Lords Sitting of 5 November 1908

RETURNS, REPORTS, ETC.

  TRADE REPORTS: ANNUAL SERIES.
  No. 4161. Bahrain Islands, 1907–1908.
  No. 4163. Russia (Budget Report for 1908).

  HISTORICAL MANUSCRIPTS (ROYAL COMMISSION).
  Report on Manuscripts in Various Collections, Vol. VI.: The Manuscripts of Miss M. Eyre Matcham, Captain H. V. Knox, Mrs. Wykeham-Martin, etc.
  Presented (by Command), and ordered to lie on the Table.

  UNIVERSITIES OF OXFORD AND CAMBRIDGE ACT, 1877.
  Statute made by the Governing Body of Christ Church, Oxford, on 25th June, 1908, amending Statute XVI., Clause 9, of the Statutes of the House. Statute made by the Governing Body of All Souls College, Oxford, on 4th July, 1908, and sealed on 11th July, 1908, altering and amending Statute III., Clause 7, of the Statutes of the College.
  Laid before the House (pursuant to Act), and to be printed. [No. 221.]

  LAW OF DISTRESS AMENDMENT BILL.
  Order of the Day, for the House being again put into Committee, read.
  LORD COURTNEY OF PENWITH: My Lords, in moving that the House do again resolve itself into Committee on this Bill, perhaps it might be convenient for me to recall how the case stands. It will be within the recollection of some of your Lordships that when the Bill was last in Committee a number of Amendments stood on the Paper in the name of the noble and learned Earl opposite, Lord Halsbury. Your Lordships agreed, on the Motion of the noble and learned Earl, to strike out important words which stood in the first part of Clause 1, but you did not proceed to put in the words which the noble and learned Earl
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  recommended for your acceptance, because at that moment I interposed and said that after the Vote which had been taken it might be desirable to consider whether it would be worth while to proceed further with the Bill. I, thereupon, moved that the House resume. It is, however, felt by the promoters that the Bill, even with the acceptance of the noble and learned Earl's Amendments, would still be worthy of being placed on the Statute-book, and I therefore desire to proceed with it. I shall, of course, be willing to accept the first Amendment standing in the name of the noble and learned Earl, which your Lordships have in effect approved by the Amendment to which you agreed on the former occasion.
  Moved, "That the House do now resolve itself into Committee."—(Lord Courtney of Penwith.)
  On Question, Motion agreed to.
  House in Committee accordingly.
  [The Earl of ONSLOW in the Chair.]
  Clause 1:
  THE EARL OF HALSBURYexplained that the Amendment to which the Committee agreed on the last occasion was in Clause 1, page 1, line 6, to leave out the words "any under-tenant, lodger, or other person not being the immediate tenant of such superior landlord." The Amendment which he now moved was really the complement of what the Committee then did, the object of omitting the words in (question being to insert those standing in his name on the Paper.
  Amendment moved—
  "In page 1, line 6, to insert the words '(a) Any under tenant liable to pay by equal instalments not less often than every actual or customary quarter of a year a rent which would return in any whole year the full annual value of the premises or of such part thereof as is comprised in the under tenancy; or (b) any lodger; or (e) any other person whatsoever not being a tenant of the premises or of any part thereof, and not having any beneficial interest in any lease, under-lease or tenancy of the premises or of any part thereof.—(The Earl of Halsbury.)
  THE LORD CHANCELLOR (Lord LOREBURN)asked whether his noble and learned friend meant to include all the words in the proposed Amendment. He understood that on the last occasion the noble and learned Earl stated that he did not press for the inclusion of the words "by equal instalments not less often than every actual or customary quarter of a year." Those words were unnecessary, as it could make no difference whether a man paid his rent half-yearly or quarterly. If the amendment of the law was good at all, it was surely unnecessary to depend upon the distinction whether the rent was paid twice a year or four times a year.
  THE EARL OF HALSBURYsaid his noble and learned friend was mistaken in thinking that he had expressed any acquiescence in the words in question being omitted. On the contrary, he regarded the words as important for the protection of the superior landlord.
  On Question, Amendment agreed to.
  Consequential Amendments agreed to.
  Clause, as amended, agreed to.
  Clause 2:
  Consequential Amendments agreed to.
  Clause, as amended, agreed to.
  Clause 3:
  Consequential Amendments agreed to.
  Clause, as amended, agreed to.
  Clause 4:
  THE EARL OF HALSBURYmoved the addition of words to provide that the Bill should not apply to any live stock to which Section 29 of the Agricultural Holdings Act, 1908, applied. He thought the purpose of this Amendment would be obvious.
  Amendment moved—
  "In page 3, line 11, after the word 'thereof' to insert the words 'nor to any live stock to which Section 29 of the Agricultural Holdings Act, 1908, applies.'"—(The Earl of Halsbury.)
  LORD COURTNEY OF PENWITHsaid that when the Bill was drafted the Agricultural Holdings Act, 1908, had not been passed, and therefore could not have been included. He accepted the Amendment.
  On Question, Amendment agreed to.
  LORD COURTNEY OF PENWITHexpressed his readiness to accept the Amendment standing in the name of Lord Avebury, and in the absence of his noble friend he would himself move it. The Amendment did not interfere with the principle of the Bill, but provided for circumstances under which the undertenant and the tenant were associated together, so that one might be reasonably supposed to be acquainted with the tenancy of the other.
  Amendment moved—
  "In page 3, line 11, after the word 'thereof,' to insert the following new subsection: '(2) (a) To goods of a partner of the immediate tenant; (b) to goods (not being goods of a lodger) upon premises where any trade or business is carried on in which both the immediate tenant and the under tenant have an interest; (c) to goods (not being goods of a lodger) on premises used as offices or warehouses where the owner of the goods neglects for one calendar month after notice (which shall be given in like manner as a notice to quit) to remove the goods and vacate the premises; (d) to goods belonging to and in the offices of any company or corporation on premises, the immediate tenant whereof is a director or officer, or in the employment of such company or corporation; (e) to goods of an under tenant (not being a lodger) who shall have become a tenant of premises without the consent of the superior landlord contrary to any lease or agreement under which the immediate tenant holds. Provided that it shall be competent for a stipendiary magistrate, or where there is no stipendiary magistrate, for two justices upon application by the under tenant or other person not being the immediate tenant of the superior landlord upon hearing the parties to determine whether any premises are in fact premises covered by (2) of this section.'"—(Lord Courtney of Penwith.)
  On Question, Amendment agreed to.
  Clause, as amended, agreed to.
  THE EARL OF HALSBURYmoved the insertion of a new clause, which, he thought, would commend itself to the noble Lord in charge of the Bill. It was only to provide that the new system of

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  distress should not apply to an under-tenancy which had been created contrary to the contract between the landlord and his immediate tenant.
  Amendment moved—
  "After Clause 4, to insert the following new clause: 5. This Act shall not apply to any under tenant, not being a lodger, where the under tenancy has been created in breach of any covenant or agreement in writing between the landlord and his immediate tenant, or where the under tenancy has been created contrary to the wish of the landlord in that behalf, oppressed in writing and delivered at the premises within a reasonable time after the circumstances have come, or with due diligence would have come, to his knowledge."—(The Earl of Halsbury.)
  On Question, Amendment agreed to.
  Clause 5:
  Consequential Amendments agreed to.
  Clause, as amended, agreed to.
  Clauses 6 and 7 agreed to.
  LORD COURTNEY OF PENWITHmoved the insertion of a new clause after Clause 7.
  Amendment moved—
  "After Clause 7, to insert the following new clause: 8. In this Act the words 'superior landlord' shall be deemed to include a landlord in cases where the goods seized are not those of an under tenant or lodger; and the words 'other person not being the immediate tenant of such superior landlord' shall be deemed to include a person having no interest in the land.'"—(Lord Courtney of Penwith.)
  THE LORD CHANCELLORexpressed the hope that Lord Courtney would, before the next stage, reconsider the wording of this proposed new clause. He reminded the Committee that the Bill had been completely redrafted in their Lordships' House, with the object of avoiding deeming this and deeming that and all the horrors associated with legislation by reference. Yet this new clause provided that the words "superior landlord" should be deemed to include a landlord in cases where the goods seized were not those of an under tenant or lodger, and that the words "other person not being the immediate tenant
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  of such superior landlord" should be deemed to include a person having no interest in the land. Surely this clause was a champion at deeming something to be that which it was not. He hoped the drafting would be reconsidered.
  THE EARL OF HALSBURYentirely concurred with the criticism of his noble and learned friend.
  LORD COURTNEY OF PENWITHsaid that the point now raised was different from that to which the attention of their Lordships was called on the former occasion. What was then complained of was legislation by reference, which made it necessary, in order to understand what was aimed at, to read one or more other Acts of Parliament. But, as the Bill now stood, there was no reference to any document outside the Bill itself. The proposed new clause which he had moved was due, he was afraid, to the imperfection of the English language, which made it impossible by the use of ordinary words to give full effect to what was designed. In order to do this it was necessary to enlarge in the way proposed the ordinary interpretation of the words landlord and tenant. He would, however, give attention to the matter before the next stage of the Bill.
  On Question, Amendment agreed to.
  Clause 8:
  LORD ATKINSONmoved an Amendment providing that the Bill should not apply to Ireland. He held that the operation and effect of the Bill would be wholly mischievous in Ireland in view of the great agrarian revolution that was going on there. The Bill was not confined to urban tenancies. If that were possible, it might not be so objectionable. The Bill extended to all tenancies, and, so far as he knew, was neither required nor desired in Ireland, and was unsuitable to the conditions in that country. The main effect of the Bill, as he understood it, was to confine the remedy of the landlord to distraint on the goods of the immediate tenant, and the whole value of distress for rent now was that

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  the landlord could seize any goods on the demised premises. The noble Lord in charge of the Bill had said on the previous occasion that the landlord had his right of re-entry. What would be said if a man who hired a horse and carriage, a motor or a piano, retorted to the person from whom he hired, on being applied to for payment, "My dear sir, I won't pay you; I have an objection to doing so, but I will hand you back your property, and you are very lucky to get it"? Did the noble Lord know what the right of reentry meant in Ireland? He had heard it said that getting a tenant out of possession in Ireland was more difficult than drawing a badger. A very large majority of the tenancies in Ireland were tenancies from year to year, and he was confident that noble Lords from Ireland would agree that there was no ejectment brought in that country that did not practically mean the loss of two years rent. Did the noble Lord in charge of the Bill regard that as a satisfactory remedy? A landlord, no more than any other man, could maintain himself and his family on the right of re-entry. What he wanted was his rent. In the greater part of Ireland the Bill would put a premium upon dishonesty, because, as a rule, the tenant had no capital that could be seized or got at save his stock, and if he chose to get rid of his stock, he could absolutely defy the landlord, at all events for eighteen months. But his real objection was that it discredited the whole process of distress on the goods on the premises. His noble and learned friend the Lord Chancellor had objected, on the former occasion, to what he described as "Robbing Peter to pay Paul;" but they might be perfectly certain that if Peter was saved from this plunder in the case of landlord and tenant, he would not submit to it in other matters. There was not at the present time a single public charge upon land as to which the Legislature had not thought it necessary to provide that the proceeds should be recoverable as rent by distress. By an Act of 6 & 7 Will. IV. this was provided as one of the means for the recovery of county cess; and when the Tithe Rent Charge Act was passed and tithes were commuted for a rent
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  charge, one of the modes of recovery was by distress in the same way as rent. The same thing applied in regard to a number of other public charges, and it was very peculiar that the various Acts in which this policy was recognised were passed by great Liberal statesmen — Lord Melbourne, Lord Russell and Mr. Gladstone. The purchase annuities under the Purchase of Land Act, for instance, were recoverable by distress, and it was most unwise and impolitic, when there were now outstanding loans for £50,000,000 or £60,000,000, and would be, he trusted, loans for, perhaps, £100,000,000 more, to deprive the State of one single remedy for the recovery of those annuities. Tenants in Ireland had paid the annuities with praiseworthy regularity. The State had suffered no loss. This by no means meant that occasionally these parsons had not been in default; but, happily, when they were in default no difficulty was experienced in selling them out and paying the arrears out of the proceeds. It would be well to retain the power to enable the officer of the State to seize the goods on a purchased farm; the purchasing tenant should be convinced that the payment of the annuity was inevitable. People were not so dull in Ireland that they would consent to be "robbed" to pay money to the English Exchequer, if they were not to be "robbed" to pay the landlord his rent. The rights of lodgers were protected under the Landlord and Tenant Act of 1860. The landlord could call upon a sub-tenant to pay his rent in discharge of the rent due from the immediate tenant; in addition to that, under Section 21, the sub-tenant could volunteer to pay to the head landlord, in discharge of the rent due to that head landlord by the immediate tenant, the rent which he (the sub-tenant) had contracted to pay to his immediate landlord. He had, therefore, ample power to protect himself, and that Act had been read to extend to any person who had lawful possession of the land. Therefore there was no difficulty in a sub-tenant ascertaining, on coming in, whether the rent of his landlord was due or not; and, if due, he could adopt the wise course of discharging it himself.

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  The Bill, therefore, was not called for in Ireland, and the only people it would serve were dishonest people.
  Amendment moved—
  "In page 3, line 27, after the word 'Scotland,' to insert the words' or Ireland.'"—(Lord Atkinson.)
  LORD COURTNEY OF PENWITHconfessed he did not feel competent to follow the noble and learned Lord over his wide field of controversy. He regretted that it should be necessary to make any exceptions, but recognised that circumstances might require such exceptions in Ireland. Perhaps the noble and learned Lord would be content with the Amendment of which Lord Clonbrock had given notice, to the effect that—
  "Nothing in this Act contained shall affect the law of distress in Ireland in relation to farming implements, crops, horses, cattle, sheep, or live stock of any description."
  That Amendment would cut out ordinary agricultural tenancies. Another reason why Ireland should not be cut out of the Bill altogether was that the Lodgers Protection Act, although repealed by this Bill, would, if Ireland were exempted from this Bill, have to remain on the Statute-book because of its application to Ireland, and for that reason alone. But if the noble and learned Lord would be satisfied with Lord Clonbrock's Amendment, the Lodgers Act could be completely repealed.
  LORD ATKINSONdid not think the words of Lord Clonbrock's Amendment adequate. That Amendment did not confine the Bill to urban holdings. If agricultural holdings were placed outside the purview of the Bill, many of his objections would not apply.
  THE LORD CHANCELLORallowed that there were ample precedents for exceptional treatment of Ireland and suggested that the form of words should be deferred to the Report stage. When on a former occasion he said, "You should not rob Peter to pay Paul," it might be he was enunciating a doctrine that might be used in Ireland in the interests of disorder, but they had travelled a long way if a proposition justified by the Decalogue would have
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  such effect. He adhered to the general doctrine that one person's goods should not be taken to satisfy the debts of another unless wrong was done by the person whose property was taken. The policy he had advocated and which involved a departure from existing law had not in its entirety found favour with their Lordships, but he desired to dissociate himself from the idea that he in any way wished to prevent the recovery of a just debt by one man from another; but the recovery should not be at the expense of a third person.
  *THE MARQUESS OF LANSDOWNE: My Lords, I am glad to notice that the noble Lord in charge of the Bill is inclined to meet my noble and learned friend behind me, to some extent, at all events, on this point; and if we are to choose between the Amendment which stands in the name of Lord Clonbrock and that which stands in the name of my noble and learned friend behind me, I have no objection whatever to reserve judgment until the further stage of the Bill. But I hope noble Lords opposite will understand that this is a point to which we attach great importance. The noble and learned Lord the Lord Chancellor admitted, a moment ago, that we were constantly in the habit of dealing with Ireland in a different way from other parts of the United Kingdom. That is very true. Only last night, as your Lordships will remember, it was proposed, in the measure we were then discussing, that the age up to which children should have a certain prohibition placed upon them should be different in Ireland from the English limit. But in this case there are very special reasons why we should deal differently with Ireland. The Irish land system, as we all know, is entirely different from the English land system; and, judging from announcements which have been made elsewhere, we are to have a fresh instalment of Irish land legislation within a few weeks. Surely such a moment is not well chosen for introducing, by a side wind, a fresh change in the law relating to the recovery of rent. This Bill, in the opinion of all who are competent to express an opinion, would lend itself readily to a kind of fraud which is very easily perpetrated in Ireland. It is

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  notorious that broken-down tenants in that country resort to this very expedient of making away with their cattle or exchanging them with their neighbours in order to evade the law. I ask your Lordships further to remember this. In other parts of the United Kingdom a landlord has the means of getting rid of a broken-down tenant or a hopelessly bad farmer. My noble friend the President of the Board of Agriculture will remember that a few days ago one of his Commissioners published a report in regard to small holdings, in which he dwelt upon the extreme necessity of selecting carefully the tenants who were to be entrusted with small holdings. We, in Ireland, have no power to select our tenants. We have to make the best we can of the tenants we have, and we are powerless to prevent a broken-down and dishonest tenant from establishing himself on his farm and deliberately defrauding his landlord. There is, therefore, a very strong case indeed for dealing specially with Ireland. My noble friend has shown conclusively that in this case not only rent, but county cess, tithe-rent charge, and poor rates, and even the purchase annuities under the Land Act of 1903, will be made infinitely more difficult to recover if the Bill is passed in its present form. I therefore hope that your Lordships will, on Report, insert, in one form or another, words which will prevent legislation of which advantage could be taken in Ireland for the purpose of defrauding those who are recovering either rent or public charges of any kind.
  LORD ATKINSONintimated his willingness to withdraw his Amendment until the Report stage. What they really wanted, beyond anything else, was to exclude agricultural holdings.
  Amendment, by leave, withdrawn.
  Standing Committee negatived.
  Bill to be printed as amended. [No. 222.]

  LEGISLATION BY REFERENCE.
  THE EARL OF CAMPERDOWN: My Lords, I rise to ask whether the Government
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  will, during the present session, cause a full explanatory statement to be circulated in regard to the effect of the clauses of any Bill which contains references to Acts of Parliament. On 18th June I ventured to call your Lordships' attention to the practice of legislation by reference, and to the troublesome and mischievous consequences of that practice to all whose fate it is to read Bills drawn in that manner. The House appeared to agree with me, and the noble and learned Lord on the Woolsack was so good as to say that if I would give him a few days to consider the matter he would see whether a joint Committee of the two Houses might be appointed for the purpose of considering the question. Nothing has been done since then. I do not in any way complain, because I know that His Majesty's Government have been very much occupied in a great many other ways. But, at the same time, we have to consider what remains of the present session. What is before us in the present session I wish I knew; and I am sure we shall be very much obliged to the noble Earl who leads the House if he will take some early opportunity of informing us what Bills we may expect. In the meantime I would say this, that if the Government propose to bring Bills to this House which contain a great deal of reference to other Acts of Parliament, I hope they will print, not merely the sort of memorandum usually attached to a Bill, but a full explanatory statement of the effect of the clauses upon existing legislation. I do not know whether the Town Planning Bill is likely to reach us, but if, by any chance, it should come up to your Lordships' House, I am sure it would take your Lordships a much longer time than remains between now and Christmas to understand it without some such explanatory statement. I therefore venture to ask the Question standing in my name.
  THE LORD CHANCELLOR: My Lords, I can assure the noble Earl that His Majesty's Government will do their best to give effect to his suggestion, especially in the case of Government, Bills. There are at times, of course, references to Acts of Parliament which explain themselves, and also references to well-known provisions. I do not suppose

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  that the noble Earl regards it as necessary to deal with those in the way proposed.
  THE EARL OF CAMPERDOWN: Hear, hear.
  THE LORD CHANCELLOR: I understand that what the noble Earl wants is elucidation and light with regard to the effect of important clauses. We will do our best to comply with his request.

  BUSINESS OF THE HOUSE.
  THE LORD PRIVY SEAL AND SECRETARY OF STATE FOR THE COLONIES (The Earl of CREWE): My Lords, it has been found, I am told, impossible to take the Report stage of the Children Bill on Monday, owing, I suppose, to some difficulties which have been experienced with regard to producing at so early a date the Amendments which were suggested. That leaves us without any business on the Paper for Monday. I think, therefore it would probably suit the convenience of your Lordships if the House were to be adjourned until Tuesday.
  Moved, "That the House do adjourn until Tuesday except for judicial business."—(The Earl of Crewe.)
  On Question, Motion agreed to.
  House adjourned at twenty-five minutes past Five o'clock to Monday next, Eleven o'clock.