THE DUKE OF ABERCORN,in addressing to His Majesty's Government the following questions—
said: My Lords, in the few remarks which I am about to make I do not intend to make any personal attack on any members of the Land Commission in Ireland, for there are members of that Commission who have performed their work faithfully and loyally. My complaints are against the system and mode of administration, and it is with regret that I feel myself obliged once more to call your Lordships' attention to the Report and recommendations of the Fry Commission. I assure your Lordships that it is not a pleasure for me to do so; it is a necessity; it is an obligation; I only do it because I feel how just are the complaints of Irish landowners at the meager character of the efforts which have hitherto been made, either by His Majesty's Government or by the tribunals who are responsible for the proper administration of the Irish Land Acts, to endeavor to remedy the extraordinary defects in the procedure, practice, and methods of valuation heretofore adopted by those tribunals, and which were unanimously condemned in the remarkable Report presented to Parliament by the Fry Commissioners nearly three and a half years ago.
- (1) What recommendations of the Fry Commission have been adopted since 3rd May, 1899;
- (2) What recommendations have not been adopted.
- (3) What recommendations could not be adopted, without new legislation;
- (4) What objections are entertained by the existing tribunals to recommendations which they have so far refused to adopt;
- (5) Whether, and in what way, the average Prices of Irish agricultural produce and
43 stock (as annually published by the Land Commission, and now published by the Department of Agriculture) are considered and taken into account in the fixing of judicial rents; - (6) Whether, in determining the fair rent of a holding, pursuant to the provisions of Section 8 of the Land Law (Ireland) Act, there are any (and, if so, what) "circumstances of the case, holding, and district" (other than that specified in Section 8, Sub-section 10) which the Land Commission do not take into account; and what are their reasons for refusing to take same into account;
I have already brought this subject under your Lordships' notice on two occasions—on the 28th July, 1898, and the 27th April 1899—and it was brought up on a third occasion by my noble friend Lord Colebrook, on the 9th July, 1900. It has also been several times brought under the notice of the House of Commons. Speaking in general terms, the replies which have been made by the Government have been of a fourfold character. We have been told, firstly, that the Government have no power to require the Land Commission to 44 adopt any of the recommendations of the Fry Commission, or to reform their procedure in any way; secondly, that the Land Commission do not approve of some of the Fry Commission recommendations, and will not adopt them; thirdly, that they have adopted, wholly or partly, certain recommendations of which they approve; and fourthly, that there are some recommendations which could not be adopted without fresh legislation.
My Lords, it is no doubt true that the Government have, technically speaking, no control over the procedure of the Irish Land Commission; but it is also true, not technically, but absolutely, that the Fry Commission Report is the most sweeping and wholesale condemnation which has ever been pronounced by a Royal Commission upon the procedure and administration of any public department in the United Kingdom. In the face of this fact I deny that the Government are entitled to disclaim responsibility for the continuance of a system which has been so strongly condemned by a commission of their own appointing, and which was exceptionally well qualified to form an accurate judgment. Speaking on this subject in the House of Commons on 15th July, 1898, Mr. Arnold-Forster (who now is a member of the Government, and who has always been a most independent Member of Parliament) described the Report in these terms. He said:—
It is a fact that, at this moment in the United Kingdom there is a miscarriage of justice so great and so palpable that if such a thing were to occur in connection with a county court, or a session's court, in Great Britain, there would be something like a revolution.The opinion thus expressed by Mr. Arnold-Forster would, I believe, be almost universal if the English public could only be induced to make them selves acquainted with this report, and the evidence on which it was founded. Holding the same views myself, I deny that the Land Commission are entitled to continue to pursue any of the methods which have been so strongly and so justly condemned merely because they—the authors of them—do not approve of the remedies proposed by the Fry Commission. That Commission, however competent, made no claim to be 45 infallible; but the tribunal that objects to take their advice is bound to formulate, and give a fair trial, to alternative proposals, instead of merely allowing existing abuses to continue unabated. As to recommendations or reforms which have been adopted, and as to those which require fresh legislation, I shall have something to say when dealing with each of the questions which stand in my name on the paper.On the 27th April, 1899, I asked the Government (1) what alterations in procedure had been already adopted; (2) what further alterations had been decided upon; and (3) when would statutory rules be published to give effect to those alterations. In consequence of the short discussion which then took place my noble and learned friend the Lord Chancellor of Ireland, who is always most gracious and obliging on these occasions, was good enough to obtain for my noble friend Lord Mayo, on 3rd May, 1899, a memorandum and file of papers from the Irish Land Commission, containing very full particulars of any reforms or alterations in procedure which had been adopted up to that date. In the first question on the paper I have therefore only asked for particulars of any reforms that have been adopted between the 3rd May, 1899, and the present time.
The first reform on the schedule furnished by the Land Commission in May, 1899, related to new instructions for court values in cases of appeals. I am informed that these are good in themselves, but that in the opinion of land values of the greatest experience the inspection by court values continues to be of more than doubtful value as an independent valuation, owing to the fact that they are still furnished with the pink schedule, containing full particulars of the conclusions previously arrived at by the sub-commissioners, and that they do not attend the court at the re-hearing (when the evidence then given might qualify their opinions), and are not therefore examined on the evidence, either by the court or by the parties. The Fry Commission showed that there was a strong temptation to them under such a system to save them selves' trouble by simply copying the conclusions of the sub-commissioners. 46 This temptation still produces this result, for a case has been mentioned to me in which the sub-commissioners had reported that a holding lay north and south of the railway from Drogheda to Dundalk, instead of east and west, and the court values adopted the blunder in their so-called independent report.
The second reform that has been adopted is that the judicial commissioner from time to time gives directions to have reports of important legal decisions printed and circulated amongst the members and staff of the Land Commission. This is an excellent step, but it would be more satisfactory if a list of such cases were published, and the public allowed to obtain copies of these decisions. Attention should then be called to any important decisions that have been overlooked.
The third reform consisted in reverting to the old system (which had been temporarily abandoned) of informing the parties of the result of the court values' inspection, and enabling them to obtain copies of their report. This, of course, facilitates negotiations for an agreement between the parties wherever such is possible, but it has no bearing on the procedure of the Land Commission in any other respect.
Fourthly, the Land Commission prescribed an alternative form of procedure, intended to induce the parties to adopt a sort of short cut to the fixing of a judicial rent; but the method proposed appears to have found little favor, and there is no prospect of its being largely adopted.
Fifthly, either party has been enabled, for a small fee, to obtain a copy of the Pink Schedule relating to the case. This again is useful in negotiations between the parties, and in considering whether an appeal should be lodged.
Sixthly, new forms of the Pink Schedule, suitable to the provisions of the Irish Local Government Act of 1898, have been provided, but in other respects they are practically the same as the Pink Schedule previously in use.
The seventh reform was one from which much good might have been expected. It consisted in prescribing a course of examination for lay Assistant-Commissioners, but it was limited to new candidates, and is not applied to candi- 47 dates who may seek to be re-appointed on the expiration of any term for which they may have been already employed. The examination papers show that a considerable acquaintance is required with the use of the instruments employed for land surveying. But will it be believed that the Land Commission possesses no such instruments, and that the Sub-commissioners are never known to employ them? Again, I am informed that there is no practical examination whatever in the principles of land valuation, which is, of course, the most important subject of all. Indeed, I am told that, in the opinion of land values of great experience, the examination could be passed by mere book students, whose practical acquaintance with the principles and methods of land valuation would not enable them to make anything like an accurate valuation of land of any description. I could hardly find stronger proof of the absolute necessity of these candidates having a thorough knowledge of land valuation than by telling your Lordships that in the new instructions to Court Values, to which I have already referred, we find a paragraph in these words—
The land should be valued as if in fair normal condition, and not according to any exceptional or temporary condition, whether resulting from high cultivation or deterioration.I venture to say that none but values of the greatest practical experience could attempt to make a valuation upon these principles with any approach to accuracy. And, my Lords, who are the present values? I hope the noble Lord in the course of his reply will be able to give that information.The eighth reform so far adopted was a return to the old system, under which two lay Sub-commissioners were associated with each legal Sub-commissioner, and each holding was inspected by two lay Sub-commissioners. This method is, of course, indispensable, but it could do little of itself to secure trustworthy results unless other important defects in the system as a whole were also remedied.
The ninth and last of the changes introduced prior to the 3rd May, 1899, consisted in requiring the tenant in some cases, and the landlord in all cases, to serve notice on the other side of certain 48 improvements if it was intended to claim any. It is comparatively easy for a tenant to do this, for in almost every case he knows what improvements were made on his holding, and whether or to what extent they were made by the tenant or by the landlord. The landlord, on the other hand, knows little or nothing in many cases of the origin or history of these improvements, for prior to 1881 there was nothing in the law to make it desirable or necessary for him to keep any record respecting them for his own protection. When, therefore, it was decided that cross notices should be served by each party on any branch of this question it would have been only fair that any notices required to be given by the landlord to the tenant should also be required to be given by the tenant to the landlord. The procedure, however, has been so framed as to make it as favorable as possible to the tenant and as difficult as possible for the landlord. It would be interesting if we could be given some intelligible reason for the procedure being one-sided.
On the whole, my Lords, it will be seen that these changes or reforms have done and can do but little to make the procedure and valuations of the Land Commission more uniform or less unintelligible; and this brings me to the second question which I have placed on the Paper, as to recommendations of the Fry Commission which have not been adopted. Speaking generally, I may say that these non-adopted recommendations include all the reforms which were recommended by the Fry Commission with the object of securing uniformity of practice, or of valuations, or of making the rent-fixing tribunals less one-sided in their composition, or of removing what the Commissioners so truthfully described as "the almost universal dissatisfaction" with the procedure in appeals.
My Lords, I ask why have all these most important and far-reaching recommendations been rejected or ignored? There is no dispute, I believe, as to the existence of the abuses and evils which they were proposed to mitigate or remedy. Are we to be told that these abuses and evils must continue because the Land Commission do not approve of the remedies proposed for them? Is there no obligation on the Land Com- 49 mission to propose and give a trial to other remedies if they do not like those proposed by the Fry Commission? Is there no obligation on His Majesty's Government to insist that at least some serious effort must be made to do justice, or to prevent injustice?
I should weary your Lordships if I attempted to deal in any detail with those rejected recommendations. I must content myself with simply mentioning a few, to which I attach great importance, with the object of showing their reasonable and practical character. For instance, the Fry Commission recommend that more detailed instructions should be given to sub-commissioners, to guide them on difficult questions, and to remove the prevailing "diversity of opinion and of practice"; that, in fixing second-term rents, evidence of what was done at the fixing of the first-term rent should be taken into consideration, especially as regards improvements and the rate of interest placed on their value; that, in the Pink Schedule, in order to negative the tendency to allow illegally for an occupation interest, there should be a direction to state the annual value on the assumption that the holding is in the landlord's hands (an eminently logical and reasonable proposal, because Section 1 of the Act of 1896 requires them to state the fair rent, on the assumption that all improvements on the holding had been made or acquired by the landlord); that drains and fences allowed should be indicated on the large-scale Ordnance map when possible; that when an annual sum is allowed in respect of improvements, it should be stated whether the charge is to be permanent or to terminate at a given time; that court values should be a separate body of officials, distinct from sub-commissioners; that they should not be furnished with a copy of the Pink Schedule, but only with a map and description of the holding; that their report (to be independent) should be made in ignorance of the findings of the court below; that they should attend the court in appeals, should act as assessors to the Land Commission, and be liable to be examined by them; and that there should be a judicial definition or explanation of the words "fair rent."
My Lords, I await with interest the 50 reply to my third question, as to the recommendations of the Fry Commission which could not be adopted without fresh legislation. I have heard on good legal authority that they are very few, and embrace hardly any of the important recommendations which I have just described.
I look with even greater interest for information on my fourth question, as to the objections entertained by the existing tribunals to the recommendations which have not been adopted, especially to those which I have just mentioned as especially important and valuable.
My fifth question deals with the average prices of Irish agricultural produce and stock, as officially published every year by the Land Commission from 1881 to 1899, and now published by the Irish Department of Agriculture. These figures, my Lords, have long been collected at great public expense. I desire to know whether any and what use is made of them in fixing judicial rents, especially because they in no way justify the enormous reductions which the Land Commission have been making in second-term judicial rents during the last four or five years. It is generally believed that no attention whatever is paid to these prices by either the sub-commissioners, the court values, or the chief commissioners; and yet, if properly applied, and coupled with figures showing the fluctuations in the cost of production, they ought to be of the most material assistance in revising at the present time any rent that had been fixed, judicially or otherwise, since 1881.
As regards my sixth question, I gave private notice to His Majesty's Government that I chiefly desired information as to whether the element of fair competition or market value, and the fluctuations in the cost of production are regarded, and taken into account (and, if so, in what way) as "circumstances of the case, holding and district" in fixing judicial rents. The Land Commission, in, collecting the prices of agricultural products and stock appear to have ignored the prices of items which are required for the production of those products and stock. It would be interesting to know why this is the case, and whether anything can be done to obtain these important additional figures, 51 both for each year of the period since 1881, and for each year in future. The cost of production is manifestly a "circumstance" of every "case, holding, and district," and so are the prices of agricultural products and stock. Under Section 8 of the Land Act of 1881 it would seem, therefore, that both these elements ought to be considered in fixing judicial rents. As to fair competition value, it is manifest that in almost every case, at the time when the tenancy was first created, the rental value of the holding in the local market, arising from the laws of supply and demand, must have been a "circumstance of the case, holding, and district," and would be found to be such a "circumstance" at any time afterwards if (1) the holding came back into the landlord's hands, or if (2) the tenant were selling his interest in the holding. In fixing a fair rent it would seem, therefore, to be the duty of the court to put a fair value on this market or competition value, and to give the benefit of it to the landlord. If this is done I wish to ask how it is shown or indicated in the Pink Schedule. On the other hand, if the element of competition is entirely excluded, it would seem to follow that the court fixes not a fair rent but a low rent, and thereby gives the sitting tenant the benefit of an occupation interest, which has been held to be illegal. I am informed that in a case, Markey v. Gosford, the Land Commission actually decided that competition value must be entirely left out of the account. If this is their general practice, it is very easy to account for the enormous reductions they make in rents. I should like to ask English and Scottish landlords what their rents would be if it was assumed that there was no demand for their lands. It seems to me that on such an assumption the fair rent should be simply whatever the sitting tenant might be pleased to fix for himself. In Ireland we have been legislated into something very like that position, and yet some people say there has been no confiscation.
My Lords, this whole subject is, I know, highly technical, and not an easy one to present in an attractive form, but I bring it forward under a sense of justice and of public duty, and I appeal, not so much perhaps on behalf of wealthier 52 landlords in Ireland, but of those poorer ones who are being every day deprived of their properties and driven out of their homes. What we want to see is that these Land Acts are fairly and properly administered, and to know the grounds and reasons why rents are reduced. I can only add that, if these Acts were applied to England, public opinion would insist on their being administered in an intelligible manner. I do hope, my Lords, that we shall receive a satisfactory answer or answers from the noble and learned Lord the Lord Chancellor of Ireland, because if such answers do not seem satisfactory to us, I shall feel bound to ask your Lordships for a Committee of your Lordships' House to inquire into the matters which are contained in my questions. I beg now to ask His Majesty's Government the six questions which stand in my name on the Paper.
LORD CLONBROCKMy Lords, at this very late period of the evening I would certainly not trouble the House with any remarks, but as I brought practically the same question before the House last year, I rise just to express the hope that the noble and learned Lord on the Front Bench may be able to give us rather fuller information than he did on the previous occasion. My noble and learned friend, in reply to several questions I put to him, stated that the Land Commission did not agree with the Fry Commission, and therefore did not approve of these recommendations. But, my Lords, we should like to know, not only why they did not approve these recommendations, but as these recommendations were made in the Report of a very strong Commission in consequence of some defect in procedure or existing grievances, and also commend themselves to many people who have had great experience in the working of the Land Acts, we wish to know why, if they did not approve of these precise recommendations, they have not adopted any analogous regulations which might do away with the grievances which the Fry Commission deemed to exist.
There are several points which I should like to bring before your Lordships, but it is far too late now to enter upon them. I will only mention one of the most important, and that is one that has been 53 alluded to by my noble friend, namely, the definition of fair rent. On the last occasion my noble and learned friend stated that the Land Commission were unable to accept the definition given by the Fry Commission, and he gave reasons for it based on the judgment of Sir James Meredith in a well-known case of Ripley v. Macnaghten, and also a judgment of Lord Justice Fitzgibbon on the ground, first, that the words "in the landlord's hands" were not in the Act of Parliament, and secondly, that it would be proceeding on a false assumption that it was in the landlord's hands, when the land must necessarily be in the hands of the occupying tenant. This answer created considerable perplexity in my mind at that time, and in the mind of everybody else to whom I have spoken since. If the position of the occupying tenant differs so much from that of the new tenant, it seems clear that the occupying tenant must hold and possess some right, interest, or title which the new tenant has not, and to the ordinary lay mind it is impossible to distinguish that from the occupation interest, which the Land Commission have pronounced to be illegal, and not to be taken into account in fixing a fair rent. I do hope that the noble and learned Lord will be able to point out some distinction between these two things, and it is most important that this should be done, for, at the present time, everybody is surprised at the reductions of rent which are taking place, reductions which they think cannot be justified by any fall in prices, for the period of fifteen years from now would commence after the great fall in prices. There has been no great fall in the price of agricultural stock since the commencement of that period, and therefore they are of opinion that, in some shape or form, the occupation interest or something akin is still taken into account in fixing the rent. We do not ask these questions out of simple curiosity or from any desire to embarrass the Land Commission, but in the interests of all people concerned in the matter of Ireland. There are many people of small means who are losing the means of existence from the way their rents are pared down, and they do think that they have a right to have an account of the reasons for which this is done.
THE EARL OF KILMOREYI, like the noble and the learned Lord who has just sat down, will not venture to occupy your Lordships' attention for many minutes at this late hour, but I should like, with your Lordships' permission, to say a few words not only in support and in sympathy with the noble Duke in all he said in drawing the attention of the House to a state of affairs that could not possibly exist in any other part of His Majesty's dominions except Ireland, but because I am going to venture to introduce quite a new light on the argument, and that is, although I quite understand all the difficulties and complaints that arise with reference to the working of the Land Act of 1881, I go so far as to say why should not they be all removed by one perfectly clean sweep, namely, the repeal of the said Act. We all know that the noble and learned Lord who is going to answer these questions was not enamoured of that Act when it was brought in, and I remember the attitude that he took up at that time, and I hope the day is not far distant when we shall see him rejoicing at its decease and burial. The Act was brought forward at a time when the state of Ireland gave the Government of the day a great deal of anxiety. The circumstances were then exceptional, and therefore they led to legislation also of an exceptional character; but twenty years have elapsed, and the state of Ireland is not now what it was then. The object with which the Act was passed—namely, the fixing of fair rents—has practically been gained, and I may say that if a tenant has not been able to take advantage of the facilities of that Act to get his rent fixed fair in twenty years, he does not deserve any further consideration, and if the members of this Land Commission Court have not been able to complete their labours within twenty years, really I think I am justified in saying that they no longer deserve to put the country to the enormous expense which it at present has to bear through the constitution of this court. Perhaps your Lordships are not aware, though many us are, that it costs the country over £120,000 a year to keep that court going, and what for? Merely now to pare down rents that have been already pared down on a basis which, as the 55 late Lord Dundreary said, "no fellah can understand." I hope your Lordships will forgive me for intruding at this moment, and I hope that before long some intimation will be made that there will be some finality to an Act which was brought in in 1881, of which I believe one or more eminent statesmen declared that it was only a modus vivendi, having in their minds some still larger and more comprehensive scheme for facilitating the transfer of land from their tenants to the occupiers.
§ THE LORD CHANCELLOR OF IRELAND (Lord ASHBOURNE)My Lords, no doubt what the noble Lord who has just sat down has said represents a very common idea, but I do not think it is a very practical one—that it would be very pleasant and satisfactory at once to bring in an Act of Parliament repealing the Act of 1881 and all similar legislation. That is not what I call a feasible or practical suggestion. I do not pretend for a moment that I have changed my views in respect of this legislation, but there is no doubt that the feeling of dislike and distaste of that legislation colours all the views which are entertained with reference to the Fry Commission, and therefore it leads to a critical and suspicious state of mind in reference to every speech that is made from this bench upon the matter.
Now, my Lords, it is a curious fate that puts me, who have spoken so much against the Act of 1881 in another place, to have to answer questions in reference to this matter. I have never changed a single view that I ever expressed or receded from a single proposition that I ever uttered, but I have to look at the thing from the practical and reasonable standpoint. The legislation represents what is now the law of the land. It must be fairly administered, and we must apply our minds to understanding what is reasonable and what is proper in reference to all proposals made on the subject.
With reference to the Fry Commission, this is "the fourth time of asking." I think it is the fourth time at this Table that I have been called upon to make speeches of more or less length in reference to the Fry Commission and its recommendations. Well, I am not going to repeat my speeches; there is nothing 56 so tiresome to an audience, and there is nothing so immensely tiresome to the speaker as to repeat his speeches all over again; but may I venture just to make this observation, which must always be made on these occasions, that we must remember that the Land Commission is not a Commission that is a mere Government Department that we can direct to take up and accept such and such proposals and reject others. For weal or for woe, it was given by the Act of 1881 the great powers of a Commission, powers which were independent of the Government. I am not defending that part of the Act, but we must take the Act as we find it. Parliament created the Land Commission, and gave to it great and independent powers.
Then, what was the Fry Report? One would think from the way my noble friend spoke of it that it was some fetish to be worshipped—that it was a kind of Divine revelation, to be accepted as the teaching of a higher and superior wisdom. Well, that is unreasonable. The landowners themselves do not accept some of its most important proposals. There is no part of the Fry Commission that has applied itself more resolutely than that which seeks to show that the higher prices which are paid for tenant-right cannot be accepted as demonstrating that the rents have been unduly reduced. That is a sheet anchor of the landlords' argument. I do not say whether there is not a great deal in it; I have never said so, but the Fry Commission itself resolutely refused to accept it. Another point which the Fry Commission point out with extreme force is the very powerful argument against the large, and lavish, and indiscriminate appeals against the decisions of the Sub-Commissioners. That has been treated as mere idle talk and waste paper. It has had no effect on the number of appeals; they are just as largely and indiscriminately taken now as when, three years and a half ago, the Commission made its report. Appeals possibly are even more common now than they were at that time.
Then, my Lords, what is the position of the Land Commissioners with reference to the matter? Are they supposed to take over every single recommendation of the Fry Commission in globo, and 57 treat it as a revelation? It is idle to suppose anything of the kind. The meaning of appointing a Royal Commission is that the selected men consider a thing and make such recommendations as commend themselves to their judgment. They make their recommendations, and you have to examine them and criticise them, and you only take those you approve of, and do not take those that you do not approve of. That is just what the Land Commission have done. They adopted, as I showed last year, twelve or fourteen recommendations. They applied their minds to them independently, and took those they approved of and rejected others which they thought required legislation or were not prudent or expedient; and there is no power to compel them to act against their considered and deliberate judgment of what they thought right and prudent, and in accordance with the Code that had been committed to their hands.
Now, I have already on previous occasions given a sufficiently long statement of what has been done, and I do not propose to repeat that statement. A great deal of the information which the noble Duke asks for he obviously possesses himself already, because in a long list published by the Landowners' Convention, of which I think he is the president, they have threshed out this question, and anyone could see in that report what has been done and what has not been done, and what requires legislation and what does not. In fact, every single point on which I am interrogated may be found in that Report. I am now asked to explain what has been done since the 3rd May, 1899. I will give the list, very shortly, having regard to the hour. First, there is the examination and testing of drains by Appeal Court Valuers, by an order of 18th May, 1901. It was in a less complete state before that for some time. Secondly, there is a similar instruction for the information of assistant commissioners of the same date. Thirdly, the Fry Commissioners were extremely strong in pointing out the saving of time and expense there would be in carrying out purchases by fiats rather than by vesting orders. That has been effected in suitable cases by an Order of the 6th May, 1901. Then another matter that the Fry Commission attached 58 great weight to was this. They said that in many cases where the Land Commission should be satisfied it was unreasonable to require inspection, which involved great trouble and expense, that has been dispensed with, where it could be done, by an order of 17th May, 1901. An order of the same date also dispensed with the old and expensive statement of facts on the apportionment of superior interests. I have to deal with the matter in a technical form, but anyone will know who is conversant with the question that that effects a very substantial saving of time and expense in the administration of the Purchase Code. Then the Fry Commission pointed out that there was considerable delay and expense occasioned by distributing the purchase money through the machinery of a branch of the High Court rather than keeping it under the Land Commission. By a recent order the old practice is restored, and the purchase money is distributed by the Land Commission, and under the supervision of the Judicial Commission. I might say more upon that, but it would not be reasonable to detain your Lordships at this hour. Another point that the Fry Commission dwelt on very much was this. They urged that it was not reasonable to put the parties to the great expense of searching for original patents and getting extracts from them. That has been given up also by a recent regulation.
§ LORD ASHBOURNEYes. They had to be searched for for certain purposes, when they came in as part of the title. It is more or less a technical matter, but it is one that the Commission attached considerable weight to. Now, I would be glad to be allowed to stop here, because I have practically answered all the important questions on the Paper. But, the noble Duke asked me what were the other recommendations of the Fry Commission that had not been adopted, and the reasons why they have not been adopted. He knows perfectly well the recommendations that have not been adopted; he has his own list of those that were adopted, and those that remain after eliminating these 59 comprise the list of recommendations not adopted. I have dealt with these very fully on former occasions, and I will only give a summary of a few of the more important, and that I am sure will satisfy the noble Duke. I do not think I do any injustice to his or my noble friend Lord Clonbrock's argument when I say that the principal thing they go upon is the Fry Commission definition of fair rent. It is obvious that that is the first thing in their minds, and not unnaturally so. Last year I went in great detail into this question, and I took some pains to make my meaning perfectly clear. I quoted from Judge Meredith. I gave the reference to the case of Markey v. Gosford, and to another case in the Court of Appeal, and I quoted Lord Justice Fitzgibbon's decision that the words "in the landlord's hands" implied an assumption contrary to the fact, and I pointed out that, that being so, that being the judicial interpretation given to the racommendation of the Fry Commission, it appeared to me that unless legislation came in it would not be possible to apply universally the definition of the Fry Commission. I would point out this—as I have often done before—and then I will leave the subject. The Act of 1881 did not attempt to define "fair rent." It said that the Land Commission should have regard to the property of the landlord and of the tenant and to "the circumstances of the case, holding, and district." It did not go an inch further. It selected the Commission and left them at large. And, although the question has come up before Parliament many times since in amending Acts, nobody in either House of Parliament has ever yet suggested a form that could be put into an Act of Parliament as a definition of "fair rent."
THE DUKE OF ABERCORNWhat I am anxious to press on my noble friend is that if that definition is not accepted some other definition should be laid down; because surely, there must be some definition—unless we are going to assume that nothing "fair" can be done under the old Act at all.
§ LORD ASHBOURNEThe way Parliament left it under the Act of 1881 (I am not concerned to defend the Act at all) was that the "fair rent" should be found, having regard to "the circumstances of the case, holding, and district." That was the guidance of Parliament, and its sole guidance, and my point is this, that, although that has come up before Parliament some four or five times for revision and amendment, on not a single occasion has any attempt been made, either in this House or in the House of Commons, to suggest anything that can be called a definition of "fair rent."
§ LORD ASHBOURNEThat only supports my point, because that was eleven years before the Act of 1881. You have in the Act of 1881 a deliberate abstention from giving anything approaching a definition of "fair rent"—you have no guidance except the words I have quoted. I do not desire to dwell on that subject. I have shown by reference to judicial decisions that the recommendations of the Fry Commission have been rejected as inapplicable and unacceptable as a definition, and it would therefore appear that legislation would be required to make the definition applicable to all cases.
Then I pass on to another point. I am asked as to the recommendations of the Fry Commission, "That more detailed instructions should be given to sub-commissioners to guide them on difficult questions and to remove the prevailing diversity of opinion and of practice." Well, we cannot interfere with a judicial discretion, but I may make this general remark. When the Fry Commission made that recommendation they pointed out that on certain matters of capital importance the sub-commissioners were left without guidance. That cannot be said now. Since the Commission reported there have been decisions on many of the points mentioned by the Commission, and each one of those decisions is brought to the notice of the Assistant Commissioners, and thus they have guidance from 61 decisions of the very highest authority on all matters upon which the Fry Commission said it would be wise to give them instructions, such as occupation, interest, improvability of the soil, true value, competition value, and so on. Then it is said that all the Assistant Commissioners and court valuers should be permanent. I do not think I need discuss that. I think it is now conceded that that is not a proposition that can be entertained. Then it is said that in fixing the fair rent of a second term the first proceedings shall be considered. So they are. Then it is said that the Pink Schedule should have more matters introduced into it. I do not agree with my noble friends about the Pink Schedule, but it was their creation. In 1896 they insisted upon the Pink Schedule, so that there could be no escaping from it. In my opinion, even then the Pink Schedule was an enormously heavy business; it was loaded with a mass of detail and information, and now the suggestion is made, following some of the suggestions of the Fry Commission—but not all of them—that other additions should be made. I believe the Land Commission are of opinion that the Pink Schedule is already seriously overloaded, and that it would be most unwise, in the interests of reasonable and practical administration, to seek to go into any more topics. I could give other reasons for that, but it would take a considerable time.
I apprehend, from an interruption made last year, that I need not go into the suggestion that where a farm is shown to be deteriorated the Land Commission do not act with fairness and independence, and refuse to take up the question at all while the farm is in that bad state. I was stopped last year, but I am prepared to show that the Land Commission, when a farm is in a state of deterioration, at once adjourn the hearing and take very drastic measures. I dealt last year with the statement about the valuers being a separate and independent body, and I also dealt with the further point that the Assistant Commissioners should be ignorant of what had been done by the original Commissioners; that was fully gone into by Lord Justice Fitzgibbon, 62 a very able colleague of mine in the Court of Appeal. I never could under stand the possibility of maintaining that suggestion. The idea that when a man is sitting down to find out a thing, you should tie a cloak over his eyes, and say that he is not to know what everyone in the court knows, strikes me as simply fantastic.
THE DUKE OF ABERCORNI may remind my noble friend that it is done under the Agricultural Holdings Act in England; it is expressly provided in that Act.
§ LORD ASHBOURNEI do not believe in it myself, but I will not pursue that matter further. My noble friend referred to prices. I have had sent to me a volume—a painfully large volume—of prices, and I am told that these prices are circulated most carefully, and that every possible means is taken to enable people to know all the prices. I believe, also, that the proper time for taking those prices, and the cost of production, into account is when you are examining a holding with a view to measuring its fair rent. Everything is done to give information, and prices and cost of production may, of course, vary with each holding. Then the last question is (with the supplement that my noble friend has furnished me with privately) one that would terrify a man who had not a reasonable amount of courage and a considerable experience in dealing with this class of question. It is—
Whether, in determining the fair rent of a holding. … there are any (and, if so, what) 'circumstances of the case, holding, and district' (other than that specified in Section 8, Sub-section 10) which the Land Commission do not take into account; and what are their reasons for refusing to take same into account.I should think they took everything into account. I have no means of cross-examining the Land Commissioners on the views they take of their functions and, with reference to the detailed memorandum handed to me by the noble Duke, I cannot answer those questions at all; but I say that the law on these subjects has been authoritatively ascertained by legal decisions open to everyone, five of which I have already referred to, and all have access to those decisions. If I occupied more 63 time with attempting to read and explain judgments I should simply weary your Lordships. Upon practically every topic that is referred to judicial decisions have been pronounced, some of them by the Court of Appeal, some by the Judicial Commissioner of the Land Commission, and everybody can ascertain the law by the simplest reference to those extremely well-known decisions.
THE EARL OF MAYOMy Lords, I find myself for the second time in the position of having to answer the noble and learned Lord. His speech to-night is I may say, without saying anything rude I hope, practically a repetition of what we heard on the last occasion. The differences are very small and very slight. He said that the matters that had been dealt with by the Land Commission on the recommendation of the Fry Commission were only technical. They were so technical that they required explanation at the hands of one of the best lawyers we have ever seen in dealing with the Land question. The only important new statement the noble and learned Lord made was this, that the value and interest of the landlord and tenant were taken into consideration. Well, my Lords, the noble and learned Lord's statement, that he hates the Act of 1881—
§ LORD ASHBOURNEI do not think I said I hated it; I am not a lover of it.
THE EARL OF MAYOWell, not to love a thing is much the same as to say that one hates the thing. But I may say that I pity the noble and learned Lord, with the knowledge that he has got, to have to stand up here and defend it, and defend it after the finding of the Fry Commission. I quite agree with him that it is quite impossible without legislation to deal with a great many of the questions that the Fry Commission recommended should be dealt with. But the answers of the noble and learned Lord are not satisfactory. The first question I think I have dealt with; he said that these were only technical things. They are very small things, and he mentioned one of them with regard to the Purchase Code. Now the noble Duke in the course of his speech said nothing about the Purchase Code.
§ LORD ASHBOURNEI was asked what changes were made in deference to the Fry Commission, and all the changes I mentioned were made in deference to that Commission.
THE EARL OF MAYOI apologise to the noble Lord; I missed that explanation. So much, then, with regard to the first question. The noble and learned Lord then referred to the search for patents or titles. That is a very small question.
§ LORD ASHBOURNEIt may be very expensive.
THE EARL OF MAYOIt is very expensive, we know, but if the specification of title were made easy and less expensive, it would be much better. Then the noble and learned Lord said broadly that without fresh legislation there could be no definition of fair rent. That is a very thorny subject, and it has been threshed out over and over again. If the noble and learned Lord says that there cannot be a definition of fair rent without legislation we must accept that, but all the legal luminaries in Ireland were gathered together to furnish a definition of fair rent, and no proper decision was arrived at.
§ LORD ASHBOURNEI dealt with that in my speech.
§ THE LORD CHANCELLOR (The Earl of HALSBURY)I would remind the noble Lord that the rules of debate do not allow of a running dialogue between two noble Lords.
THE EARL OF MAYOTo conclude my observations, I am of opinion that the answer of His Majesty's Government was unsatisfactory, and the noble Duke who put the question will no doubt give notice that he will move for a Committee of your Lordships to report on the points referred to in the questions he put to-day.
THE DUKE OF ABERCORNMy Lords, I beg to give notice that the reply of His Majesty's Government being unsatisfactory, and I will on Thursday next, the 18th instant, move for the appointment 65 of a Select Committee of your Lordships' House to inquire into and report on the several matters comprised in the questions which I have put to His Majesty's Government on this subject.
§ House adjourned at a quarter past Eight of the clock, till to-morrow, half-past Ten of the clock.