COMMITTEE. (Hansard, 8 May 1876)

THE MARQUESS OF HUNTLY
said, that before their Lordships went into Committee he wished to make a few observations. In the first place, he had endeavoured to ascertain the feeling of the people of Scotland with regard to the Bill, and numerous suggestions for its improvement had been made at their spring meetings by the Commissioners of Supply and others. Having gone carefully through these proposals, and also through the clauses of the Bill, he thought that the measure was altogether unworthy of their Lordships' approval, and therefore he had not put down any Amendments for Committee. The reason he had formed that opinion was this—he found that there was a general feeling throughout the country, expressed by parties representing different classes of opinion, that this Act would remain a dead letter. It would be in their Lordships' recollection that last year, during the discussion upon the Agricultural Holdings (England) Bill, it was pretty generally expressed in both Houses of Parliament that one of the reasons for the introduction of that Bill was the absence in many parts of England of any agreement between landlord and tenant; and upon the occasion of the second reading there was a long discussion with respect to freedom of contract. On that subject, he (the Marquess of Huntly) expressed himself in favour of making agreements in writing between landlords and tenants compulsory—indeed, in his opinion the chief argument in favour of the English Bill was, that it would permit agreements in writing— 185 and in order to make the Bill more express on that point he moved on Report a series of clauses. The noble Duke (the Duke of Richmond and Gordon), however, considered such clauses unnecessary. "Well, the Act having passed, what had been its effect? In many parts of the Midland counties, where agreements were not usual, the landlords and tenants had contracted themselves out of the Act, and had gone on just as before. Then, with respect to Scotland, if the Bill was necessary in England where agreements in writing were not the rule, was it necessary in Scotland where agreements were universal? Surely, if landlords and tenants did not take any advantage of the Act where there were no agreements, was it to be expected that they could do so where there were not only agreements but long leases? The conclusion that he had arrived at was that this Act would remain a dead letter. It appeared to him to be utterly useless to make any Amendment whatever on it, and the best course to pursue would be to allow the Bill to pass as it stood, and let the landlords and tenants adopt what part of it they thought fit. On these grounds he did not intend to propose any Amendment.

THE DUKE OF ARGYLL
asked the noble Duke what reasons had induced him to think it necessary that oversmen of the Referees should be appointed by the English Inclosure Commissioners? He could not understand why there should be any introduction of the English Inclosure Commissioners into a measure for Scotland. It seemed to him that in Scotland the Sheriff was the natural party to be applied to to appoint the oversmen.

THE DUKE OF RICHMOND AND GORDON
said, that the only reason for inserting the Inclosure Commissioners was, that they had great experience in matters of this kind; but there was no sort of objection to substitute the Sheriffs, 186 if the noble Duke thought they would do the business better. He would consider the matter, and if it seemed desirable, would bring up an Amendment on the Report.

THE DUKE OF ARGYLL
moved an Amendment to the effect that nothing in the section should extend to a contract for tenancy in writing for a period exceeding one year, or to a case where the tenant possesses upon tacit relocation following upon such written contract. The position was this—By the almost universal practice in Scotland a farmer held his land either for a 19 or a 21 years' lease, and the conclusion of the lease was itself a notice to quit, the tenant fully understanding that at the end of the lease, unless it was renewed, he would have to remove. But under the old common law of Scotland, the tenant was under what was called "tacit relocation," unless he got 40 days' notice to quit. Now, in almost every case the question as to whether the tenant was to quit or to have a new lease was determined long before 40 days. But by this clause it was provided that the tenant should know for certain 12 months before the determination of the lease whether it was to be renewed or not. As regarded yearly tenancies a 12 months' notice might be very reasonable; but as regarded tenants under lease it would have no effect whatever, for it was usually determined in the month of August or September whether the lease should be renewed or not. The notice, therefore, was not necessary, except when the tenant was about to be changed; but now the landlord would have to give the tenant a notice of 12 months in every case.

THE DUKE OF RICHMOND AND GORDON
said, that before he replied to the noble Duke opposite, he must take notice of what had fallen from the noble Marquess (the Marquess of Huntly). The noble Marquess, who had criticized this Bill with some severity, expressed his opinion that it would be wholly inoperative, and stated that he had ascertained the prevailing feeling 187 in Scotland to be that it would be a dead letter; and therefore he looked upon it as so much waste paper, and that it was not worth while to attempt to make any Amendment on it. He (the Duke of Richmond and Gordon) took a very different view. He believed the Bill would be a very useful measure, and though, perhaps, not so applicable to Scotland as the English Act was to England, it would do a great deal of good, because it introduced into Scotland for the first time the principle that the presumption of law was in favour of the tenant; and that the tenant who had laid out money on the land, and who had not been able or had time to recoup himself for the money so laid out, ought to be entitled to receive remuneration for the capital which he had expended. Though, of course, it would not apply to leases, yet in many parts of Scotland there were holdings not under leases, and those holdings would therefore come within the purview of this Bill. The noble Marquess had told them, in regard to the English Bill, that in some parts of England—the Midland counties—where there were not any written agreements, the Bill had not been taken advantage of, and that the landlords of the Midland counties had not thought fit to adopt the Bill, believing it better to go on without any written agreement at all. Therefore, the noble Marquess argued, this Bill would be inoperative in Scotland, and be a dead letter. His (the Duke of Richmond and Gordon's) opinion was that if it were so, the landlords in the Midland counties did not know their own interests; but even if they did not adopt the Act that was no reason for not applying it in Scotland, and in his belief it would be a benefit to that country. The noble Marquess had stated that the Bill had been discussed at several meetings of the Commissioners of Supply in various parts of Scotland. No doubt that was so. But he did not gather from the statement of the noble Marquess that the opinions they had expressed were unfavourable to the measure. On the contrary, he gathered from what had taken place at those meetings that those who represented the agricultural interests throughout Scotland were favourable to the operation of the Bill. As to the Amendment suggested by the noble Duke (the Duke of Argyll), he was sorry he could not accept it. The law with reference to leases was 188 as the noble Duke had described it. In England leases expiring required no notice to be given to the tenant; but in a tenancy from year to year a 12 months' notice was now required where formerly six months only was required. In Scotland leases could not be determined without 40 days' notice, and therefore they were in exactly the same position as to notice as yearly agreements in England. If a 12 months' notice was now required for the determination of a yearly tenancy, he did not see that the tenant in Scotland should be placed in a different position. In fact, the whole point at issue between the noble Duke and himself was, whether the notice should be 12 months. The noble Duke said that as regarded yearly tenancies he thought the 12 months' notice might be fairly adopted. That was an inconsistency which he was not prepared for. The noble Duke proceeded to say that when tenancies had become annual holdings by tacit relocations they should not be entitled to the same notice as other tenancies were entitled to. But when once a tenancy became a yearly tenancy, whether by agreement or tacit relocation, it was equally entitled to a year's notice. This proposal for a year's notice was by no means new. The subject was one, as the noble Duke was probably well aware, that attracted the notice of high authorities, and in 1853 a Bill was brought in by the then Lord Advocate (Lord Moncreiff), by which the farmer was placed not in a better but in a worse position than before. Then, in 1872, Mr. Caird published an address which was adopted by the Scottish Chamber of Agriculture, in which he expressed his opinion of the utter inadequacy of the 40 days' warning, and recommended that no agricultural tenant should be removable unless after 12 months' notice. He could not understand how the noble Duke could have an objection to the 12 months' notice, or how it could be an injury to the landlord. On the contrary, he thought it was a benefit to the landlord, and he was sure it was to the tenant.