Clause 2:—

HL Deb 13 December 1906 vol 167 cc537-50

EARL CARRINGTON

I have two drafting Amendments to this clause. The clause as it stands reads— Where a tenant has sustained damage to his crops from game that neither he nor anyone claiming under him other than the landlord has the lawful right to kill, he shall be entitled to compensation," etc. My Amendments would make the clause read— Where a tenant has sustained damage to his crops from game the right to kill and take which is vested neither in him nor in anyone claiming under him other than the landlord he shall," etc.

The Amendments are designed to make it clear that the tenant has a right to compensation for damage done by game during the close season.

Amendments moved—

"In page 2, line 8, to leave out the words 'that neither he nor" and to insert the words 'the right to kill and take which is vested neither in him nor in," and in line 9, to leave out the words 'has the lawful right to kill."—(Earl Carrington.)

On Question, Amendments agreed to.

LORD REDESDALE

moved an Amendment to provide that the compensation for damage done by game should be claimed from the person in whom the right to kill the game is vested. He said the Amendment was an exceedingly simple one. It did not affect the principle of the Bill, nor did it affect the principle of the clause. If the Amendment were accepted, the tenant would not be one penny poorer in any matter of compensation which the Bill might give him. The only thing he desired to do was to simplify the method by which he could obtain that compensation. The principle he desired to establish was a very just one. It was that the person who inflicted the damage should pay the compensation. He could not see why the landlord should be called in as middleman between his tenant and the person who had inflicted the damage. He knew he would be told that the tenant had only his landlord to look to. The tenant had in many matters besides this looked to his landlord in the past, and, as Lord St. Aldwyn had pointed out on the Second Reading, he had not looked in vain. On the other hand the landlord had received at the hands of his tenant great sympathy in many and various circumstances. It was an ideal relationship which at present existed between landlord and tenant, and anything which went to upset that good feeling would, to his mind, be disastrous to the tenant and inconvenient to the landlord. The Amendment simply desired to avoid friction and to simplify the method of obtaining compensation. If the landlord was to stand between the tenant and any other person, they would be creating new friction and new difficulty in country life. His opinion was that it would be as simple for a tenant to get his compensation direct from the man who had injured him as to obtain it by the intervention of the landlord. This intervention would raise ill-will between the landlord and the shooting tenant.

Amendment moved—

"In page 2, line 10, to leave out the words 'his landlord' and to insert the words 'person in whom the right to kill game is vested."—(Lord Redesdale.)

EARL CARRINGTON

The noble Lord has put his case very clearly, and I regret that I cannot accept the Amendment. The Amendment is that the tenant should recover from the shooting tenant. On the face of it that certainly sounds fair enough, but the difficulties would be very great in working. The principle embodied in the Bill is that he tenant should be entitled to claim from the landlord direct, and I will try and explain why. The noble Lord said that his plan would avoid friction and that he wished to simplify the procedure. Of course, we quite understand that; but I would ask him to consider the case of the shooting that I mentioned in my speech on the Second Reading, where, though the weight of pheasants was only 5,000 a year, in the announcement of the letting it was said that the property would easily carry 15,000 pheasants. Again, I tried to show the difficulties that a tenant would have in running all over the country to find the shooting tenant so as to recover from him. The shooting tenant would undoubtedly say, "I have taken this shooting and paid a large sum for it, and I ought to be clear of all liabilities." And I think very justly so, too. But there is another case. Suppose the shooting were let to a syndicate. What chance would the tenant have there? I know of a shooting that is let to a syndicate including an admiral, a parson, a doctor, a solicitor, and two other people. What earthly chance would the poor tenant have of bearding the admiral in his den, or of rushing after the other professional people? I do not think it would work at all. Since I have entered the House I have heard of a shooting tenant who went bankrupt, and the shooting was taken by someone else for ten days. What would be the position of the tenant in such a case? There is a great diversity of opinion among landlords on that point. I met a friend at the Cattle Show who pointed out that if these obligations were put on shooting tenants it might choke them off, or they would not pay such good rents. More-ever, the landlord can always make arrangements with the shooting tenant at the time when the shooting is let. I believe I shall have the Committee with me when I ask the noble Lord to withdraw the Amendment.

*VISCOUNT ST.ALDWYN

hoped his noble friend would not press the Amendment. He did not think that shooting tenants were quite such men of straw as the noble Earl opposite would make them out. Many of them, he thought, were better off than the landlords. He would point out that shootings were often let for very short terms. He had heard of a noble Lord who offered to let his shooting for five days. In such a case it would be almost impossible for a tenant to know to whom he was to look. He believed that the noble Earl opposite had promised that the date of the commencement of this clause should be postponed so as to enable fresh agreements to be made with regard to it, and if that was done he thought their Lordships would be well advised not to accept the Amendment.

LORD REDESDALE

could not see that the reasons given by the noble Earl for not accepting the Amendment were at all valid. He did not himself attach very much importance to the difficulty of recovering from syndicates. Shooting tenants did not run about the country any more than other people, and he had heard of quite as many cases of bankrupt landlords as of bankrupt shooting tenants. But as it was apparently the wish of the Committee, he would withdraw the Amendment.

Amendment, by leave, withdrawn.

EARL CARRINGTON

I move to amend Sub-section 2— The amount of compensation payable under this section shall, in default of agreement made after the damage has been suffered, be determined by arbitration, but no compensation shall be recoverable under this section unless notice in writing of intention to make a claim for compensation is given to the landlord,"— by omitting the words "intention to make a" and inserting the word "the.' Your Lordships will see that this is only a drafting Amendment.

Amendment moved—

"In page 2, line 19, to leave out the words 'intention to make a,' and to insert the word 'the."—(Earl Carrington).

THE EARL OF CAMPERDOWN

thought this was more than a mere drafting Amendment. It had to be taken in connection with Lord Carrington's Amendment which followed later on, to insert, after the word "landlord" the words "as soon as may be after the damage was observed by the tenant." As the sub-section would then appear it would read— The amount of compensation payable under this section shall, in default of agreement made after the damage has been suffered, be determined by arbitration, but no compensation shall be recoverable under this section unless notice in writing of the claim for compensation is given to the landlord as soon as may be after the damage was first observed by the tenant. What he suggested was that notice should be given to the landlord as soon as the tenant observed the damage being done, and before he made any claim at all. That was important. According to the Amendments to be moved by Earl Carrington the claim would be made at the same time as the landlord would be informed that the damage was occurring. He thought that a mistake. He suggested that these words should be inserted— unless notice in writing is given to the landlord forthwith upon the discovery of damage occurring, and unless notice in writing of the intention to make a claim for compensation is given to the landlord.

LORD HYLTON

said he had an Amendment on the paper to meet the very point Lord Camperdown had raised. The words he proposed to insert were— and unless notice of the damage has been given to the landlord as soon as it commenced. He thought their Lordships would recognise that when this Bill became law and a successful action had been carried through by one tenant, claims of this sort would arise all over the country. The point in question, therefore, was one of the most important in the clause. He hoped that his words, or words to that effect, would be inserted.

LORD HENEAGE

said that one of the greatest difficulties that would arise under this clause, which necessitated that the notice should be given as early as possible, was the enormous amount of damage done in the spring by wood pigeons and crows. If the notice was put off until the autumn it would be absolutely impossible to say whether the damage was done by the wood pigeons and rooks or by the pheasants.

EARL CARRINGTON

I think the case will be met by the later Amendment which I have on the Paper. It is in page 2, line 20, after the word "landlord," to insert the words "as soon as may be after the damage was first observed by the tenant." I placed this Amendment down to meet Lord St. Aldwyn's suggestion. It is designed to give effect to what is, I believe, the general view on both sides of the House, that the tenant should give notice to the landlord as soon as he discovers that damage by game is being done. Will those words satisfy the noble Lord?

THE EARL OF CAMPERDOWN dissented.

EARL CARRINGTON

Then I would ask the Committee to accept my Amendments provisionally, and allow me to consider the point between this and the Report stage.

THE DUKE OF SOMERSET

asked why the tenant should not be required to give information at once. The damage would be immediately observable. A tenant who did not go over his farm every day was a tenant he would not like to have on his land.

*VISCOUNT ST. ALDWYN

said that Lord Carrington had intimated his willingness to insert the words "as soon as may be after the damage was first observed by the tenant." Did not that meet the point raised?

THE EARL OF CAMPERDOWN

said notice of the damage was a thing by itself and ought to be given first. Then notice of the claim, if any, should be sent in. He wanted the two things to be separate.

EARL CARRINGTON

Will the noble Earl allow me to consider the point, and endeavour to meet his views if possible?

THE EARL OF CAMPERDOWN

Certainly; but in the meantime it would not be advisable to insert these words.

EARL CARRINGTON

They can be cut out afterwards, if necessary.

THE EARL OF DARTMOUTH

said that Lord Carrington would probably lose his Amendments if he insisted upon them now. He suggested that the Amendments should be postponed till the Report stage, when the noble Earl could bring up fresh words.

VISCOUNT ST. ALDWYN

urged the Committee to agree to the clause in the shape the Government desired to amend it, which was certainly better than the clause as it stood.

THE EARL OF CAMPERDOWN

did not think the clause as proposed to be amended would be better than the clause as it stood. If the Committee inserted the words proposed by Lord Carrington, and left the other part unsettled, they would be getting into a difficulty.

THE CHAIRMAN OF COMMITTEES

If the Committee accepts these Amendments, the Bill will be reprinted with the Government Amendments in, and it will then be open to noble Lords on Report to move Amendments if the clause does not meet their wishes.

THE EARL OF CAMPERDOWN

said if this was the wish of the Committee he would raise no objection. It should, however, be understood that they would expect the noble Earl himself to propose an Amendment on Report. On that understanding he would agree to the insertion of the Amendments now.

EARL CARRINGTON

I do not think I ought to be asked to give that undertaking. I will promise to give the best consideration I can to the point. After all, noble Lords opposite have the matter in their own hands, for any Amendment they move can be carried.

On Question, Amendment agreed to.

Amendment moved—

"In page 2, line 20, after the word 'landlord,' to insert the words' as soon as may be after the damage was first observed by the tenant and."—(Earl Carrington.)

On Question, Amendment agreed to.

Amendment moved—

"In page 2, line 22, after the word 'raised' to insert the words 'or where the crop is intended to be consumed without being reaped or raised, at least three weeks before the crop is begun to be consumed."—(Earl Carrington.)

On Question, Amendment agreed to.

Drafting Amendments agreed to.

LORD HYLTON

said his point had not been met by the Amendment which had just been accepted, and therefore he moved the insertion of the words "and unless notice of the damage has been given to the landlord as soon as it commenced." He regarded this as a perfectly clear provision, for unless words to this effect were inserted neither the landlord nor his agents would have any opportunity of preventing the very damage which might afterwards have to be dealt with under the clause. The words in his Amendment had been framed after consultation, and he was very disinclined not to take the sense of the Committee upon it.

Amendment moved—

"In page 2, line 26, after the word 'made,' to insert the words 'and unless notice of the damage has been given to the landlord as soon as it commenced."—(Lord Hylton.)

THE LORD PRIVY SEAL (The Marquess of Ripon)

Has the noble Lord considered the meaning of his Amendment? As it reads, the tenant would be barred from compensation unless he gave notice at the first moment that the damage began—that is to say, at the first moment that the first pheasant ate the first grain of corn. I really do not think that is an Amendment which we can accept.

THE DUKE OF NORTHUMBERLAND

agreed with the view taken by the noble Marquess. As he read the Amendment, if it could be proved that the tenant had not seen the first symptoms of damage the tenant would be debarred from claiming compensation. He did not think the provision in the Amendment was one which could be reasonably enacted.

*VISCOUNT ST. ALDWYN

expressed a hope that Lord Hylton would not press his Amendment. Already words had been agreed to that notice should be given "as soon as may be" after the damage was first observed by the tenant. He thought that met the case.

LORD HYLTON

That only relates to the claim for damages.

*VISCOUNT ST. ALDWYN

said that Lord Camperdown wished to raise this point on Report, and he thought they had better see the clause in the shape the Government proposed.

On Question, Amendment negatived.

THE DUKE OF NORTHUMBERLAND

had an Amendment to sub-section (3). This sub-section provided that— Where the landlord proves that, under a contract of tenancy made before the commencement of this Act, any compensation for damage by game is payable, or that in fixing the rent to be paid under such contract allowance in respect of such damage to an agreed amount was expressly made, the arbitrator shall, in assessing the compensation under this section make such deduction from the compensation which would otherwise be payable as may appear just. The noble Duke moved to vary the two first lines of the sub-section so that they would read— Where the landlord proves that, under a contract of tenancy, whether made before or after the commencement of this Act," etc. As the words at present stood there was some doubt whether the sub-section referred to the future. His Amendment would make it clear that in all future agreements the same arrangements might be made between landlord and tenant.

Amendment moved—

"In page 2, line 28, after the word 'tenancy,' to insert the word 'whether' and after the word 'before,' to insert the words for after."—(The Duke of Northumberland.)

EARL CARRINGTON

I am very glad to accept that Amendment. We think it a very good one.

On Question, Amendment agreed to.

*THE EARL OF PEMBROKE,

on behalf of the Earl of Powis, moved an Amendment to provide that the arbitrator, in assessing compensation for damage by game, should make deduction where the landlord proved that in fixing the rent an allowance in respect of such damage had been expressly made. The clause at present said where an allowance "to an agreed amount" had been made in fixing the rent. He moved to omit those words "to an agreed amount," because in many cases, while the farm was let at what was called a game rent, the amount of reduction from the full rent was never expressly mentioned, and consequently the amount of allowance for game damage was not an agreed amount. If these words were left in the sub-section a tenant might claim under this Act to be paid twice for any damage by game. These arrangements for allowances in the rent for damage by game were generally made in a friendly way and not expressed in the leases. Lord Powis had let a farm of 191 acres, the original rent of which was £180 a year, for £150 a year, in consideration of its being a game farm. There was a clause in that agreement, signed by the tenant, which ran as follows— It is acknowledged by the said…that the within-named rent has been fixed at a lower sum than the actual annual value of the land on the understanding that in the event of any damage being done by game the said…shall make no claim against the Earl of Powis for any damage so done. But in the case of farms which he (Lord Pembroke) treated on the same lines, the arrangements for allowance were not expressed in the agreements. He hoped his Amendment would be agreed to. He felt that the provision as it stood would be more harmful in many cases to the tenant than it ever would be to the landlord.

Amendment moved—

"In page 2, line 31, to leave out the words to an agreed amount."—(The Earl of Pembroke.)

EARL CARRINGTON

I readily acknowledge that there is a great deal to be said for the case which the noble Earl has made out. It certainly would be a monstrous thing if, after the landlord had made a reduction in rent on account of any damage to crops from game, a litigious tenant should take advantage of the absence of any direct proviso in the agreement, and make a claim under this section, contending that there was nothing in his agreement to show that the reduction he had received was in respect of game and game only. I cannot, however, go so far as the noble Earl and say that I am against the express amount allowed for game damage being stated. Noble lords must think a little of the protection of tenants on estates that are not so well managed as their own. Therefore we press the provision that in all future agreements of this character the express amount of allowance for game damage must be mentioned in the agreement. I am ready to go as far as this, that in existing cases the agreements should be taken as intended. But in all future cases I submit that it is imperative that the amount of rent reduction on account of game should be stated specifically.

*THE EARL OF PEMBROKE

Will the noble Earl move words to carry that out?

EARL CARRINGTON

If the Committee would permit me I would propose to move the following proviso to meet those cases— Provided that in the case of a contract of tenancy current at the commencement of this Act such a deduction as aforesaid shall be made whether the allowance was to an agreed amount or not, and whether the allowance was expressly made or not, and, for the purpose of this proviso, a tenancy from year to year shall be deemed to continue until the first day on which either the landlord or the tenant by giving notice could immediately after the commencement of this Act have caused the tenancy to determine. Although that is rather involved, as I am afraid many of these clauses are, I think the Committee will understand the spirit of the proviso. If, by any alteration of the words, I can make it clear that in all cases where the landlord has behaved in a gentlemanly and proper way, he is to be absolutely protected from paying twice, I shall be very pleased to make that alteration later. It must be understood that as soon as the tenancy becomes a fresh tenancy then the landlord must put into the agreement the express amount allowed for game damage.

THE EARL OF PEMBROKE

thought the words proposed by the noble Earl would meet the case, and suggested that they should be inserted in the Bill at this stage so that noble Lords could see them in print when the Bill was reprinted and judge of their effect.

LORD BURGHCLERE

thanked the President of the Board of Agriculture for having expressed his willingness to insert the proposed proviso, which, as he understood it, carried out the suggestion he ventured to make in the course of his observations on the Second Reading. He thought then, and he still thought, that there would be a certain amount of injustice if a tenant had secured a farm at a rent which had been reduced on account of the weight of game carried, and then claimed under this Act to be paid again for any damage by game. He understood that Earl Carrington's proviso met that point, and he was much obliged to him for drafting it.

THE EARL OF CAMPERDOWN

agreed that the words suggested by Earl Carrington met the case of fresh yearly tenancies, but they did not appear to meet the case of leases.

EARL CARRINGTON

That is just what the proviso does. All existing leases will be protected by the proviso. The only thing is that I ask the permission of the Committee to make it distinctly understood that when these leases are determined an express provision for game damage shall be put in.

*THE EARL OF LICHFIELD

asked whether it would be necessary under the proviso in the case of yearly tenancies to give notice to every tenant.

EARL CARRINGTON

I do not think that would be necessary.

THE EARL OF PEMBROKE then withdrew his Amendment.

Amendment, by leave, withdrawn.

EARL CARRINGTON

I now beg to move the insertion of the proviso which I read to the Committee a few moments ago.

Amendment moved—

"To insert the following proviso—'Provided that in the case of a contract of tenancy current at the commencement of this Act such a deduction as aforesaid shall be made whether the allowance was to an agreed amount or not, and whether the allowance was expressly made or not, and, for the purpose of this proviso, a tenancy from year to year shall be deemed to continue until the first day on which either the landlord or the tenant by giving notice could immediately after the commencement of this Act have caused the tenancy to determine."—(Earl Carrington.)

On Question, Amendment agreed to.

Drafting Amendments agreed to.

EARL CARRINGTON

I beg to move to amend Sub-section 4, so that it will read— Where the right to kill and take the game is vested in some person other than the landlord the landlord shall be entitled to be indemnified by such other person against all claims for compensation under this section. The insertion of the words "and take the" is really a drafting Amendment.

Amendment moved—

"In page 2, line 35, after the word 'kill, to insert the words 'and take the."—(Earl Carrington.)

*LORD ZOUCHE OF HARYNGWORTH

asked whether this Amendment did not rather confine the operation of the subsection to a shooting tenant only. A case might occur where a landlord owned a small property and did not have any game of his own upon it at all, but where damage was done to the tenant by the game belonging to a neighbouring owner. In that case the tenant would have to claim against his own landlord. Was it quite clear in the sub-section that in that case the landlord would be entitled to be indemnified by the other owner? It seemed to him that there was a considerable difference in the case of damage being done to a tenant by game which had nothing whatever to do with his landlord.

EARL CARRINGTON

This question of game coming from the property of a neighbouring owner is one of great difficulty. We have fully considered it, and on the whole we think it is the fairest way of dealing with it to make the landlord responsible for all the game that is on his property. Honestly, I do not see how any other way could be arrived at. Game, when on a man's estate, is his own property and he is responsible for what that game does.

THE EARL OF DENBIGH

said that if a tenant suffered damage from game coming from an adjoining property and then claimed compensation from his landlord, his landlord in turn could claim compensation from the adjoining landlord under the common law.

EARL CARRINGTON

That is so.

LORD BELPER

asked Earl Carrington to explain the meaning of his Amendment. It appeared to him that the words proposed to be inserted restricted the right of the landlord to recover from the shooting tenant.

EARL CARRINGTON

The words mean to kill with a gun and take with a trap or net game that he has a right to kill or take in any way. You can take partridges with a net and you would not kill them. I believe a very lucrative business is done among the crofters in Scotland by netting grouse.

LORD BELPER

expressed the hope that if this was the explanation the noble Earl would alter his Amendment to read "or take the" instead of "and take the."

EARL CARRINGTON

I agree.

Amendment, as amended, agreed to.

Drafting Amendment agreed to.

EARL CARRINGTON

The object of the next Amendment is to clear up any ambiguity about the meaning of the word "year."

Amendment moved—

"In page 2, line 41, after the word 'game,' to insert: 'The expression "year" means the calendar year or such other period of twelve months as may be agreed between the landlord and the tenant."—(Earl Carrington.)

THE EARL OF CAMPERDOWN

thought this was the wrong place to put in a definition of a word which applied to the whole Bill. It had no particular reference to this section, and therefore ought o be dealt with in the definition clause at the end.

EARL CARRINGTON

I cannot see any objection to putting it in the definition clause at the end of the Bill if the noble Earl desires.

Amendment, by leave, withdrawn.

Clause 2, as amended, agreed to.