§ [SECOND READING.]
§ Order of the Day for the Second Reading read.
§ * THE LORD PRIVY SEAL (Viscount CROSS)
Your Lordships, no doubt, are aware that the provisions of the Agricultural Holdings Act have been very much discussed up and down the country by chambers of agriculture and other bodies, and that a Commission was appointed to inquire into the working of the Agricultural Holdings Act. That Commission reported in, I think, 1898. In consequence of the Report of that Commission this Bill is now brought forward. I may say at once that the great object of the Bill is to simplify procedure and to relieve friction between landlord and tenant as far as that can be done. The foundation of all compensation—the measure of compensation—must eventually be no doubt the value to the incoming tenant of the improvement done by the outgoing tenant. Whatever the value to the incoming tenant may be, that is the measure of the compensation which ought to be given. Probably, my simplest course will be to go very shortly through the different clauses of the Bill—there are very few of them—and explain their provisions, as I hope I shall be able to do at no very great length. The first clause of the Bill re-enacts the old clause of the Act of 1883, but with this distinction. In the first sub-section it re-enacts the old clause of the Act of 1883, but it leaves out a particular proviso —Provided always that in estimating the value of any improvement in the first schedule hereto, there shall not be taken into account as part of the improvement made by the tenant what is justly due to the inherent capabilities of the soil."990 Those words have been left out, and I should not have wasted the time of your Lordships at the present moment in discussing the matter at any length, because it is more a matter for Committee than for this stage; but I see that a noble Earl on the other side of the House (Lord Grey) has given notice to re-insert those words. I would only, in passing, call the attention of the House to the Report of the Commission on that particular point. They say—The Central Chamber of Agriculture recommend that those words should be struck out. Mr. Lipscombe, the chairman of the Committee, who drew the Report, said that they had received a great number of suggestions from affiliated Chambers in different parts of the kingdom, and that a great proportion of these Chambers recommended the abolition of the proviso. Giving his own opinion, he said:—'I believe, practically, that it has not at all safe-guarded the interests of the landowner or of the incoming tenant, but that it has afforded an opportunity of cavilling at the Act unfairly…. I believe it has been inoperative, but it is constantly asserted by persons who, perhaps, know more theoretically than practically that it has operated against the outgoing tenant.'I should not have referred to that at the present moment if it had not been for the notice of Amendment which has been already given by the noble Earl opposite. That is a matter which will be discussed, of course, when we get into Committee. The second sub - section of the first clause simply refers to the schedules, about which I shall have to say a word or two by - and - by. The third and fourth sub-sections have one very important bearing upon this matter. The first sub-section relates to the compensation payable to the tenant under the principal Act, and says that—There shall be taken into account any benefit which the landlord has given or allowed to the tenant in consideration of the tenant executing the improvement.The 4th Sub-section relates to the question of manures. But the important alteration of the law which is made by this section is this. The foundation of the whole matter is that a claim must be made by the tenant. If the tenant does not make the claim the landlord is left to his own remedy for any breach of covenant that the tenant may have committed; but under the present law if the tenant makes a claim and the landlord makes a counter-claim for damages as against the tenant he may set off any money that he gets in consequence of his claim, 991 but he cannot go beyond the original claim of the tenant. Therefore it may be that if the tenant claims so much, and the landlord claims a much larger sum for what has been done against the improvement, although the landlord can set it off against the tenant's claim he cannot go beyond the tenant's claim. The Bill that I present to your Lordships alters that, and says that when it comes to arbitration, if the tenant claims and the landlord counter - claims and the counter-claim exceeds the tenant's claim, the landlord may under this Bill get what he ought to have in the counter-claim, and not simply be confined to a reduction of the claim that is made by the tenant. The 5th Sub-section of Clause 1 is to remedy a very curious state of things which exists under Clause 57 of the present Act. Under that clause the tenant was to come under the Act, and if he came under the Act then he was not to have any other remedy than the Act provided. That was supposed so to work that the Act should always be put into force; but under the existing law the tenant had to give notice of the claim, and therefore if the tenant neglected to give notice, or purposely did not give notice, he kept his right to any other remedy besides that under the Act. Therefore that section of the old Act of 1883 became practically of no avail whatever, and in this particular clause we have said that it leaves the tenant his remedy if he chooses to take it, leaving the law as it stands in practice although not in theory. Then we come to the second clause, which is a matter of, I think, very great importance. The second clause relates to arbitration. The great object of this Bill is to simplify the procedure with regard to arbitration. The Arbitration Act of 1889 may be said to be very simple, but that can hardly be applied to this particular Bill without great modifications, and it must be remembered that the Act of 1889 does not apply to Scotland at all, and therefore it is thought better, as those modifications are very difficult to introduce simply as modifications, to re-enact those parts of the Act of 1889 which are applicable, and to modify such parts as are not applicable and to place all the new procedure in the schedule to this Act so that, as this Act has probably to be worked not by lawyers but by laymen, they should have the whole procedure before them. That has seemed to us a 992 very much simpler and better way of drafting the Bill than by reference or modification. Now, of course, the foundation of everything is the tenant's claim. Under the existing law the tenant had to give notice of his claim. That formal notice is by this Bill done away with, and the only limitation that is put on the tenant's right to claim is this—that it must be made before the determination of the tenancy; it cannot be made afterwards. With regard to such a claim when it comes before the court, the provisions of the Bill are certainly, I think, very advantageous both to the landlords and to the tenants. The Bill says—(3.) Where any such claim by a tenant for compensation is referred to arbitration, and any sum is claimed to be due to the tenant from the landlord in respect of any breach of contract or otherwise in respect of the holding, or to the landlord from the tenant in respect of any waste wrongfully committed or permitted by the tenant, or in respect of breach of contract or otherwise in respect of the holding, the party claiming such sum may, if he thinks fit, by written notice (not later than seven days from the commencement of the arbitration) to the other party require that the arbitration shall extend to the determination of the claim, and thereupon the provisions of this section, with respect to arbitration shall apply accordingly, and any sum awarded to be paid by a landlord or tenant shall be recoverable in manner provided by the principal Act for the recovery of compensation.So that to prevent any dispute between the landlord and the tenant it may all be settled in one arbitration with a great saving of expense and trouble and annoyance. That, in my opinion, is a very wise provision in the Bill. It is also provided that unless the parties agree to anything else it shall be decided by a single arbitrator. The 3rd Clause relates to the land charges. They are at the present moment made by the county court in the. cases where land charges apply. That is found very inconvenient for many reasons, and very expensive. In the first place, the county court is not always sitting. It may be some time before you can get the land charges fixed, and therefore it has been decided that the question of the land charges shall be left, not to the county court as at present, but to the Board of Agriculture, who will do the business very much more cheaply and expeditiously than it has been done under the county court. By the 4th Section the provisions of Section 34 of the principal Act are to apply to any 993 fixture not simply put up by the tenant according to the existing law, but if he has acquired or bought it. Then comes a new provision which alters the law, and I should say alters the law in a very popular way. The landlord, except by agreement under the present law, has no power to enter on the holding in order to see that the lease, or whatever it may be, is properly carried out, but by Clause 5—The landlord of a holding, or any person authorised by him, may at all reasonable times enter on the holding or any part of it for the purpose of viewing the state of the holdingThat seems to me to be really common sense, and a thing I should think there could be no possible objection to. Then there is a new provision in the next clause about penal rents and liquidated damages. This clause puts an end to penal rents and liquidated damages, except in certain peculiar cases. It is—Provided that this section shall not apply to any covenant or condition against breaking up permanent pasture, grubbing underwoods, or felling, cutting, lopping, or injuring trees, or regulating the burning of heather.Those are matters which so very seriously injure the holding that they are purposely excepted from this particular clause. I think I have now gone through most of the provisions of this Bill with which it is necessary to trouble your Lordships at the present time, with one exception, and that is the schedules. I said that I would refer to the schedules later on, and I will do so very shortly. I do not think it is necessary for me at any length at the present moment to go very narrowly into the question of these schedules, but there are two points which are certainly of interest. In the first schedule, which relates to those matters in which you must get the consent of a landlord, a new provision is put in. It is not simply the erection or the enlargement of buildings, but the erection, alteration, or enlargement of buildings, and the word "alteration" has been inserted perfectly rightly, to my mind, and I think it will be a great advantage in working out, but no doubt it is one part of the schedule to which attention will be called by some of your Lordships when we get into Committee. As your Lordships are aware, at the present moment the making or planting of osier beds, the making of gardens, or the planting of orchards or 994 fruit bushes, all require the consent of the landlord, but as the Bill now stands, provided that the gardens, or osier beds, or orchards, or fruit bushes do not exceed one acre, then the matter is transferred to the second schedule, in which the consent of the landlord is not wanted, but in which case notice must be given to him, the effect of notice being that when the landlord receives notice, if he chooses, he may do the improvement himself and charge the tenant with a certain rate of interest on the money which is expended. But added to the first schedule, in which not only notice must be given to the landlord, but his consent must also be obtained, the old Act included the making of permanent fences, but the words now introduced are "making or removal of permanent fences," which of course is a great protection to the landlord and one that I think ought to be carried into effect. Those, my Lords, are the provisions of this Bill. I shall be very happy at a future stage to make any further explanation which your Lordships may desire, but I have thought it best to state the provisions as shortly as I can. I hope your Lordships will give the Bill a Second Reading.
§ Moved, "That the Bill be now read a second time."—(The Lord Privy Seal.)
§ LORD BURGHCLERE
I hope I may congratulate the noble Viscount on the very lucid manner in which he has explained the provisions of this Bill. It will not be necessary for me, fortunately, to detain your Lordships for more than a very brief time in any remarks which I may venture to make on the measure which the noble Viscount has just introduced. A supporter of Her Majesty's Government in another place, and one who I know from considerable experience is a very competent judge of agricultural matters, has stated that this Bill is merely a "small amending measure." It principally concerns itself, as the Lord Privy Seal has pointed out, with the simplification and cheapening of the existing methods by which arbitration between landlord and tenant is brought about. Now, my Lords, I am sure that all of us at the present moment are agreed that it is highly desirable and highly advantageous, both for the landlord and the tenant, and for the agricultural interests in the country generally, that the culti- 995 vator of a holding should have full and fair compensation for any improvements which he may make during his tenancy, and therefore it is obvious that it is very desirable and very advantageous that any settlement of difficulties by arbitration which may arise between landlord and tenant should be as expeditious and as cheap as is consistent with fair play to both parties in the case. As I have said, and as has been pointed out by the noble Viscount, the sole object—the main object, at any rate—of this Bill is to simplify and cheapen the procedure by which the arbitration is brought about between landlord and tenant, and in so far as this measure properly fulfils that very laudable purpose I am sure there will be no feeling in any part of the House except one of welcome to the measure which has just been introduced. But, my Lords, so complicated and technical is the law relating to landlord and tenant in this country, and so very complex is the legislation which deals with those relations in this country, that it is almost impossible to deal with even the fringe of this subject without arousing susceptibilities and inspiring perhaps fears in some quarter or another. This Bill, in my humble opinion, does not depart from that rule, but as those difficulties mainly refer to matters of detail and not to matters of principle, I think that they are more germane to the Committee stage of the Bill than to its Second Reading. There are, however, one or two points of general interest which I should like to be allowed to refer to very briefly. In the first place, as the noble Viscount has pointed out, for the first time in the history of agricultural holdings that oft debated phrase, "the inherent capabilities of the soil," disappears from the Statute book. I hear from the noble Viscount that there are noble Lords in this House who regret the elimination of that phrase, and who wish to see it re-introduced into the legislation of the country. It may be so. I would venture to refer them to the definition which is given of that particular phrase in a text-book which is very often accepted as a proper explanation of the measure, and I do so with greater confidence because I noticed the other day that in another place a very high legal authority, no less a personage than the present Attorney General, when it was suggested to him that the wording of this particular Bill 996 compared with the legislation of the country generally was rather difficult to interpret, pointed out that he himself found great difficulty in understanding the statutes, and that when he did so he invariably referred to a text-book on the subject, and he confidently recommended such a course to those who asked him. questions on the subject. Now, I find in a text-book that is very generally accepted this passage—The words, 'the inherent capabilities of the soil' may mean anything or they may mean nothing.
§ LORD BURGHCLERE
It is the "Law of Agricultural Holdings," by Sylvain Mayer; it is a well-known book, in general use. If that be a true definition, and if the source to which we were recommended to address ourselves for information by the Attorney General is a competent source, I can hardly think that there would be any noble Lord who would wish to retain on the Statute-book a phrase of such comprehensive uncertainty as the one to which I refer. My Lords, there is an observation I should like to make about one feature of the Bill which was not alluded to by the noble Lord who introduced it. This Bill is in the main a permissive Bill, and the principle of contracting out is maintained in the Bill throughout. Of course I know that there are in many portions of this country highly desirable and advantageous customs which are called the customs of the country, and by making this Bill a purely permissive Bill those customs are maintained in their entirety, and so far I should think it would have the approbation of many noble Lords who understand the subject. But on the other hand I am bound, in justice to the advocates of the Bill, as well as to those who oppose it, to point out to the Government that if the principle of arbitration and the alterations in the principle of arbitration which have been made in this Bill are advantageous and for the good of the country generally, it is a curious thing that they should not be made universal and even compulsory when questions of this nature arise between landlord and tenant. I think it might be alleged by some critics of the 997 Bill that this would be advantageous possibly to the poorer and smaller tenants as compared with the larger ones, because it is quite obvious that a rich and well-to-do man is much more able to make good terms for himself than one who is poorer and in a different position. However, the Government have not seen their way to make it other than permissive, and therefore the Act will no doubt go on the Statute-book as a permissive Act and a permissive Act alone. The next remark I shall venture to make on the Bill is in regard to the complications, and I am afraid I must call it the bad drafting which has arisen from the abrupt and I would almost say the not very well-considered attempt to combine Scotch and English legislation in the same Bill. As your Lordships are aware, hitherto without exception there have been separate Acts relating to these matters for England and for Scotland. I venture to think that that course has been adopted not without some sufficient reason; because, if you consider it, the methods of cultivation, the relations of landlords and tenants in many parts of the country, and even the very legal expressions by which those relations are defined in the Statute-book, are often completely different in the two countries, and I therefore think it would have been better, on the whole, perhaps, to have conformed to what has been the universal precedent, and to have brought forward a separate measure for Scotland, in order to amend the separate Scotch Acts, rather than what has been done in this instance by, I venture to think, the somewhat hasty attempt to combine the two Acts, laying the seeds, it may be, of some considerable confusion when the working out of the Act takes place. I would venture to illustrate what I mean by one instance. As the noble Lord pointed out just now, in Part III. of the schedule to the Bill, which contains those improvements which may be made without any consent of the landlord whatever, we find a new one—No. 28, "laying down temporary pasture." Now, I am told—I speak with all submission, and I shall probably be corrected if I am wrong—that in some portions of Scotland, perhaps in Aberdeenshire, temporary pasture is merely one in the ordinary rotation in the crops of that country; whereas, in the South of England, temporary pasture 998 may be well maintained to be an improvement on the holding. Therefore it will come about by this Bill that what is in Scotland merely the ordinary course of good husbandry is in another part of the country made into a tenant's improvement, for which he might claim compensation from the landlord. If that proposition be true, I think I have shown one, at least, of the disadvantages of departing from precedent, and endeavouring to combine the Scotch and English Bills into the same measure. My Lords, that reflection naturally leads me to another criticism which I shall venture to make —namely, with regard to the general drafting of the Bill. I think it will be generally admitted that it is better that every measure should as far as possible be couched in plain and understandable language that may be more or less understood by the ordinary layman, and that is, perhaps, more essential in these highly technical measures which refer to the relations of landlord and tenant, and I think it would be desirable that the Bill should be made as far as possible able to be understood by the agricultural interest itself. The measure should be set forth as far as possible in clear and reasonable terms. Now, I ask whether that is the case in this "small amending Bill," which has just been brought in? I will venture to read one of the clauses in the Bill, and I shall be glad if any ordinary mortal can put any understanding to it at all. Let me read to your Lordships Clause 10—(1) References to the principal Act and to Sections 29, 30, 32, and 34 thereof shall be construed as references to the Agricultural Holdings (Scotland) Act, 1883, and to Sections 24, 26, 25, and 30 thereof respectively. References to Sections 31 and 39 of the principal Act shall not apply.(2) A reference to the Arbitration Act, 1889, shall be construed as a reference to the Arbitration (Scotland) Act, 1894, and a reference to the Marker. Gardeners' Compensation Act, 1895, shall be construed as a reference to the Market Gardeners' Compensation (Scotland) Act, 1897.Now, I ask noble Lords generally whether that is a clause which is understandable by the ordinary intellect, and whether it would not require a very considerable knowledge of the statutes of the country, to say nothing of some rather distinguished legal knowledge, to be able to make out what on earth is meant by the clause which is put before us? My Lords, I know I shall be told that this is merely 999 the ordinary sin of legislation by reference, and it has often been pointed out, and I think truly pointed out, that legislation by reference has its advantages in that it is possible in a highly complicated measure to avoid undue discussion on the subject and undue Amendments which may be drafted at a moment's notice without any serious study of the Bill. That may be so, and this method may have its advantages, but I cannot help thinking that, notwithstanding that, this is a course which is doing evil that good may come. But I have a very humble suggestion to make on the subject to Her Majesty's Government. We were told by the Minister for Agriculture in another place that it is intended to consolidate these Acts in another session. The objections which I have pointed out and the advantages which are gained by legislation by reference do not so much apply to a consolidating Bill, because we all know that in a consolidating Bill no new principle is allowed to come in, and therefore there cannot be the same discussion. Now I would suggest to the Government whether it would not be possible, when this consolidating Bill is brought in, not to legislate by reference, but to embody in the principle of the consolidating measure those clauses which would make it understandable by the common intellect. If that were carried out I think it would be doing something which would be of advantage, especially to the agricultural interest. There is only one general observation which occurs to me, and it shall be a very brief one, with regard to the agricultural legislation of the present Government. The remedial legislation of the present Government consists, I think, mainly of two Bills. One is the Agricultural Rating Act, and the other is the measure which we are considering to-day. That, as I understand it, is the sum total of the remedial legislation which Her Majesty's Government have found themselves able to bring in during their lease of power. My Lords, that is a very remarkable fact, well worth the consideration of the agricultural interest. I say this, I assure noble Lords opposite, in no polemical spirit. No one is more confident than I am that the Government are most anxious to bring in, and those who support the Government in both Houses of Parliament would be most anxious to support 1000 them in bringing in, any measures which could in any way assist or alleviate agricultural depression or agricultural distress. But it is a remarkable fact, as I have ventured to point out, that after five years of considerable power and a great majority, the most that they are capable of producing —I give noble Lords opposite credit for the intention sincerely to carry out their promises—-but the only thing that they have been able to do is to pass the Rating Act and this "small amending measure." I am sure that no one can be more surprised than are Her Majesty's Government at such a result of their labours, because that was obviously not their intention when they sought and when they accepted office. I very well remember in another place during the three years that the late Government was in power, year after year, session after session, Queen's Speech after Queen's Speech, we were reproached and we were twitted on every side because we neglected the agricultural interest and failed to help it by bringing in remedial legislation. We were told that legislation of this nature was instantly and immediately desired. We were told that during 1892 and 1895. We were told that by very eminent members of the present Government during the General Election of 1895, and even the Commission of Inquiry which we ourselves proposed at that time in order to see whether it was possible to carry out any legislative action in the matter—even that was criticised and condemned, because it was said so instant was the need for remedial legislation that even that Commission was dilatory and unnecessary. I may point out, because I have some interest in that Commission, that notwithstanding that, the Commission has been of the highest possible utility to the present Government, because it is by the Reports of that Commission and by the influence of that Commission that the only two Acts of an agricultural nature which have been brought forward have been suggested and have been adopted by the Government at the present day. But, however, whether that be so or not, and I really do not want to enter into any polemical discussion on the subject—I merely refer to it as a general remark—I say it is most remarkable that after five years, after all the consideration which I have no doubt has been given to it, the only remedial legislation which it has been possible to carry through by the present powerful 1001 Government is a Eating Act about which great differences of opinion exist in many parts of the country, and this measure, which has been termed by one of the Government's own supporters a "small amending Bill." Finally, my Lords, I must add that I am afraid there will be considerable disappointment in some quarters that this long-expected Bill goes no farther than it does. I do not myself hold any very wildly advanced ideas on questions of land tenure, but I cannot help thinking that even the most moderate-minded agriculturist had been led to expect a somewhat larger measure of reform than that which is offered to us in the measure which has been introduced by the noble Viscount to-night. I know many agriculturists who have often told me that they did not expect at any time any possible benefit to them by any possible alteration of the Agricultural Holdings Act at all, but even these gentlemen I think—after a measure has been talked about, promised in Queen's Speech after Queen's Speech, talked about on the platform, written about in the press—even such moderate-minded gentlemen must have had their hopes raised and expectations aroused, and I consequently fear that there may be some disappointment when the measure that has been introduced to-night comes to be thoroughly understood. However, my Lords, although this measure in many ways does not do what many agriculturists I dare say expected it was going to do, yet, as I have pointed out, it does contain some provisions which undoubtedly will be of benefit to the agricultural classes at large, especially in the matter of establishing arbitration between landlord and tenant. That in itself is a very laudable object, and for my part I venture to welcome the measure that the noble Viscount has introduced.
THE EARL OF CAMPERDOWN
My Lords, I am sure that so far as the principle upon which this Bill is founded there will be no difference of opinion in the House. I am sure that everyone wishes to be perfectly just in any legislation which concerns the relations between landlord and tenant. On the other hand, my noble friend who has just sat down alluded in rather dark terms to certain possible benefits which certain people are expecting or were expecting to derive from any agricultural legislation. 1002 What those benefits may have been he did not go on to tell us, but according to the line of argument with which he ended his speech, in which there was a reference to the benefits granted by the late Government as compared with those granted by the present Government—
§ LORD BURGHCLERE
I beg my noble friend's pardon. I made no reference to any benefits conferred by the late Government.
THE EARL OF CAMPERDOWN
I thought the noble Lord said that there were certain proposals made during the tenure of office of the late Government.
THE EARL OF CAMPERDOWN
Then I beg my noble friend's pardon. At any rate, he threw out certain innuendoes that the present Government had not clone what might have been expected from them on behalf of the agricultural classes. Well, my Lords, I do not propose to enter into that part of the argument; I do not think it is necessary. What we are dealing with to-night is the Second Reading of this Bill, and it is to the principle of the Bill and to the contents of the Bill that I propose to address the few sentences which I have to say to your Lordships. As I said before, with the principle that it is desirable to be perfectly just in any legislation between landlord and tenant, I am sure we are all agreed. When I say the Bill is founded on that principle, it is quite true, as the noble Viscount who introduced it said, that in reality it is a Bill made up of a multiplicity of details rather than a Bill that states a principle which is supposed to have been admitted. Therefore, in considering the Bill, I propose very shortly to follow the example of the noble Viscount, and to go through one or two clauses, more with a view of obtaining information than anything else, which no doubt at a later stage of the Bill will be discussed in considerable detail. On the first clause, which defines the value of an improvement and says it is "such sum as fairly represents the value of the improvement to an incoming tenant," the noble Viscount pointed out to us quite properly that an alteration has been made in this Bill as compared with the existing law, and that that alteration 1003 consists in omitting the words which refer to the inherent capabilities of the soil. Those words "the inherent capabilities of the soil," it may be as well to remind your Lordships, were the subject of an Amendment which was very fully discussed in the House of Commons in 1883. The value of that Amendment was not admitted by the proposers only, but it was assented to and agreed to by noble Lords on both sides of the House, including the late Lord Herschell, who said that he considered it was necessary and desirable, and in the end it was inserted in the Act with the full concurrence and consent of all parties concerned. This Bill proposes to omit these words. Now with regard to the exact value of the words themselves I do not propose to say much. The noble Lord quoted to us just now a text-book, which he says is a very good one, in which it is stated that those words have no value at all. It has been stated elsewhere that as a matter of fact valuators never took them into account when making an award under the Act, and that has been given as a reason, and the only reason that I have seen forcibly put forward, why it was desirable and possible without doing any injury to omit those words from this Bill. But one must remember that this section is going to be interpreted not by the writer of any text-book, not even by the judges; it is going to be interpreted, in the absence of agreement, by arbitrators appointed by the Board of Agriculture. What I should like to know is this. I do not myself attach any very great importance to the words. If it were now proposed for the first time to put them in I do not know what I might have said or thought about them; but what I want to know now is, what is the effect of omitting those words in this Act which were expressly put in and were supposed and believed to have some considerable value? Supposing that judges were going to interpret this Act, for instance, which they are not, would they or would they not attach any importance to the distinct omission of a proviso of this kind? That is really the whole point. These words may have value or they may not have, but they are to be decided upon by the arbitrators. Now who are the arbitrators likely to be? They are likely to be men, I should suppose, probably of some practical acquaintance with land for this purpose—men who are not as a rule 1004 very skilful judges of legal phraseology. I should certainly like to hear from some legal authority what they would say in a similar case; but is it not likely that an arbitrator would say, "These words which were very much insisted upon and very much objected to by people outside the House have been struck out by Parliament. It cannot be supposed when Parliament was striking the words out that Parliament meant to do nothing at all; it struck them out on purpose, and it is quite clear that Parliament intended to transfer to the tenant something which was refused to him by the law as it stood up to that time. "My Lords, I have nothing at this point to say upon that matter further than that I should like to know what, in the opinion of the noble Viscount, and, what is of still greater importance, the opinion of the noble Lord on the Woolsack, is the effect which naturally may be expected to flow from the omission of these words under the conditions which I have named. There are no other matters in the first clause which I think it is necessary to refer to, except that in Sub-section 5 it is said—Nothing in this section shall prejudice the right of a tenant to claim any compensation to which he may be entitled under custom, agreement, or otherwise.My Lords, I rather gathered from the noble Lord who spoke last that he himself thought it might have been advisable to make a Bill of this sort compulsory. Fortunately for the good management and easy management of land in this country, I believe that the bulk of the business will be done, as it has been done by custom and by private agreement, which is so well understood and which is different in different parts of the country, and not by laws which have been framed by the House of Commons and by this House. Your Lordships know, just as I do, that it is impossible to put into words many of the relations and transactions and duties which are incumbent upon a landlord in dealing with a tenant, and vice versa. There is so much depends on individuals, so much depends on the country, so much depends on the soil, so much depends on the practice, that custom and agreement must always be superior to the law, and I hope that Parliament will never be so unwise—it never has been hitherto, and I hope it never will be—as to attempt to determine the relations between landlord and tenant. 1005 In the second sub-section it is stated that—Any claim by a tenant for compensation under the principal Act or this Act in respect of any improvement comprised in the first schedule to this Act shall not be made after the determination of the tenancy.As your Lordships know, at the present time the date in Scotland is four months before the expiration of the tenancy. In England I believe it is two months. I may say that I think this change is a good change. As the Bill originally stood it proposed to give a tenant some time after the expiration of the tenancy—an arrangement which would have produced, no doubt, very great confusion; but as the Bill stands it seems to me that you have done what is very fair and right in allowing the tenant to make his claim at any time before he leaves. The proposal in regard to there being a single arbitrator I imagine will obtain general approval. We all wish to do anything which will cheapen the procedure, and although, of course, we shall run the risk of the proceedings being before an arbitrator who is not a skilled lawyer, and who would labour, therefore, under certain disadvantages in interpreting contracts—although we may labour under certain disadvantages, yet on the whole, and taking the probable outcome from the clause, I think the single arbitrator is preferable, and the doing away with the court of appeal is, on the whole, an advisable course for the Government to have taken. My Lords, I do not think I need trouble your Lordships with anything further until we come to Clause 6, but to that clause I should like to call your Lordships' attention. It says—Notwithstanding any provision in a contract of tenancy for the payment by the tenant of an increased rent or other liquidated damages for a breach of a covenant or condition, a landlord shall not be entitled to recover, by distress or otherwise, any sum in respect of a breach of any such covenant or condition in excess of the damage actually suffered by him.And it goes on with the proviso—That this section shall not apply to any covenant or condition against breaking up permanent pasture, grubbing underwoods, or felling, cutting, lopping or injuring trees.It seems to me that that proviso proclaims the futility of the clause. Unless there be something contrary to public policy, is it not desirable that a landlord and tenant should be left to make any arrangements between themselves they 1006 may choose? Personally I have no love for penal clauses, but I do not see any reason—and surely some reason should be given—why even a landlord or a tenant may not propose and may not make and may not enforce any covenant which they choose. If it could be shown that it was contrary to public policy, and that public or general damage would ensue from that course, then I could understand Parliament forbidding what have been called penal rents; but, on the other hand, you will see in the clause as it stands you limit the damage which the landlord can recover to the damage which he actually sustains. If the clause stood by itself pure and simple every one of your Lordships knows that there are damages which you could not compensate in money. The Government originally proposed to compensate in money for breaking up permanent pasture. It would be perfectly impossible to assess that damage in money. No one can say what it is. It is entirely different in different places. As the noble Lord who spoke just now said, in some parts of Scotland nothing is easier or commoner than to sow down land to seeds and clover, and you get your clover, and the land will stand for several years in grass, and very good grass it is. If you try to do that in some of the strong land in the south of England no pasture comes at all after the first year or so. If the Government had not inserted this proviso and made it apply to permanent pasture, one would have been able to give them an instance in which the clause would have been absolutely injurious and absolutely unfair; and, so far as I can see, when you apply it to permanent pasture or any similar case, nothing can be fairer than that the landlord who wishes not to obtain payment for the damage done, but to prevent any possibility of the damage being done, should be able to say that if a person took a particular course he should be liable to pay a sum which would be sufficient in amount to prevent any likelihood of the act which it is wished to prevent being done. As I say, personally, looking at it as a purely practical matter, one can find no very great objection to it, but in dealing with it as a principle of law surely nothing can be more undesirable than that Parliament should interfere with the right of contract between landlord and tenant, unless there is some posi- 1007 tive public reason for so doing. The noble Lord who spoke last made some strictures—and, I thought, very deserved strictures—on the extraordinary phraseology of Clause 10. I do not think I can agree with him altogether in blaming the Government for making the Act applicable both to Scotland and to England. It is desirable to do so if you can do it, and on the whole, having some little knowledge of one part of the country, a part in which there is a good deal of high farming, I have been looking into the clauses, and I may say that I have not been able to see any particular objection to them. I quite admit this—I do not understand them; and I do not think that any other person in this House, or any other Scotchman, possibly could understand them, because they consist simply of references, and I do not think anyone has either the time or the intelligence, and I think probably he is not intended to have either the time or the intelligence, to make himself fully acquainted with their contents; but that is the system which draughtsmen have adopted—some of us think, very deliberately adopted. It has been said before now that this new mode of drafting has been adopted for the purpose of getting Bills through another place, and possibly through this House. I have known recently of cases in which noble Lords have been very much surprised to see things which have happened, and they have been very angry on ascertaining what a particular Bill really meant. Now, my Lords, I come to the schedules. In Part II. of the schedules there are, as the noble Viscount pointed out, some improvements in respect of which notice to the landlord is now to be sufficient where his consent was formerly required. Those matters are the making of gardens, the planting of orchards or fruit bushes, and the making and planting of osier beds. Except in certain rare cases—I believe they are very rare—I do not think it very much matters, because it will not be found very often that the tenants will make gardens or plant orchards or osier beds. They will usually choose to go to their landlords for fruit bushes if they want them, and so far as the making and planting of osier beds is concerned, I dare say they may do that in some places, but those places must be very few. What I want to call attention to is the principle which is involved in 1008 this second part of the schedule as amended. The ordinary principle on which a holding is held in England and Scotland has been hitherto, as I understand it, this: that the landlord, executing all or very nearly all the permanent improvements, making the fences, the buildings, and all things of that kind, and having, in fact, the full control of the holding, has hitherto had a right to say for what purpose his holding shall be used, and he has had a right to object if that holding was going to be applied to some purpose other than the purpose for which he let it. Now, what does the clause do? It says that, beyond one acre, no man may make a garden or do any of these other things without the consent of his landlord; but when you get below an acre then anyone may make a garden, plant an orchard, or make an osier bed, and he is to be entitled to be compensated for that. If it is a market garden, he is to come under the provisions of Part III., which refers to market gardens. Well, suppose he has made one garden, and suppose he leaves the holding — the tenant, generally speaking, holds on a yearly tenancy — then the next man comes; is he to be entitled to the same thing over again? How many times may it be done? Is there anything in the Bill to restrict the number of times it may be done? It seems to me that this involves a principle which is very much larger than the mere words or the mere effect which the clause is likely to have. I have no doubt that that will be a matter which will be discussed hereafter. I must apologise to your Lordships for having detained you so long. I do not think it is necessary for me to trouble your Lordships any further.
§ LORD DE RAMSEY
My Lords, there are two matters upon which I wish to address the House, very shortly indeed, and they have arisen out of the two speeches that we have just heard. The noble Lord on the front Opposition bench made a statement which certainly was not very germane to the Second Reading of the Bill, but it was a statement which I can hardly allow to go uncontradicted. He says that the present Government have only passed two Bills which really have aided the agricultural interest. The noble Lord has forgotten one measure passed by the present Government, 1009 and a most useful measure—namely, the reduction of the land tax to a maximum of one shilling. That measure has brought infinite relief to a great many of those who have been struggling with agricultural depression; but apart from that, if there had not been a single measure of any description passed for the relief of agriculture, I maintain that the firm attitude which has been adopted by our Minister for Agriculture in successfully withstanding all insidious appeals that might have led to the introduction of foot-and-mouth disease and swine fever into this country, has done more good than any legislation that could possibly have been introduced. The other matter I wish to say a word or two upon has been touched upon by the noble Earl opposite, and that is the question of the omission of these words, "the inherent capabilities of the soil." I am well aware that the noble Viscount who introduced this Bill has got, as usual, a Royal Commission at his back, but I do maintain that if Parliament deliberately omits those words that have been in a previous Act people will naturally say, "Well, Parliament did not think it necessary to insert them." And apart from that, in the ordinary industry of agriculture, I submit to your Lordships that a most important element is the inherent capabilities of the soil. Lastly, I touch upon a matter which has been mentioned by both noble Lords, and that is the extraordinary drafting of this Bill. For years we have been engaged in trying to spread the land amongst the smaller people in this kingdom. We have had allotments, we have had small holdings, we are trying small farms, we are doing what we can to enlarge the number of tenants. Will any noble Lord tell me how it is possible, in three-fourths of a sheet of a Bill of this kind, to explain to any of these small men how he stands in relation to this matter? I know it cannot probably be done in this Bill, but I appeal to the noble Viscount, if he is again, as I hope he will be, in a position to help us in the agricultural world, that he will simplify the procedure.
§ On Question, agreed to. Bill read 2a accordingly, and committed to a Committee of the whole House on Friday next.