Clause 3.—(CLAIM HOLDINGS AND THEIR AREAS AND VALUES.) (Hansard, 19 October 1954)

§ The Lord Advocate
I beg to move, in page 3, line 41, to leave out "section in this Act references," and to insert "Act references therein."
This again is a drafting Amendment. The value of a claim is affected by provisions other than those in Clause 3, and the Amendment is put down in order to give effect to that position.

§ The Lord Advocate
I beg to move, in page 4, line 1, to leave out subsection (2).

§ Mr. Deputy-Speaker
The next three Amendments, and the Amendment in page 5, line 9, are related, and might be taken together.

§ The Lord Advocate
There was a criticism in the Committee about the number of matters left to regulations. The purpose of the Amendment I have moved is to get these provisions into the Bill rather than to leave them to regulations. The Amendment, and the proposed subsection (4), provide for the creation of separate claim holdings, each with its own area, where there has been a transmission by assignation or by apportionment of land, of part of the benefit of an established claim.

§ Miss Margaret Herbison (Lanarkshire, North)
All my hon. Friends welcome these Amendments. We raised in Committee the fact that many things were to be left to regulations, so these are very important Amendments indeed. The Lord Advocate ought to have given much greater explanation on this point. Every time I have listened to him or to one of our Scottish Ministers I am reminded of the way in which the English Bill was handled by the English counterparts of our Ministers. On this particular Amendment there was an explanation by the Attorney-General occupying three columns of HANSARD. It is not to be wondered at that my hon. Friends have to get up after the Scottish Minister speaks and to seek for explanations that ought to have been given.
Although we welcome the Amendments, the Lord Advocate ought not to expect us to go to HANSARD for further information and to read the explanations given by the English Attorney-General. 1107 If the Lord Advocate will give some further explanation it might expedite the Bill, which is what he wants to do.

§ Mr. Willis
I wish to ask one question on this very long and involved Amendment, and, in passing, to comment on the rather cavalier manner in which the Lord Advocate is treating the House. We have already deleted a Clause by an Amendment which was most inadequately explained by the right hon. and learned Gentleman, and within about two minutes we have passed another three Amendments. We have now come to a long and complicated Amendment which is to take the place of Government regulations. In other words, this long Amendment sets forth the policy which the Government had in mind when they put the words into the Bill—that they would take powers to make regulations. Therefore, we are discussing something entirely new—what the Government intend to do about this matter—and I should have thought that we ought to have been given a much fuller explanation than we have indeed received.
I wish to ask the right hon. and learned Gentleman whether this Amendment in page 4, line 40, covers the case which I raised in Committee, and which, in spite of a very long cross exchange, was not very satisfactorily answered—the case of a person who has acquired a piece of land on which to build a house and who has since built a house upon it. Does that person now become entitled to the unexpended portion of the development value? That was the question which I raised in Committee, but we left the Committee in protest about the shortness of time before we received a proper explanation on the point. I would like the right hon. and learned Gentleman to say whether this Amendment covers such a case, and whether the person who has bought the land does, in fact, become entitled to the unexpended portion of the claim plus the one-seventh interest.

§ The Lord Advocate
The point does not really arise on this group of Amendments, but the answer to it is that if the transaction took place prior to the coming into operation of this Bill then the claim is a personal claim which does not transmit unless there is a provision in the contract between the purchaser and the 1108 seller. If, on the other hand, it takes place after the Bill becomes an Act, then the unexpended balance would pass along with the land to the purchaser. It would all depend on the date of the purchase and the terms of the contract between the parties concerned.

§ The Lord Advocate
I beg to move, in page 4, line 40, to leave out from beginning, to end of line 44, and to insert: value and an area. (4) Where by virtue of any transmission of part of the benefit of an established claim different persons became entitled to different parts of that benefit, then, as from the date of that transmission (in this subsection referred to as 'the relevant transmission'), each of those different parts shall be treated as having constituted a separate claim holding, and the area and value of each of those separate holdings at any material time after the relevant transmission shall be taken to have been such as may, on the occasion of an apportionment affecting that holding falling to be made for any of the purposes of this Act, be determined by the authority making the apportionment or, where that authority's determination is referred to the Lands Tribunal under any provision of this Act, by that Tribunal, to be just and appropriate in all the circumstances; and in making their determination the authority or Tribunal shall in particular have regard to the following principles, that is to say—

(a) that the aggregate of the values of all claim holdings representing parts of the benefit of the same established claim shall not exceed the amount of that established claim;

(b) that, subject to the preceding paragraph, where a claim holding representing part only of the benefit of an established claim has been assigned to the Central Land Board within the meaning of the Second Schedule to this Act, otherwise than as is mentioned in paragraph 2 of that Schedule, and by virtue of that Schedule any deduction falls to be made from the value of that claim holding by reference to an amount due by way of development charge, the value of that holding at the time of the assignation shall not be taken to have been less than the lesser of the two following amounts, that is to say—

(i) the value attributed to the holding for the purposes of the transaction with the Board; or

(ii) the amount due as aforesaid
1109
(c) that, in the case of the claim holding representing the part of the benefit of an established claim which was the subject of the relevant transmission, not being a claim holding to which paragraph (d) of this subsection applies—

(i) the area of the claim holding should be taken to be the claim area of that established claim less the area of any claim holding to which the said paragraph (d) applies which represents part of the benefit of the same established claim; and

(ii) the value of the claim holding immediately after the relevant transmission should, subject to paragraphs (a) and (b) of this subsection, be taken to have been that part of the amount of the established claim to which the holder purported to become entitled under the terms of that transmission;

(d) that where any person who has been entitled to a claim holding representing part only of the benefit of an established claim—

(i) at any time while so entitled has also been entitled to the interest in land to which the established claim related in so far as that interest subsisted in part only of the claim area; and

(ii) became entitled to both that holding and that interest in such circumstances that the authority aforesaid or, as the case may be, the Lands Tribunal are satisfied that the holding and the interest were intended to relate to one another,
the area of that claim holding should be taken to be that part of the claim area, and the value of That holding immediately after the relevant transmission should, however that or any other transmission affecting the holding was expressed but subject to paragraphs (a) to (c) of this subsection, be taken to have been an amount equal to so much of the amount of the established claim as might reasonably be expected to have been attributed to that part of the claim area if the authority determining the amount of that established claim had been required to apportion it, in accordance with the same principles as applied to its determination, between that part and the residue of the claim area. (5) References in this Act to the fraction of the value of a claim holding which attaches to a part of the area of the holding are references to so much of the amount of the established claim of which that holding represents the benefit or part of the benefit (in this subsection referred to as 'the relevant established claim') as was properly attributable to that part of the area of the holding: Provided that where, by virtue of any provision of this Act, the value of the claim holding at the time in question is to be treated as less or greater—

(a) in a case where the area of the holding and the claim area of the relevant established claim are the same, than the amount of that established claim; or

(b) in a case where the area of the holding consists of part only of the said claim area, than so much of the amount of the 1110 relevant established claim as was properly attributable to the area of the holding,
the amount of the fraction aforesaid shall be treated as reduced or, as the case may be, increased proportionately. For the purposes of this subsection, the part of the amount of the relevant established claim which was properly attributable to any land forming part of the claim area shall be deemed to be so much of the amount of that claim as might reasonably be expected to have been attributed to that land if the authority determining that amount had been required to apportion it, in accordance with the same principles as applied to its determination, between that land and the residue of the claim area.

§ Miss Herbison
Surely the Lord Advocate is not just going to get up in his place and say, "I beg to move" in the case of an Amendment which is not only a very long Amendment, but one which contains very important matter. There are many parts—

§ Mr. Deputy-Speaker
I think I suggested to the Lord Advocate that these three Amendments and the next one might be taken together, and I thought he had done that.

§ The Lord Advocate
I did.

§ Mrs. Jean Mann (Coatbridge and Airdrie)
On a point of order. My hon. Friend the Member for Lanarkshire. North (Miss Herbison) asked that the Lord Advocate should give the House some explanation of this most obtuse and confounding phraseology. I defy anyone to understand it, and I think that out of courtesy alone the right hon. and learned Gentleman should have replied to my hon. Friend.

§ Mr. Deputy-Speaker
When I suggested that these three Amendments and the next one should be taken together, no one in the House took exception to the suggestion.

§ Mr. Hoy
That, Mr. Deputy-Speaker, is quite correct, and no one would dissent from what you say, but one naturally thought that we should have an explanation from the Government Front Bench concerning these Amendments. On the previous Amendment, the Lord Advocate said that certain words were being deleted and that a new subsection was being added for the purpose of clarity. 1111 As my hon. Friend the Member for Edinburgh, East (Mr. Willis) said, this takes the place of the regulations originally provided for in the Bill. It is surely reasonable to ask that the Lord Advocate should give a little explanation of this Amendment, if that is at all possible.

§ Mrs. Mann
If he can.

§ Mr. Deputy-Speaker
I should have thought that the right hon. and learned Gentleman should have been asked this question before we left the first Amendment of this series.

§ The Lord Advocate
The last thing I wish to do is to delay the Committee unnecessarily and, therefore, I will try succinctly and as shortly as I can to give an explanation of the proposed new subsection (4) contained in the Amendment to line 40 which is part of the group that we have been discussing.
This Amendment is primarily a drafting Amendment. It does two things. It sets out in the body of the Bill, instead of in regulations as provided for in subsection (2)—that subsection having been taken out of the Bill by one of the previous Amendments in this group—the provisions covering transmissions by assignation or by operation of law of part of the benefit of an established claim. That is the first thing it does. The second is to embody in its last few lines the substance of Clause 2 (3) which was taken out of the Bill by an earlier Amendment. The new subsection (5), which is part of the Amendment with which we are concerned at the moment, replaces the Fourth Schedule and simplifies its provisions, so that, although it looks very formidable, there is, I think, nothing really alarming in it and no matter of new substance involved in it at all.

§ Mr. Deputy-Speaker
I thought that the Amendment leaving out the Fourth Schedule went with the two Amendments at the bottom of page 3887. Is that wrong?

§ The Lord Advocate
Yes, that is so.

§ Mr. Deputy-Speaker
But not with this one?

§ The Lord Advocate
No.

§ Mr. Hoy
This is rather misleading, because what the Lord Advocate said was 1112 that it went with this one. Now. Mr. Deputy-Speaker, you tell us that it does not go with this one, but with the Amendments at the bottom of page 3887. That is why we are seeking some clarity in the matter.

§ Mr. D. Johnston
I am in a further difficulty. The difficulty to which my hon. Friend the Member for Leith (Mr. Hoy) has referred is a difficulty to which you yourself have referred, Mr. Deputy-Speaker. Does not the second part of subsection (5) deal with the part we have already deleted, namely, Clause 2 (3) of the Bill as printed, as amended by the Scottish Grand Committee? Am I not right in thinking that is so?

§ The Lord Advocate
I do not want to interrupt my hon. and learned Friend, but he is quite right. It is Clause 2 (3), but it is not as amended in Scottish Grand Committee but as amended at this sitting of the House today by the Amendment in page 3, line 15.

§ Mr. Johnston
I appreciate that, but as the result of the Amendment which we made just a few moments ago we have to put in this Amendment to the Clause with which we are now dealing. I follow that part. If I may say so, that is pure mechanics. My difficulty arises from the first part of this Amendment which, as the learned Lord Advocate says, deals with the regulations which were to be made had this Clause stood as it came from the Scottish Grand Committee. What the Lord Advocate has not explained to us is the effect of this provision which is now subsection (4).
I have read these with some little care and I confess I really do not understand what they are intended to do. I do suggest, however, that it is wrong for a Government to put down a lengthy Amendment like this and then to say that it is merely consequential or merely arises from another Amendment. That, I suggest, is not treating the House with the courtesy to which it is accustomed.

§ Miss Herbison
I do ask the right hon. and learned Gentleman to give an answer. If, as the Bill was originally drafted, regulations had been made under it, all hon. Members would have had a chance of examining those regulations. These regulations are no longer to be made, but we now have 1113 incorporated in the Bill what exactly has to happen. Like my hon. and learned Friend the hon. Member for Paisley (Mr. D. Johnston), everyone on this side has difficulty in understanding just what this new part which is being inserted in the Bill really means. I feel that on this side we have a right to ask the Lord Advocate to give an explanation on this point.

§ The Lord Advocate
If I may be permitted to address the House again, I gather that what is wanted is an exposition as to the meaning of the words in subsection (4).
This subsection provides that where a claim has been divided between different people each part of it is to become a separate claim holding. The area and value of each of these separate holdings is to be determined when the occasion for an apportionment affecting the claim holding arises. That will be done by the Central Land Board or by the Secretary of State as the case may be, subject to a right of appeal in accordance with certain principles. Perhaps it would be sufficient were I to indicate three of these principles.
The first is that the sum of the values of the holdings is not to be more than the value of the original claim. That is obviously right. In the second place, where the claim holding, but not the land, passed, the value is to be that part of the amount of the established claim conveyed in the assignation. That is the only reasonable basis upon which to work if we are to try and value the proportion of the total claim holding which has been assigned. Where the claim holding and the land have been associated, the area of the holding is to be taken as the area conveyed, and the value of the holding is to be the part of the original claim which is determined to be appropriate to it, irrespective of how much was actually assigned, calculated in the same way as it would have been calculated under the 1947 Act. That is as briefly and clearly as I can put the substance and effect of this Amendment.

§ The Lord Advocate
I beg to move, in page 5, line 9, to leave out from "holding," to "means," in line 10.
1114 This is only a drafting Amendment. It is identical with the Amendment with which the House has already dealt in page 4, line 27.