Clause, I come under it. Therefore I am a land holder." If that is the intention of the Government, I think it is a very unwise thing to do. I do not think that we should open up the position of men who have perhaps been statutory small tenants for a generation, and give to them now the right to come in upon a different definition and to claim the right to be landholders. Accordingly, we are entitled to some explanation in regard to the second point, or a statement that "predecessors in the same family" is not meant to cover any other case than the two cases referred to by the right hon. Gentleman namely, Sections 8 and 9 of the Act of 1886. If he says that that is the only intention of the Government, I do not think the new Clause gives effect to that intention.

§ Mr. SPEAKER
proceeded to collect the voices, and declared that he thought that the "Ayes" had it.

§ Sir JOHN GILMOUR
May we not have an explanation from the Under-Secretary or the Lord Advocate?

§ Mr. MACPHERSON
On a point of Order. I think you had collected the voices, Mr. Speaker.

§ Mr. SPEAKER
Yes, there were no "Noes." I will, however, put the Question again.

§ Mr. MacROBERT
I desire to move an Amendment in order to make the Clause sense. As it stands at the present time it seems to be nonsense.

§ Mr. SPEAKER
I am afraid that I cannot accept an Amendment now, because I have already proposed the Question, "That the Clause be added to the Bill."

§ Mr. MacROBERT
I should like an explanation from the Lord Advocate. This Clause is going to make the land laws of Scotland more difficult than they are at the present time.

§ Mr. E. BROWN
Why did you not vote against it?

§ Mr. MacROBERT
Because it is not for me to make this Bill intelligible. It will become so unintelligible if certain Amendments are made that no one will be able to follow it, and it will be repealed at the first opportunity. The hon. Member for Kincardine (Mr. Scott) knows the point I am making, and so do the Secretary of State and the Under-Secretary of State. If this new Clause is to be made applicable to the whole of the Landholders Acts, including the Act of 1911, the question is whether this new definition—

§ Major MACKENZIE WOOD
On a point of Order. May we know what we are discussing?

§ Mr. SPEAKER
The question is that the Clause be added to the Bill.

§ Mr. MacROBERT
And I am protesting against this new Clause on the ground that it will make the law unintelligible, and I am inviting the hon. Member for Kincardine or the Government to answer the simple question whether the words "predecessors in the same family" cover the case of "predecessor in the same family." I should have thought they did; and, if they do, then this new definition will apply to Section 2 of the 1911 Act, and the moment you apply it to that Section you change the whole basis which at present distinguishes a landholder from a, statutory small tenant and you will have to reconsider de novo the position of every statutory small tenant in Scotland. I am quite sure that the Government did not intend this to be the result of this new Clause.

§ Sir FREDERICK THOMSON
It was rather unfortunate that the Second Reading of this Clause was passed without our making some objection; perhaps we were not quick enough. I hope, however, that the Government will see their way to amend it in another place. The Government desire to secure an amendment to two sections in the Crofters' Holdings Act, which entitles compensation to be paid for improvements which have been made by the crofter or his "predecessors in the same family." This new Clause widens the definition of "predecessor." As far as it refers to the sections of the Crofters' Act of 1886 it is not unreasonable, but, as it is framed, it brings in a much wider circle and might raise difficulties with regard to the position of a statutory small tenant; it might give a claim to a man who has no right to be considered as a smallholder. We desire to secure a small amendment to the Act of 1886 and I hope the Secretary of State will say that he will consider an amendment to that effect being inserted in another place which would make the matter quite clear and effect the purpose in view.

§ Sir J. GILMOUR
I think we must ask for some reply upon a matter of great legal complexity and upon which I do not profess to be able to give an opinion. This new Clause will affect a large number of interests in Scotland, and there is a difference of opinion as to its interpretation, upon which the promoter of the Bill apparently does not think it proper to 733 reply. It is a matter of national importance and might have far reaching effects. If a mistake is made this House is held responsible. The Lord Advocate, who is responsible for carrying out the law, is present and I think we have a right to ask for some reply from him. If there is a defect, as may be the case from what the right hon. and learned Member for Renfrew East (Mr. MacRobert) has said, I hope the Government will see that the question is discussed in another place by those who are thoroughly conversant with the subject and that some change will be made.

§ Mr. W. ADAMSON
We are advised by our legal advisers that we are on the right lines, but if there is any dubiety in the minds of hon. Members opposite, we will examine the question between now and the Bill going to another place. I am quite willing to give that promise.

§ Mr. C. WILLIAMS
Those hon. Members who have taken the trouble to attend and listen to the discussion on this most important Clause are entitled to get a legal answer. I want to know why this complicated new Clause should be added to the Bill. There is a tremendous amount of reference in this Bill. It refers to at least three different Acts and to particular sections in some of those Acts. I should like to know the exact bearing of one or two points in this new Clause to the rest of the Bill. How does this new Clause bear on the case of intestacy, which is most important, and upon which I should like to have a legal definition? We have also a new Clause dealing with the position of the department, and we have, had no explanation as to how the department is going to use this Clause in connection with this Bill and in connection with the Act of 1911. I have heard no reason why this particular provision should be inserted. Then what are the limits of compensation under a further new Clause? Are you increasing the limits or otherwise?

§ Mr. BARR
On a point of Order. The hon. Member seems to be traversing other new Clauses which will come up later.

Mr. DEPUTY-SPEAKER (Mr. Robert Young)
We are dealing with the first new Clause.

§ Mr. WILLIAMS
I beg pardon, I have rather transgressed and I apologise for having added more than I should have done. However, I welcome the intervention of the hon. Member for Motherwell (Mr. Barr) because it will enable the Lord Advocate to give me a clear and precise explanation of the points I have raised. This is a most complicated matter and I think we are entitled to a full explanation.

§ The LORD ADVOCATE
(Mr. Craigie Aitchison): I am sorry that I did not hear fully the speech of the right hon. and learned Member for Renfrew East (Mr. MacRobert) as I was unavoidably detained elsewhere. I am not quite clear as to what is the difficulty. As I read the new Clause no difficulty at all arises. What the new Clause does is to give a definition of the expression "predecessors in the same family," which has hitherto been entirely absent from the Landholders Acts. The reasons why it is necessary to give a definition now are obvious. Shortly they are these: We find that in the absence of a definition holdings are passing out of the hands of families when they ought to remain in the hands of families. This Clause has been moved in order that the matter might be taken quite definitely out of the region of controversy. The Clause says: 'predecessors in the same family' means in relation to a landholder or a cottar the wife or husband of such landholder or cottar … Does anyone object to that? Then it goes on: and any person to whom such landholder or cottar or the wife or husband of such landholder or cottar might, failing nearer heirs, have succeeded in case of intestacy. Who objects to it?

§ Mr. SKELTON
Who are they? What degrees?

§ The LORD ADVOCATE
the hon. Member cannot expect me to give an exposition of the whole law of intestate succession in the course of a Debate. I am not going to take up the time of the House in doing so. The hon. Member for Torquay (Mr. C. Williams) was, I think, on the Scottish Grand Committee when this matter was discussed.

§ Mr. C. WILLIAMS
No.

§ The LORD ADVOCATE
If the hon. Member is really anxious to know, 735 I shall be very glad outside the House to give him the information. In regard to the other points raised, I understand that the difficulty felt on the benches opposite is this: That if you apply this definition generally throughout the Landholders Acts you may confuse or destroy the existing distinction between the smallholder and the statutory small tenant, and I understand that that argument is based upon the language of Section 2 of the small Landholders (Scotland) Act of 1911.

§ Mr. MacROBERT
The only point that I want the Lord Advocate to advise the House upon is whether the words of Section 2 of the 1911 Act, Subsection (1), "predecessor in the same family" is covered by the definition, or whether the Lord Advocate is making a distinction? The word there is "predecessor" but in this new Clause the word is "predecessors."

§ The LORD ADVOCATE
It is true that in this new Clause we use the expression "predecessors in the same family," and that under the Act referred to the expression is "predecessor in the same family." That expression does not matter in the least now, because it only applies as on 1st April, 1912.

§ Mr. MacROBERT
The Lord Advocate has missed the point. The statutory small tenant to-day can come forward and say as from the termination of the lease that he held in 1912, that he paid for the greater part of the building, and if he can prove that he has paid for the greater part of the building, he is a landholder as from that date. Many statutory small tenants will be able to go back to 1912 and say "We were landholders in 1912 as we now find that we do conform to this definition which you put into all the Acts retrospectively."