§ THE PRESIDENT OF THE BOARD OF AGRICULTURE AND FISHERIES (Earl CARRINGTON)My first two Amendments are of a purely verbal character.
§ Amendment moved—
§ "In page 1, line 19, to leave out the word 'his' and to insert the word 'a."—(Earl Carrington.)
§ On Question, Amendment agreed to.
§ Amendment moved—
§ "In page 1, line 24, after the word holdings,' to insert the word 'England."—(Earl Carrington.)
§ THE DUKE OF NORTHUMBERLANDwished, before this Amendment was put, to raise a point in regard to which he hoped the noble Earl the President of the Board of Agriculture would be able to give the Committee some information. He desired to know the exact position 523 in which they were now that all reference to the inherent capabilities of the soil had been struck out.
THE CHAIRMAN OF COMMITTEES (The Earl of ONSLOW)thought that the proper time for any general observations oh Clause 1 would be when the question was put that the Clause should stand part of the Bill.
§ On Question, Amendment agreed to.
§ Drafting Amendment agreed to.
THE EARL OF CAMPERDOWNmoved to leave out "determined by" and to insert "referred to" in sub-section (2). This was, he explained, the first of three or four Amendments to this sub-section. They all hung together, and were designed for the purpose of clearing up a point which was at present obscure. If their Lordships would look at sub-section (2), they would find this provision—
All questions which, under the Agricultural Holdings Acts, 1883 to 1900, or this Act, or under any custom or contract of tenancy, are to be determined by arbitration shall, notwithstanding any agreement to the contrary, and whether the tenancy commenced before or after the passing of the Act, be determined by a single arbitrator.If the questions had been limited to those under the Agricultural Holdings Acts, there would not be any obscurity at all. But by adding the words "or under any custom or contract of tenancy" doubts had been raised in the minds of land agents both in England and in Scotland, and in the minds of many of their Lordships, including himself, as to whether it might not be supposed that the Government were intending to do away with mattesr of valuation and similar things of that kind contained in any contract of tenancy. Lord Carrington had told them the other day that that was not the intention of the Government, and, therefore, he had drafted these words in order to put more clearly, as he thought, the intentions of His Majesty's Government. He would deal with the Amendments as he came to them. The first one, which he now moved, was to strike out the words "determined by" and to insert the words "referred to." 524 It was true it was only a drafting Amendment, but at the same time it was to a certain extent a matter of substance. Where arbitration was mentioned in the present Acts the words "referred to arbitration" and "reference to arbitration" were applied, and he thought they should use the same terms in this clause.
§ Amendment moved—
§ "In page 1, line 26, to leave out the words 'determined by,' and to insert the words referred to."—(The Earl of Camperdown.)
§ EARL CARRINGTONI think my noble friend and the Government mean the same thing. I am advised that the words "determined by" are correct, inasmuch as in the present Acts, with which this Act should be read, there is a provision that questions shall not only be referred to arbitration but that they shall be determined in that manner. I think it will be better to use the same phraseology when the same thing is intended. I am advised that "determined by" are the better words.
THE EARL OF CAMPERDOWNsaid that if the noble Earl was so advised he would not insist on the Amendment.
§ Amendment, by leave, withdrawn.
VISCOUNT GALWAYmoved an Amendment providing that these questions "may," instead of "shall," be determined by a single arbitrator. He had put down this Amendment because there seemed a great deal of doubt owing to so many references to other Acts as to exactly what the effect of the sub-section would be. The question was whether it was intended compulsorily to require all questions of valuation between the outgoing and the incoming tenant to be settled by one arbitrator or whether the provision referred only to the question of improvements in sub-section (1). In the past the outgoing and the incoming tenants had always been able to arrange these details satisfactorily themselves. If the sub-section as it stood did away with the liberty of each of the parties to appoint his own valuer, that was a serious matter. It ought to be left optional.
§ Amendment moved—
§ "In page 2, line 1, to leave out the word 'shall,' and to insert the word 'may."—(Viscount Galway.)
§ EARL CARRINGTONThe Amendment which Lord Galway has moved is a very important one, and I regret I am unable to accept it. I think, however, I shall be able to explain my action satisfactorily to him. It is very desirable when Parliament enacts that certain questions should be determined by arbitration that they should state clearly and precisely what the form of arbitration should be, so that expense and litigation may be avoided. Our great object in the Bill is to make the settlement of differences between landlord and tenant as inexpensive as possible. What we want to insure is that the arbitrator should always act judicially and not as the advocate of one side or the other. As it is at present, the two valuers—they are called arbitrators—meet, and when unable to come to a decision, bring in a third person who is called an umpire. What we want is that instead of "umpire" you should read "arbitrator." Our object is to bring about an improvement in the arbitration work and in the position of the arbitrator now that his duties are considerably increased. I can assure the noble Earl that there is no intention whatever of interfering in any way with the present arrangement by which two valuers are appointed. There is a good deal to be said for the present arrangement, and there is nothing to interfere with it except that the arbitrator will not be allowed to go behind the back of the tenant and the landlord to select the umpire. If, and only if, they fail to agree, these two umpires then refer the matter to a single arbitrator, whose decision will be final. That is the object of the Government. Our endeavour is to simplify and cheapen the procedure in settling cases of difference which must arise, and to do away with the old difficulties that have often come before the Board, sometimes to such an extent that disputes have gone on for two or three months at a cost of several hundred pounds, and not on the main question but on the question of whether or not the matter was to go to arbitration. 526 Noble Lords will surely agree that that procedure needs improvement, and therefore it is that, after due consideration and deep thought, we have come to the conclusion that the appointment of a single arbitrator on the conditions I have named is the proper course to pursue. As I have said, I cannot accept the Amendment, but I hope the noble Lord will be satisfied with the explanation I have given.
§ VISCOUNT ST. ALDWYNdid not feel quite sure that the noble Earl fully appreciated the point which his noble friend who moved the Amendment had endeavoured to enforce. In the case of a difference between landlord and tenant, that difference might be settled under the Agricultural Holdings Act by two arbitrators and an umpire, or by a single arbitrator. What Lord Carrington desired to do, as he understood, was that when reference was made to the Board of Agriculture, the Board of Agriculture should appoint only one umpire.
§ EARL CARRINGTONThe noble Viscount has put the case in a nutshell. That is exactly what is intended.
§ *VISCOUNT ST. ALDWYNsaid that in every case of an outgoing and an incoming tenant there must be a valuation, in which two valuers were appointed. If they differed in such a case an umpire had to be called in to settle the matter, but, as a rule, they were able to agree. They did not want that system interfered with. They did not want all these matters referred to the Board of Agriculture for them to appoint an arbitrator. He thought the words as they stood did seem to preclude the ordinary course of valuation between an outgoing and an incoming tenant, because the noble Earl had inserted in the clause the words "under any custom or contract of tenancy." He did not think the subsection as it stood was at all sufficiently explicit to make it quite clear that the system he had referred to would not be interfered with. He was quite sure that the general wish of the agricultural world was that it should not be interfered with. He thought the Government might reconsider the point.
§ EARL CARRINGTONWe are quite prepared to accept the Amendment standing in the name of the Earl of Camperdown, to insert, after "1900," the following proviso—
Provided that nothing in this section shall interfere with or prevent any contract or agreement between the landlord and tenant for an outgoing or other valuation.
§ VISCOUNT ST. ALDWYNthought this would meet the case, subject to the reconsideration of the words, if necessary, on Report.
*LORD BALFOUR of BURLEIGHhad no desire to interfere with a harmonious arrangement, but he did not think the insertion of the words proposed would meet the point. That proviso apparently was for a valuation which would not require to go to arbitration at all. Their point was that if they had to go to arbitration they should preserve the preliminary consideration of the matter between two friendly valuers, and should not be cut out of that method of procedure.
VISCOUNT GALWAYsaid that after the explanation of the noble Earl he was quite prepared to withdraw his Amendment, provided it was clearly understood that in no way would the old custom of each party having their own valuer be interfered with.
§ Amendment, by leave, withdrawn.
THE EARL OF CAMPERDOWNmoved to alter the position of the words "notwithstanding any agreement to the contrary." This was, he said, little more than a drafting Amendment.
§ Amendment moved—
§ "In page 2, line 1, to leave out the words 'notwithstanding any agreement to the contrary and."—(The Earl of Camperdown.)
§ EARL CARRINGTONIf I understand the noble Earl correctly, we are quite prepared to accept his Amendment. As I understand, the sub-section, as he proposes to amend it, would read as follows—
All questions which, under the Agricultural Holdings Acts, 1883 to 1900 or the Agricultural Holdings (Scotland) Acts, 1883 to 1900, or this 528 Act, or under any custom or contract of tenancy, are to be determined by arbitration shall, whether the tenancy commenced before or after the passing of this Act, be determined, notwithstanding any agreement to the contrary, by a single arbitrator," etc.
§ EARL CARRINGTONI do not in the least object to this re-arrangement.
§ On Question, Amendment agreed to.
*THE EARL OF YARBOROUGH,who had several Amendments on the Paper, said they were all designed with the object of carrying out what he believed had now been achieved by the acceptance of Lord Camperdown's Amendment. He did not intend, therefore, to move those Amendments.
§ *LORD HENEAGEquestioned whether the proviso which Lord Carrington had expressed his willingness to accept would secure the retention of the custom in the various counties. He was not altogether satisfied that Lord Carrington clearly understood what the custom in some counties was. The present mode of procedure was that when there was a change of tenancy one valuer was appointed by the outgoing tenant, and one by the incoming tenant or the landlord, as they might choose; but under the present Act he was not an arbitrator and could not be an arbitrator. He could only be appointed as an agent, and his decision would only be able to be determined under the law of agency. That was to say, if two people agreed either by themselves or by their agents, under the law of agency that was a determination of the fact and was as good as law. But under this Bill they would not be able to do what was now the custom. The custom was for the two valuers to appoint an umpire beforehand, and if there was any single item upon which any difference of opinion arose, that item was referred to the umpire, whose decision the valuers were bound to accept. This was done at very little expense, and only the one item in dispute was arbitrated upon. If in the case of a valuation fixed at £500, one valuer thought there ought 529 to be another item added, and that it should be £550, what would go before the arbitrator for decision would be that solitary item; but, as this clause stood, if the two valuers did not come to an agreement, the whole question had to go before the arbitrator. The noble Earl had said that the object of the Board of Agriculture was, as far as possible, to lessen expense. He was afraid the contrary would be the result. What he wanted to be assured of was that if the Committee accepted the proviso to be moved by Lord Camperdown, they would retain the Lincolnshire custom and the other customs in the different counties. The noble Earl the President of the Board of Agriculture had received a deputation from the midland counties tenant right valuers and the tenant right valuers of the neighbouring counties, and when they asked whether or not the custom was preserved he only referred them to the Memorandum of the legal advisers of the Board of Agriculture. That Memorandum simply stated that two people might agree if they could, but if they could not, then the matter must go to arbitration. Therefore, he was not at all certain in his own mind, even if the proviso were accepted, that they would retain their present system and the legal rights they had had for generations.
§ EARL CARRINGTONUnfortunately I was not brought up in the law. Therefore, I dare not give a legal opinion myself, and must take the opinion of our legal advisers. I am absolutely assured that all the points that the noble Lord has put before the Committee will be met. At any rate I can say that that is the object of His Majesty's Government. We do not want to interfere with any custom. All we want to do is to cheapen and simplify the process of arbitration, and to raise the statusof the arbitrator. I think I can ease the noble Lord's mind about the single arbitrator's having to decide the whole question. The whole question may be brought before him, but if the two parties agree on every other question except one, I do not think even the most litigious person would wish to interfere with them. All he would have to arbitrate about would be the single question which it would be necessary to have decided. I believe the noble Lord 530 can rest perfectly assured that there is no intention, and there will be, I hope, no possibility of any of the customs referred to being interfered with. The whole system of arbitration will go on in the same way, save with the difference I have tried to point out. I hope Lord Heneage will be satisfied with that assurance.
§ THE DUKE OF NORTHUMBERLANDsaid this was so important a point that he hoped the noble Earl would excuse him for pressing it. The noble Earl said that the usual custom was to be preserved intact, but the custom, as he understood it from Lord Heneage's description, was two-fold—that two valuers were appointed, and that they appointed an umpire. Now, the umpire was done away with by the noble Earl's clause. Therefore, the clause, while not interfering with the custom so far as the appointment of valuers was concerned, did interfere with the custom in regard to the appointment of the umpire. If he was not right in that, he hoped the noble Earl would correct him. They were getting into a little confusion between the words umpire and arbitrator. As he understood, the noble Earl meant when he used the word "arbitrator" the same thing as Lord Heneage meant when he used the word "umpire." Lord Heneage's umpire was appointed by the parties without any expense and without any fuss, but the arbitrator under the noble Earl's clause would be appointed in the most expensive and operose way, and in his opinion to the detriment of the tenant.
§ EARL CARRINGTONThe custom would only be interfered with in this small point. The two old arbitrators or valuers if they do not agree cannot under this Bill appoint an umpire off their own bat; they can appoint an umpire if, and only if, they are authorised so to do by the landlord and the tenant respectively. That is the only difference between our proposal and the present custom.
§ LORD BELPERpointed out that if the agreement between the landlord and tenant was such as Lord Heneage 531 had mentioned, it was saved by the acceptance of Lord Camperdown's proviso to the effect that nothing in this section should interfere with or prevent any contract or agreement between the landlord and tenant for an outgoing or other valuation. It seemed to him that the case was entirely covered by the acceptance of this proviso.
§ Amendment, by leave, withdrawn.
VISCOUNT HILLmoved to delete from sub-section (2) of Clause 1 the words, "notwithstanding any agreement to the contrary, and whether the tenancy commenced before or after the passing of this Act," and to insert in their place the words, "unless the parties agree to appoint their own arbitrator or arbitrators according to present usage." He found himself much in the same position as Lord Heneage. Even with Lord Camperdown's proviso he could not see but that the clause did away with the old custom in this matter. It had been the custom in nearly every county in England for the outgoing and incoming tenant each to appoint his valuer independent of the landlord, and before these gentlemen entered upon their valuation they themselves appointed an umpire to be called in if necessary. This system had worked most satisfactorily, and he would be within the mark in saying that95 per cent. of tenant right valuations had been satisfactorily decided without resorting to the umpire. He wished to retain that part of the Agricultural Holdings Acts which gave an appeal to the Board of Agriculture should the two valuers not be able to decide upon a satisfactory umpire. As the old system had worked so well it was better to retain it. Under the clause as it stood there was considerable complication in the matter, and the appointment of an arbitrator by the Board of Agriculture would involve expense to both the outgoing and the incoming tenants. The Bill, instead of, as the President of the Board of Agriculture had declared, cheapening matters, would, to his mind, considerably add to the cost of valuation, and, even with Lord Camperdown's proviso, the present right of the tenants to appoint their own valuers would be done away with.
§ Amendment moved—
§ "In page 2, line 1, to leave out from the word 'shall' to the word 'be' in line 3, and insert the words 'unless the parties agree to appoint their own arbitrator or arbitrators according to present usage"—(Viscount Hill.)
§ *VISCOUNT ST. ALDWYNsaid he was quite certain that what the noble Viscount desired would be effected by Lord Camperdown's proviso; it was the same thing. He therefore hoped the noble Viscount would not press his Amendment.
§ Amendment, by leave, withdrawn.
§ Drafting Amendment agreed to.
§ EARL FORTESCUEmoved to amend sub-section (2) so that it would read that the arbitration should be determined "either" by a single arbitrator, etc. His object in inserting the word "either" was to enable people to avail themselves of the present practice, and to use Part II. of the Schedule to the Act of 1900 in the way they had been accustomed to for a great many years. Inconvenience would, he thought, be caused in many cases if this permission were not given.
§ Amendment moved—
§ In page 2, line 3, after the word 'determined' to insert the word "either"—[Earl Fortescue.)
§ EARL CARRINGTONI understand that my noble friend proposes that the clause should read in this way, that all questions shall be determined either by a single arbitrator, or by two arbitrators, and an umpire, in accordance with the provisions set out in Parts I. and II. of the second Schedule to the Agricultural Holdings Act. I hope the noble Earl will not press the Amendment. It might in some ways improve the existing arrangement, but it would perpetuate the dual system contained in the Act of 1900 which it is our declared object to simplify.
§ Amendment, by leave, withdrawn.
§ EARL CARRINGTONThe object of my next Amendment, which is really of a drafting nature, is to make provision as to the mode in which the amount awarded under any of the provisions of the Bill shall be recovered.
§ Amendment moved—
§ "In page 2, line 6, after '1900' to insert the words 'and any sum awarded by such arbitrator to be paid, shall be recoverable in manner provided by the Agricultural Holdings (England) Acts, 1883 to 1900, or the Agricultural Holdings (Scotland) Acts, 1883 to 1900, for the recovery of compensation".—(Earl Carrington.)
§ *VISCOUNT ST. ALDWYNsaid this was not merely a drafting Amendment. There was a point of substance in connection with it to which he would like to call the noble Earl's attention. In addition to compensation to be awarded to the tenant there might also be compensation in respect of a counterclaim by the landlord against the tenant, and he submitted that whatever facility was given to the tenant for recovering his compensation should also be given to the landlord. Obviously both parties should be on the same footing.
§ EARL CARRINGTONMy attention has not been drawn to that point. I will make a note of it.
§ On Question, Amendment agreed to.
THE EARL OF CAMPERDOWNthen submitted his proviso which the President of the Board of Agriculture had already signified his willingness to accept.
§ Amendment moved—
§ "In page 2, line 6, after '1900' to insert the words 'provided that nothing in this section shall interfere with or prevent any contract or agreement between the landlord and tenant for an outgoing or other valuation.'—(The Earl of Camperdown.)
§ EARL CARRINGTONI accept the Amendment.
§ On Question, Amendment agreed to.
§ *LORD KNARESBOROUGHmoved to insert at the end the following new sub-section—
(3) Any award made under this Act shall, on the application of either party, specify the amount awarded in respect of any particular improvement or improvements or matter or matters to which the award relates.He said that this Amendment was obviously necessary to carry out the intentions of the Legislature. This Bill 534 went much further than the Act of 1900, for it awarded compensation for damage by game and other incidents, so that it was necessary to add some words to the clause to bring it into line with the Act of 1900. Their Lordships would be unanimous in hoping that if the Bill became law it would work smoothly and cause as little friction and discomfort as possible. There was, however, nothing more likely to cause friction than any trouble with the arbitrators. He did not mean so much that they should necessarily be suspected of corruption or of leaning to the one side or to the other, but they might get into the way of giving slipshod decisions and guessing at a lump sum instead of carefully deciding on every point submitted to them. The arbitrators were entrusted with an arbitrary power, a power without appeal, of handing over to one man the money of another man. When a lump sum of money was awarded, they wanted to know exactly on account of what matters the arbitrator had awarded it, how much he had awarded for compensation to the tenant on each separate claim, and how much he had deducted for the counter-claim of the landlord. They wanted as much light as possible. Any one who had anything to do with arbitrations knew perfectly well that it was most difficult to get any light at all. Dolus latet in generalibuswas a very good maxim in these affairs. In this matter there was no assistance from the common law, while under the old system of choosing two arbitrators, and their choosing an umpire, they had a safeguard in the fact that in the terms of reference to the umpire they could stipulate for any particulars wished for, even as far as a detailed valuation. A further safeguard was that, as the umpire had to be agreed on by both parties, if it got known that an arbitrator would not give the amount of information which the parties concerned wished for he would get no employment as an arbitrator. This safeguard was now entirely swept away. The arbitrator would now look for his appointment to the Board of Agriculture, and he would look for his instructions to the Act, so that it was absolutely necessary that in passing the Bill their Lordships should make it clear what the intentions of the Legislature were.
§ Amendment moved—
§ "In page 2, line 6, after "1900,' to insert the following new sub-section:—(3) Any award made under this Act shall, on the application of either party, specify the amount awarded in respect of any particular improvement or improvements or matter or matters to which the award relates.—(Lord Knaresborough.)
§ EARL CARRINGTONI am very grateful to the noble Lord for the hope he has expressed that the Bill, if it should become law, should work smoothly. He has explained his Amendment so very clearly that I think it only remains for me to say that I am personally obliged to him for having brought it forward, and that I accept it in its entirety.
§ On Question, Amendment agreed to.
§ Moved, "That Clause 1, as amended, stand part of the Bill."—(Earl Carrington.)
§ THE DUKE OF NORTHUMBERLANDsaid that there was a point upon which he wished to have some information. This clause having abolished the elements that the valuer had to consider, he would like to know on what basis the valuer would proceed in assessing the value to the tenant of any improvements or any action he might have taken on the holding. He would put an extreme case By way of illustration. It was a case where a road was endangered by the sea. A tenant, through some action that he took, not very serious in character, had been able to save that road. Would the tenant be entitled to the value of the road? This was a case of the ordinary determination of a tenancy, not a case of disturbance. Was the tenant to be repaid the value of the improvement, or was he Merely to be repaid the expense to which Be had been put in taking the course that led to the improvement of the road? If the tenant were to receive more than his outlay, they would be giving to the tenant not that which he had a right to be compensated for, but something which was the landlord's. Although legally the landlord was responsible, primarily the charge fell on the incoming tenant.
§ EARL CARRINGTONI understand the noble Duke to ask me whether, in the 536 event of a tenant resisting the ravages of the sea, by which I suppose he means if he mended the bank and kept the sea back, he would be able to claim that he should be paid for the land he had saved. Curiously enough, I know a case of that kind within my own experience, It was not, however, a case of the sea, but of drains. There was on one occasion what in Scotland, I suppose, would be called "a heavy spate," and great anxiety was shown as to the safety of the banks of one of those large drains in Lincolnshire. One of my own tenants saw that the water was beginning to trickle over one of the banks, and if the water came over the bank in any quantity it would flood the fen, which was below the water level. This tenant of mine wisely placed his curt on the top of the bank and get a lot of stones and strengthened the bank. The result was that the bank broke on my neighbour's side, to his great discomfort and annoyance; but I never heard of a claim being made by that worthy tenant of mine that he should be compensated for having saved, not only his own farm, but the farms of other tenants from being flooded. I think the case cited by the noble Duke was rather an extreme one to take. No Amendments of any kind have been put down on the Paper in regard to such a point, and I hope, in the circumstances, the noble Duke will be satisfied with having raised it.
§ THE MARQUESS OF LONDONDERRYcomplained that in the interesting and amusing narrative of the noble Earl no attempt had been made to answer the noble Duke's question.
§ *EARL EGERTONpointed out that if a tenant carried out work in respect of roads or banks which he was not under contract to carry out he should be compensated by the landlord for the amount of work done, but he acquired no proprietary right in respect of the road itself.
§ THE DUKE OF NORTHUMBERLANDsaid the noble Earl the President of the Board of Agriculture had not answered in the least the question put to him. He thought, therefore, that perhaps the best course to take would be to move 537 on Report the addition of the following words at the end of the subsection—
and that such sum shall in no case exceed the fair value of the labour expended or the outlay incurred by the outgoing tenant.
§ Clause 1, as amended, agreed to.