THIRD READING. (Hansard, 29 June 1877)

THE EARL OF ROSEBERY
said, that in Committee he had proposed an Amendment to the 4th clause, with the view of remedying some complaints which had been made with respect to "compensation for game harboured on the lands of the lessor," and he promised to consider the matter. After having given it that consideration, he had come to the conclusion that the complaint would be remedied by leaving out the words which had reference to game that might be harboured on the lands of the lessor to which the reservation or retention applied. He therefore proposed that those words should be omitted.

THE EARL OF SELKIRK
moved to insert a new clause to follow Clause 7— Where in any lease made subsequently to the passing of this Act a lessor and lessee have agreed that any claim of damage arising under this Act shall be referred to arbitration, the same shall be referred to arbitration in the manner, and subject to the provisions mentioned in the lease, but if the lease contains no provisions as to the manner of arbitration, or if for any reason such provisions cannot be observed, then the arbitration shall be conducted in the manner hereinafter in this Act mentioned. As he had already pointed out, if the clause were left as it now stood there would be two sets of arbitrators, one 481 appointed under the Act, and the other named in the lease. The effect of this would be that the former would supersede the latter, who had been chosen by the parties.

THE EARL OF ROSEBERY
said, that when on a former occasion the noble Earl brought forward his Amendment, he used the argument that where there were general clauses of arbitration in the lease it would be more convenient and would cause less confusion if the arbitration under this Bill were confined to those general clauses. But under this new clause, as proposed by the noble Earl, the ground for his previous contention obviously disappeared, because the clause spoke of a particular arbitration in the lease. The arbitration in the Bill was therefore to be set against an unknown arbitration, composed of unknown words. What would they gain by the clause? They would not gain under it the convenience of referring to general arbitration the particular arbitration of matters affecting game. They simply gained the substitution of particular words of the noble Earl's unknown arbitration for the particular kind of arbitration laid down in the Bill; but it stood to reason that no one would wish to change simplicity and uniformity for needless variety; and no one would wish to exchange a known method of arbitration for an unknown method. It might be in the case of a bad landlord that his own factor would be appointed arbitrator; and in that case the clause would have no effect at all. The main object of the Bill was to set at rest the agitation that now existed on the subject in Scotland; but if they allowed persons who were carrying on that agitation the possibility of availing themselves of the noble Earl's Amendment, they would be far from settling the agitation, as it was hoped they would be able to do by the Bill.

THE LORD CHANCELLOR
said, there seemed to be some misunderstanding as to the exact position of the question. His noble Friend (the Earl of Rosebery) said that when in any lease there was an arbitration clause there was no reason why any disputes which arose under this Act should not be settled by the arbitrator appointed by the lease. But his noble Friend had forgotten that the Bill did not apply to any existing lease, but only to future leases, and 482 therefore they might put aside all reference to cases where there was at present a machinery for arbitration. With regard to future arbitration, if there was to be any arbitration at all, he was bound to say that there could not be a fairer machinery than that which was provided by the Bill. Each party chose their own arbitrator, who, in case of disputes between themselves, appointed an umpire who would decide between them, and to such an arbitration as that he did not think that any objection could be made. The Bill, as it stood at present, only provided that arbitration should take place after disputes had arisen, and only in case the landlord and tenant agreed to refer it to arbitration, instead of going into Court. He stated on a former occasion, when the noble Earl on the cross benches (the Earl of Selkirk) proposed his Amendment, that it appeared to him that it would be a very reasonable alteration to make in the Bill, and that it would be an improvement if, instead of providing that any disputes that might arise should be settled by arbitration, a provision could be introduced into the Bill by which the landlord and tenant could stipulate once and for all that, in case of any disputes arising between them under the Act, they might be referred to arbitration under the arbitration clause of this Bill; and he was bound to add that he was to some extent responsible for the drawing of the clause, and he put in those words to give effect to the views of the noble Earl. At the same time, it might be said that they went too far and prescribed a mode of arbitration, and also that some of the subjects of arbitration might be different from those described in the Bill. He thought that the real remedy would be some slight amendment to the 6th clause. He proposed to add the words— In any lease made subsequent to the Act, such question should he referred to the arbitration provided in the Bill. That would make the landlord and tenant coming under the operation of the Act say at once whether they chose to have any disputes referred to the arbitration under the Act or not, and he thought that if those words were inserted they would meet the views of the noble Earl.

THE EARL OF ROSEBERY
quite agreed with the Amendment proposed 483 by the noble and learned Lord on the Woolsack.

THE EARL OF SELKIRK
said, that all he wanted was that there should be no doubt as to the power of the landlord and tenant to refer any disputes that might arise under a lease to the arbitrators appointed by the lease, and he understood that when the Bill was passing through the House of Commons there was no objection to such a provision being made; but, to his astonishment, when the Bill came into their Lordships' House, he found it was not inserted. He did not think that the Amendment suggested by the noble and learned Lord on the Woolsack would meet the case as completely as the clause he proposed.

§ EARL GRANVILLE
preferred the words suggested by the noble and learned Lord on the Woolsack to the clause now suggested.

THE DUKE OF RICHMOND AND GORDON
expressed himself of the same opinion. The only objection of the noble Earl was that the Bill set up an unknown system of arbitration in Scotland; but he thought their Lordships would agree to the proposal of the noble and learned Lord on the Woolsack, and reject the clause of the noble Earl.