TITHE RENT-CHARGE RECOVERY BILL.—(No. 70.) (Hansard, 23 March 1891)

§ *THE EARL OF SELBORNE
My Lords, I cannot help making a few observations upon some of these Amendments, though I shall confine myself to only those which appear to me to require it. I offer no remarks as to the possession clause; because I assume that it will be returned to the Commons in an amended form. I observe that the Commons have struck out the clause in which it was proposed by your Lordships that costs vexatiously or oppressively occasioned might be ordered by the Court to be recovered in the ordinary manner; and as I understand that clause was struck out by Her Majesty's Government in the House of Commons, on the ground that it was contrary to an engagement which had been given that no money demand to be enforced under this Act should be personally recoverable, I cannot help expressing my great surprise, as well as regret, that so improvident an engagement should have been given on the part of Her Majesty's Government. The very words "vexatiously and oppressively" speak for themselves, and that the thing aimed at might happen is certain, because the power of the purse is great, and when certain motives concur with the power of the purse there can be no doubt that unnecessary costs, which would be both "vexatious" and "oppressive," may be incurred; and why upon any intelligible principle those costs should not be dealt with in the ordinary manner I cannot understand. I do not mean to ask your Lordships to dissent from what the House of Commons have done in that respect, because it was done in consequence of what I cannot help thinking was an unfortunate and improvident engagement on the part of Her Majesty's Government; but having thought it my duty to make that proposal in this House, I think it also my duty to accompany with a protest my acquiescence in what has been done. Then, the next point which I think it necessary to observe upon is this, upon 1643 which I will state what, for my own part, I propose to do. Your Lordships passed by amendment a clause which was not introduced originally in the House of Commons, to the effect that upon any application to the County Court for an order under this Act, the costs either of a solicitor or of a witness should not be allowed in any case where the amount claimed was paid without further proceedings; and, when notice of opposition had been given within the prescribed time, the costs of a solicitor should only be allowed for work done subsequent to the notice. That, I think, is reasonable and just, but the House of Commons has amended this clause by providing that on any application to a County Court for an order under this Act, no costs, either of a solicitor or of a witness, shall be allowed not only in any case where the amount claimed is paid without further proceedings, but also where notice of intention to apply for time to pay the tithe owner's claim has been given, except in cases where costs would be allowed by the Court on a judgment summons, which, I daresay, is right. At all events, I presume it would not extend to cases where application had been made, but payment had not, and further proceeding shad followed. But the words have also been put in—" Nor in any case where no notice of opposition has been given." I cannot help thinking that in putting in those words the difference has been entirely lost sight of between the operation of this Bill, and ordinary proceedings in the County Court. In an ordinary case in the County Court, if no notice of opposition has been given, judgment is passed and signed at once for the payment of the amount claimed, which is forthwith executed by the bailiffs of the Court, and there is an end of the whole thing. But, under this Bill, there will not be an end of the whole thing, and if the owner is not known, or, although known and served, does not choose to appear, that is only the beginning of further proceedings which must be taken to work out the special remedy provided under this Act by the appointment of a receiver; and then, when the receiver is appointed, various further questions may arise if difficulties are thrown in his way. Is it intended that in proceedings of that kind the tithe owner is not to be advised by a solicitor; and is 1644 he not to recover those costs although he is entirely in the right, and has only-taken his ordinary legal remedy for the purpose of recovering that money which the landowner might pay but does not pay, and does not come forward to defend himself? Is it intended to say that in such cases there should be an absolute rule against allowing costs which there would be no alternative but to incur; and that (as would be the effect of these words) to the very end of the proceedings, however protracted they might be, and however much the remedy might be obstructed? It appears to me not only absurd, but so absolutely unjust, that I feel compelled to ask your Lordships to disagree with that part of the Amendment of the House of Commons. As to the third point, I confess I think it is to be regretted that the House of Commons should have insisted upon retaining the definition of "owner" by reference to the Tithe Act of 1836, without any alteration or amendment whatever. My own opinion is that at least some direction, as to the cases of joint-ownership under the Act of 1836, was desirable; and that, without some such direction, there might be some difficulty in applying that portion of the interpretation under possible circumstances. I think, however, that the difficulty is not one which will be found practically serious; and, such as it is, it may be met by proper Rules. I do" not, therefore, propose to ask your Lordships to disagree with the Commons on that point, though I cannot but think that it would have been better if the matter had been left as it was.

§ THE MARQUESS OF SALISBURY
My Lords, undoubtedly the Government in the House of Commons felt itself bound by the pledge which the noble and learned Lord has referred to. He-may, perhaps, remember that I was myself in sufficient doubt as to the working of that pledge to tell him at the time that I was not certain that the clause would be adhered to. When he says he regrets that the pledge should have been given, I entirely concur with him in the regret that it should have been found necessary; but as he is no doubt aware 1645 there was a great deal of cross-voting upon this Bill, and it was not a Bill on which the Government could be absolutely certain that they could count with confidence upon the support of a majority in the House upon all occasions. It was necessary therefore—I presume they felt it necessary—to meet strong feelings where those feelings were expressed, and there was undoubtedly a very strong feeling against the enactment for the first time of any personal responsibility in whatever form it might be carried out. I regret very much that that should be found necessary, and I concur with the noble and learned Lord in thinking that the Act would have been much better if it had remained as it left your Lordships' House. But I do not think that the clause would, in that event, have been very widely required, because wherever there is sufficient rent to pay the tithe there will be probably enough to pay costs too, and they can always be levied for. It is only where there is no rent to pay costs that the possible occasion would arise which the noble Earl's Amendment was intended to meet. I do not think that will be an ordinary case, and therefore we may hope that no practical evil will result from a change in the Bill, which I quite admit is a change for the worse. With regard to the other matter I have no knowledge with respect to the cause why those words which the noble Earl referred to in the second place were inserted. I think it must have been without a due consideration of all the results to which they may lead, and I certainly shall not oppose the Motion of the noble Earl to ask for a reconsideration of that question. With respect to the main matter that we have to deal with, namely, the clause which gives power to issue a writ of habere facias possessionem, it certainly was the opinion of distinguished lawyers in the other House, that as the clause left us it would not have worked, and that the two processes—the procedure under the old Act and that instituted under the new—had not bean efficiently screwed together; and it is now proposed to revert to the process under the old Act, which we know by some 50 years' experience will at all events lead to results of some kind.

§ THE LORD CHANCELLOR
said: My Lords, I cannot forbear to enter my protest against this Amendment. It is a mere matter of definition and drafting, and I must say that, after the very careful consideration given to that point by my noble Friend Lord Thring, with all his experience, I very much regret that that definition has been omitted. I cannot help thinking that great difficulty will be experienced in the working of the Act without that definition.

§ *THE EARL OF SELBORNE
said: I wonder whether there is any other reason? I confess it appears to me that it would have been much more accurate to retain the words "Tithe Rent-Charge Act" than "Tithe Act," though I do not think it is a point on which it is worth while to differ from the House of Commons, since that is their opinion. It seems to me that the only conceivable reason for adopting the form "Tithe Act of 1891," instead of "Tithe Rent-Charge Act of 1891," is to gratify those people who like to confound tithe rent-charge for some purpose or other with "Tithe."

§ THE MARQUESS OF SALISBURY
I ventured to warn the noble Earl, when he put this in, that he was aiming at too high a standard of literary excellence.