§ Read 3a (according to Order), with the Amendments.
§ THE SECRETARY FOR SCOTLAND (LORD PENTLAND)
I have an amendment to move to Clause 4. It is a consequential amendment, but it is not on the Paper—
LORD BALFOUR OF BURLEIGH
It is contrary to the Standing Orders to move on Third Reading an Amendment which is not on the Paper.
§ LORD PENTLAND
I understand it is contrary to usage; but perhaps, by the leave of the House, it may be done in this case.
§ LORD PENTLAND
It is in Clause 4, page 5, line 23, to leave out the word "Board," and insert the words "Secretary for Scotland." I may say that I have intimated this and the other Amendments to the other side. I can explain to the noble Marquess what it means. It has reference simply to the appointment of the Secretary to the Board of Agriculture. The appointment as it stands now in the clause lies with the Board. It ought to be with the Secretary for Scotland.
LORD BALFOUR OF BURLEIGH
I want to know why this cannot be done in another place. If we once begin to infringe the Standing Orders it makes a precedent, and I think there have been precedents created in the last few days. I stand on the rights of the House.
§ THE FIRST COMMISSIONER OF WORKS (EARL BEAUCHAMP)
My noble friend the Secretary for Scotland has already spoken, and cannot speak again without the leave of the House. May I say that I understand this is not against the Standing Orders? It may be against custom and usage, but it is not against the Standing Orders to propose an Amendment of this kind. Of course, in matters of this nature we are always anxious to work as far as possible in harmony with noble Lords opposite, and I hope we may be able to come to some joint agreement on the subject.
Clause 4, page 5, line 23, leave out ("Board") and insert ("Secretary for Scotland").—(Lard Pentland.)
§ On Question, Amendment agreed to.1093
§ Clause 7:
§ Powers to facilitate the constitution of new holdings.
§ 7.—(1) It shall be lawful for the landlord of any land and any other person to agree that in respect of such land such person may apply to the Land Court to be registered as a new holder under this Act, and such person may thereupon apply accordingly, and subject to the provisions of this Act may be so registered.
§ (2) It shall be the duty of the Commissioner for Small Holdings to report from time to time to the Board after due inquiry what demand for small holdings exists in any district, and after consultation (where practicable) with the landlord or landlords what land (if any) is available to meet that demand, without causing undue displacement of farm servants presently employed on or about such land, under what conditions such land is cultivated, and what employment it affords.
§ (3) Where the Commissioner for Small Holdings is satisfied that there is a demand for small holdings and that suitable land exists it shall be his duty to negotiate with the landlords of such land with a view to the adjustment of a scheme for the registration by agreement of any one or more new holders in respect of such land.
§ (4) Failing agreement, such land may, otherwise than by agreement, be made available for the registration of new holders in the manner and subject to the conditions herein-after prescribed.
§ (5) In proceeding under this section, the Board shall take steps to ascertain what land is falling or is about to fall out of lease where the present tenant is not an offerer, and thall preferably select such land (if otherwise suitable) for the constitution of new holdings otherwise than by agreement.
§ (6) Where a new holder is registered under this section by agreement, the rent agreed between the landlord and the new holder shall not, if the same shall have been agreed upon for a specified period, be altered by the Land Court during such period, and shall not in any case be altered by the Land Court for a period of seven years from the term at which it first becomes payable.
§ (7) Where, with a view to, or as incidental to, the registration of a new holder or holders in respect of any land, whether by agreement or otherwise, the Board are of opinion, upon consideration of a report by the Commissioner for Small Holdings, that assistance should be provided for the purpose of dividing, fencing, or otherwise preparing or adapting the land, making Occupation roads, or executing other works, such as works for the provision of drainage or water supply, or erecting or adapting a dwelling-house or dwelling-houses or other buildings, or for any similar purpose, the Board may provide such assistance by way of loan or (except as regards dwelling-houses or other buildings) by way of gift, and subject to such conditions as they may prescribe. Conditions so prescribed and the provisions for their enforcement or for the case of their violation shall be as effectual as if they were contained in this Act.
§ (8) Where the Board are of opinion that damage or injury will be done to any tenant in respect that the land forms part or the whole of his tenancy, they shall pay compensation as may be agreed between the Board and such tenant.1094
§ (9) Where the Commissioner for Small Holdings reports that the landlord refuses to negotiate, or where, after submitting to the landlord a scheme for the constitution of one or more new holdings on the land, he reports that no agreement can be reached, it shall be lawful for the Board, after due notice and after hearing any party who desires to be heard, to intimate to the landlord and to other parties concerned that it is in the public interest that one or more new holdings should be constituted on the land in accordance with the said scheme, and that they propose to apply to the Land Court to make an order or orders for the constitution of one or more new holdings on the land in accordance with such scheme, to be occupied by new holders, at a fair rent and upon such terms and conditions not inconsistent with the Landholders Acts as the Land Court consider just; and thereafter to apply accordingly.
§ (10) Before snaking such an order, the Land Court shall give all parties having a right or interest in the land an opportunity of being heard.
§ (11) The Land Court shall thereafter determine, with due regard to the provisions of the Landholders Acts, and by order or orders declare—
- (a) In respect of what land, if any, specified in the scheme, one or more holdings for new holders may respectively be constituted, and up to what date the power to constitute them otherwise than by agreement may be exercised;
- (b) What is the fair rent for each new holding;
- (c) What land, if any, specified in the scheme is to be excluded therefrom; and
- (d) Whatever else may be necessary for the purpose of malting the scheme effective and of adjusting the rights of all parties interested in or affected by the proceedings:
§ Provided that, where the Land Court are of opinion that damage or injury will be done to the letting value of the land to be occupied by a new holder or new holders, or of any farm of which such land forms part, or to any tenant in respect that the land forms part or the whole of his tenancy, or to any landlord either in respect of an obligation to take over sheep stock at a valuation or in respect of any depreciation in the value of the estate of which the land forms part in consequence id and directly attributable to the constitution of the new holding or holdings as proposed, they shall require the Board, in the event of the scheme being proceeded with, to pay compensation to such amount as the Land Court determine after giving parties an opportunity of being hearth and, if they so desire, of leading evidence in the matter: Provided always that it shall be competent for any person aggrieved by the determination of the Land Court, if the amount in dispute exceeds four hundred pounds, to require the Land Court to state and sign the case upon which the question arose, setting forth the evidence, together with the determination thereon, and to transmit such case for the decision of either division of the Court of Session, subject to such regulations as may be prescribed by Act of Sederunt, and such decision shall be final.
§ (12) In or after making such an order, the Land Court (without prejudice to their other powers) may do, provide, or decide anything incidental to or consequential on such an order as if it were an order under section twelve of the Act of 1886, and may, if they think fit, provide 1095 for the incorporation with the order, subject to the necessary adaptations, of any provisions of the Lands Clauses Acts which appear to them requisite for carrying the order into effect.
§ (13) Upon such an order providing for the constitution of one or more new holdings on any land being issued, the Board may proceed to make it effective by entering on the land, carrying out works, and otherwise as may be required (due compensation to such amount as may be agreed or as, in case of dispute, may be determined by the Land Court being made for surface damage) and may negotiate with one or more duly qualified applicants with a view to their registration as new holders in respect of the land.
§ (14) A new holder shall not be duly qualified for registration otherwise than by agreement who does not satisfy the Board as to his ability to fulfil the obligations incumbent on him.
§ (15) The Board shall give reasonable consideration to objections stated by a landlord to any applicant for a new holding, and ceteris paribus shall give a preference to applicants preferred by the landlord.
§ (16) Except by agreement, a new holder shall not be registered—
- (a) in respect of any land being or forming part of a farm not exceeding one hundred and fifty acres occupied by a person who has no personal interest in any other farm, or in the ease of a farm so occupied which exceeds one hundred and fifty acres but is wholly or mainly pastoral, not exceeding an annual value as entered in the valuation roll of eighty pounds: Provided that nothing herein contained shall operate to prevent the registration otherwise than by agreement of two or more new holders in respect of the whole of such farm, not being a farm wholly or mainly pastoral, where no other land is available in the neighbourhood of any existing village or township; or
- (b) in respect of any land being or forming part of a farm occupied subject to a lease which was in force at Whitsunday nineteen hundred and eleven, so long as the lease remains in force.
§ (17) All parties being possessed of lands or any right or interest therein who under the Lands Clauses Acts have power on behalf of themselves or of others to convey and dispose of such lands, or of such rights therein for the purposes mentioned in those Acts, shall have the like power to enter into ally agreement or give any consent for the purposes of this section.
§ (18) Notwithstanding anything contained in the Congested Districts (Scotland) Act, 1897, the expression "landlord" in this section includes the Board in respect of any land purchased under that Act and transferred to the Board under the provisions of this Act.
§ (19) Any member of the Land Court, or the Board, or any person authorised in writing by the Land Court or by the Board, may for the purposes of the Landholders Acts enter upon and inspect any lands or buildings at all reasonable hours on any lawful day after due notice has been given to the owner and occupier of such lands or buildings.1096
THE EARL OF CAMPERDOWN moved to omit from subsection (11) the words—
the Land Court are of opinion that damage or injury will be done to the letting value of the land to be occupied by a new holder or new holders, or of any farm of which such land forms part, or to any tenant in respect that the land forms part or the whole of his tenancy, or to any landlord either in respect of an obligation to take over sheep stock at a valuation or in respect of any depreciation in the value of the estate of which the land forms part in consequence of and directly attributable to the constitution of the new holding or holdings as proposed, they shall require the Board, in the event of the scheme being proceeded with, to pay compensation to such amount as the Land Court determine after giving parties an opportunity of being heard and, if they so desire, of leading evidence in the matter: Provided always that it shall be competent for any person aggrieved by the determination of the Land Court, if the amount in dispute exceeds four hundred pounds, to require the Land Court to state and sign the ease upon which the question arose, setting forth the evidence, together with the determination thereon, and to transmit such case for the decision of either division of the Court of Session, subject to such regulations as may be prescribed by Act of Sederunt, and such decision shall be final.
and to insert in their place the words—
a landlord claims to be entitled to compensation in respect of any damage or injury to be done to the letting value of the land to be occupied by a new holder or new holders or of any farm of which such land forms part, or in respect of an obligation to take over sheep stock at a valuation or in respect of any depreciation in the value of the estate or which the land forms part in consequence of and directly attributable to the constitution of the new holding or holdings as proposed, or where a tenant claims to be entitled to compensation in respect that the land forms part or the whole of his tenancy, if the landlord or the tenant and the Board fail to agree as to the amount and time and mode of payment of the compensation, the difference shall be settled by arbitration in accordance with the provisions of the Second Schedule to the Agricultural Holdings (Scotland) Act, 1908, with the substitution of the Lord President of the Court of Session for the Board wherever occurring therein.
§ The noble Earl said: I have taken the very unusual course of proposing at this late stage of the Bill an Amendment on my own Amendment which your Lordships accepted when we were in Committee. Your Lordships will remember that on this side of the House we have maintained all along, and we are still of the opinion, that the Land Court is not a body well suited, indeed it is not suited at all, to determine whether any damage has been done in consequence of the action taken, and certainly not to determine what the amount of that damage, if there be damage, 1097 is to be. We insisted that there must be an appeal from this Court, and with that view I proposed an Amendment, which your Lordships accepted in the Committee stage, to give an appeal to the Court of Session. An appeal, of course, means two hearings—the first hearing before the original body, and the second hearing before the Court of Appeal. We were well aware that this second hearing would involve a certain amount of delay and expense, and it was for that reason, and for that reason alone, that in my Amendment I suggested that smaller questions of damage could be left to the Land Court up to £400, and that anything in excess of that must be open to appeal. The Government objected to that Amendment, and I suppose I am not divulging a secret when I say that representations were made to us to see whether we could not suggest an alternative to that course. Not merely in regard to this Bill but other Bills affecting Scotland we have endeavoured to do our best to meet the wishes of the Government as far as we possibly could, and therefore in this case we suggest the alternative which now appears in my name on the Paper, and which proposes an entirely different course from that in the Bill.
§ Our proposal is to take away questions of compensation from the Land Court altogether, and place them in the hands of an arbiter to be appointed by the President of the Court of Session. This Amendment was framed for the purpose of meeting the objections of the Government. The first objection of the Government, as I understand, was that they were opposed to any law Court or other holy revising the decisions of the Land Court. In the next place, they objected to my former Amendment because they said that the Court of Session was not accustomed to deal with these cases, and they did not think that it was an advisable Court to refer the matter to, and they took further objections on the ground of the amount of delay and expense.
§ My present proposal seems to meet all these objections. It proposes an entirely different course of proceeding. It removes from the Land Court all questions relating to whether damage has been done, or how much damage has been done, and it places those questions in the hands of a single arbiter, to be appointed by the Lord 1098 President of the Court of Session. It is not a case of appeal at all, because an appeal means two hearings. This is a simple proceeding, and involves one hearing and one hearing only. It does not override in any way the Land Court, because the Land Court would not have the question of compensation before it. It is a cheap way and an expeditions way, and as far as I am able to judge it meets all the objections which were raised to my former Amendment by the Government.
§ I do not think I need trouble you by saying any more with regard to my Amendment. The details are really all reprinted, or for the most part re-printed, from the subsection as it previously stood in the Bill. But Lord Pentland proposes an Amendment in lien of mine, which I am not going to discuss in detail. I will merely take the substance of this Amendment, which is very much the same as mine, but with one very important difference. What the noble Lord proposes is that in all eases up to £500 these questions shall be decided by the Land Court, and that in cases which exceed £500 the person desiring to petition should have his choice as to whether he would appeal to the Land Court or appeal to an arbiter appointed by the Lord Ordinary. The Government will naturally say to me, "Why do you, having accepted the principle up to £400 of questions to be settled by the Land Court, object on this occasion to questions, which we will say are nominal, being settled by the Land Court?" My answer is perfectly simple. The two cases stand on an entirely different footing. The first case is a case of appeal. It is a case of a second hearing. We were anxious to save expense, and it was for that reason and not because we desired to place the matter in the hands of the Land Court that we said, "In these circumstances we will make this proposal, that up to a certain amount the matter shall be decided by the Land Court." But this new proposal of mine, and of the noble Lord's, too, is not a case of a second hearing. It is simply setting up one tribunal to settle once and for all these questions of compensation. When you set up this tribunal, all the reasons for making a distinction between large and small cases of compensation at once disappear. I have endeavoured to explain to your Lordships as shortly and as clearly as I can the difference between the two Amendments. 1099 In the one case it is a question of a double hearing, and for that reason no doubt it might be desirable to avoid unnecessary delay and expense. In this case it is a question of a single hearing, and therefore I cannot see any reason whatever for drawing any distinction between cases of large or of small damages. I move my amendment.
Clause 7, page 9, line 22, leave out from ("where") to the end of line 43 and insert ("a landlord claims to be entitled to compensation in respect of any damage or injury to be done to the letting value of the land to be occupied by a new holder or new holders or of any farm of which such land forms part, or in respect of an obligation to take over sheep stock at a valuation or in respect of any depreciation in the value of the estate or which the land forms part in consequence of and directly attributable to the constitution of the new holding or holdings as proposed, or where a tenant claims to be entitled to compensation in respect that the land forms part or the whole of his tenancy, if the landlord or the tenant and the Board fail to agree as to the amount and time and mode of payment of the compensation, the difference shall be settled by arbitration in accordance with the provisions of the Second Schedule to the Agricultural Holdings (Scotland) Act, 1908, with the substitution of the Lord President of the Court of Session for the Board wherever occurring therein").—(The Earl of Camperdown.)
§ LORD PENTLAND
The noble Earl has stated, I think accurately, the course that has been followed in regard to these Amendments; and if you will look at the Amendment which I have put down on behalf of the Government your Lordships will see that it approximates very closely to that proposed by the noble Earl. It has the differences which he points out and it has also the special difference of leaving the alternative open to the litigant to take either course he wishes. I do not intend to argue the matter, but I would appeal to your Lordships. We have, I think, shown a bona fides in this matter and a desire to meet the wishes of the Opposition, and if there are any details in the Amendment I have put on the Paper in which I can further approximate to the views which the majority of your Lordships hold in this matter, I shall be very glad to do my best to meet them.
§ THE MARQUESS OF LANSDOWNE
The point raised in the Amendments on the 1100 Paper is a highly controversial one, and I one with regard to which we feel very strongly on this side of the House. I cannot nevertheless help hoping, after carefully comparing the two Amendments, that they afford the material for a satisfactory arrangement between the two sides of the House. Our point of departure has throughout been our strong objection to allowing the Land Court an absolutely free hand to deal with these questions of compensation. The Land Court is in this position. It can take land either from the owner of the land or the occupier of the land, and it can distribute that land to other persons; it can fix the rent that these other persons are to pay, and under the Bill as it originally stood the Court was able to fix the amount of compensation to the dispossessed party. In our view that was highly improper. It did not seem right that a newly-created department of this kind should have both the power of dealing administratively with these questions and also of deciding judicially what amount of compensation should be paid to any one aggrieved. To meet that feeling, the noble Earl, Lord Camperdown, proposed an Amendment which the House accepted. Under that Amendment, in all cases where a claim exceeded the sum of £400 there was to be an appeal from the Land Court to the Court of Session. We understood that His Majesty's Government entertained a very strong objection to that proposal. They objected to the Land Court being overridden by the Court of Session, and they also suggested that the procedure proposed by the noble Earl involved unnecessary expense to the litigants. Thereupon the noble Earl has put this alternative proposal on the Paper, and I must say I think he has made a very fair attempt to meet the points raised by the Government.
The noble Earl proposes that this question of compensation should be taken out of the hands of the Land Court and handed over to a process of arbitration with which we are all familiar. Now, as my noble friend very forcibly urged, this Amendment does really meet the point raised by the Government, because instead of having two hearings and two decisions you have under his plan only one decision and one set of proceedings. I understand that the noble Lord the Secretary for Scotland does not quite like that proposal, and he meets it by an alternative which I 1101 think to a great extent does meet the requirements of the noble Earl. I understand that what Lord Pentland proposes is this, that in cases where a claim amounts to a sum exceeding £500, either the owner or the occupier should be placed in a position of being able to ask that the matter shall be disposed of, not by the Land Court, but by a process of arbitration, and the decision has to be given by an arbitrator appointed by the Lord Ordinary. I suggest to Lord Camperdown that he might entertain this proposal. Personally I prefer the proposal of the noble Earl. It seems to me the simplest and the most logical, but in cases of this kind the two sides of the House ought to make an endeavour to meet one another, and I think it is, perhaps, fair for noble Lords opposite to insist to some extent upon the fact that the noble Earl is in a way committed to the idea that cases of moderate amounts might be left to the discretion of the Land Court.
I should like to add that if we did accept the Amendment of the noble Lord opposite as an alternative, there are two or three points in it which might very well be reconsidered. For example, under the Amendment a landlord or tenant is required to intimate that he desires to go to arbitration instead of having his case dealt with by the Land Court within seven days after the issue of the order. That seems to me to be a very unfair and drastic proposal. Take the case of a large tenant farmer who finds himself suddenly threatened with the deprivation of a considerable part of his holding. He, of course, will want time to consult his friends and advisers, and he very likely will want to call in a valuer. A period of seven days seems to me to be altogether unreasonable. I very much hope that the noble Lord will be able to tell us that if we take his Amendment he will be in a position to give us a longer period than seven days. Then I cannot see, if we are to accept his Amendment in principle, why the limit should be fixed so high as £500. The limit of £500 is very high, and I should have thought that a much lower minimum might have been fixed.
There is another suggestion I should like to make with reference to the words in the last seven or eight lines at the end 1102 of the last paragraph on page 2 of the printed Amendments. Under the Amendment as it now stands a scheme for new holdings might be put forward by the Land Court, and that scheme might be proceeded with through all its stages. The award or order might be made, and then at the last moment the Land Court would be able to drop the whole thing. It might find that the expense was prohibitory or something of that kind, and it might decide that the scheme should not be proceeded with. In a case of that kind I think words ought to be inserted with the object of recouping any of the parties who have been put to expense in consequence of the action of the Land Court, at any rate their out-of-pocket expenses. I think the noble Lord will find that the English Small Holdings Act contains a provision designed to cover this particular point, a provision in which it is expressly laid down that where schemes have been proposed in this way and then dropped by the responsible departments the parties should be indemnified for any expense to which they may have been put. I hope the noble Lord the Secretary for Scotland will kindly consider these points, and if he is able to meet us in regard to them I would advise my noble friend Lord Camperdown to accept the alternative suggested to him as being one which, not completely, perhaps, but at any rate to a material extent, satisfies the requirements he has laid down.
§ LORD CLINTON
My noble friend Lord Camperdown has pointed out that the object of his Amendment is to meet as far as possible the objection of the noble Lord in charge of the Bill to our former suggestion of an appeal. The noble Lord has told us, and I am grateful to him for doing so, that in principle he accepts this scheme of arbitration, but I should like to point out that while he accepts it in principle he very largely destroys it by insisting upon this large limit of £500, below which there can be no arbitration. If the noble Lord will consider the number of cases which will come up for compensation under this Bill, he will recognise that there will be very few cases indeed over that sum. From our experience of the working of the English Small Holdings Act we know that such cases are extremely rare. I do not like to say there are none, because there may be some cases of which I do not know; 1103 but I have never known a case of compensation where the demand has come up to that sum. If the noble Lord lays down that there is to be no arbitration under £500, he practically does away with the arbitration scheme altogether. I am sure that is not his wish. I believe, in accepting the principle of arbitration, he wants to give us arbitration fairly, but I am certain we are getting no advantage at all out of that concession unless we have a much lower limit than £500.
My noble friend has stated quite plainly his reasons for thinking that there should be no limit at all, and I agree with him in principle. I think that logically there should be no limit, but we have gone so far in the direction of endeavouring to meet the noble Lord opposite in this matter that it would be almost ludicrous if we fell out on a comparatively small point. We have built up compromise on the top of compromise until we have lost almost everything—perhaps not everything, but almost everything which we set out to gain. I do not want to belittle the concessions which the noble Lord in charge of the Bill has given us. He has met us very fairly, I admit, on certain matters, but we have lost by compromise, as I have said, a vast amount of what we went out to gain. But it would be foolish on both sides if we refused at this moment, at this very late hour, to accept a reasonable settlement of this matter. The noble Lord encourages me to say this because he has recognised that we do approximate very closely to one another in this matter, and he tells us that he is perfectly prepared to consider any matter of detail. I hope he will consider this limit a matter of detail. I think it is, and I hope he will be able to propose to us a limit which we on this side of the House will be able to accept.
LORD BALFOUR OF BURLEIGH
I am sorry to strike a discordant note, but I entirely disapprove of the proposal which is now made. It may be that I am powerless to resist it, but there is all the difference in the world between arbitration and a Land Court. The whole argument the other night of the noble and learned Earl on the Woolsack, of the Secretary for Scotland, and of the Lord Advocate in another place, was to the effect that arbitration had been successful in these matters from 1845 down to the present 1104 time. Arbitration has been successful, but for this reason—that those who were concerned in arbitration, whether landlord or tenant, have had the right to agree upon the individual to whom they will submit their case; they have, as a rule, agreed, and if they have not agreed they have, at any rate, agreed to accept his award. That is a wholly different thing from being put at the absolute discretion of a body of men over whom they have no control. From their decision there is to be no appeal, and the whole argument which is drawn from the success of the previous Acts, either of the Agricultural Holdings Act or any other Act, is beside the point which we are deciding to-day. I entirely approve of the Amendment of the noble Earl, Lord Camperdown. If he would go to a Division I should be glad to support him, but I know perfectly well that he is not going to do so. I have probably no power of stopping what is going on, but this is one of the most fatal moves that, in the whole of my experience, has ever been made in the interests of the best class of agriculturists in Scotland, and I shall continue to protest against it in any way that I have power.
§ LORD PENTLAND
If, by your Lordships' leave, I may say a word in response to what has been said by noble Lords opposite on the Amendments which are before the House, I will attempt to place before you the position of the Government. As noble Lords know well, the Government are not in a position to command a majority in this House, and therefore it will not be my suggestion that the Government should prolong the proceedings to-night by taking divisions on any of these detailed points, and I should greatly hope, in view of the conciliatory spirit which I think is present on both sides of the House, that we might be able to adjust this matter. I assure your Lordships, on behalf of the Government, that there is every desire to meet the views which have been expressed in regard to these Amendments. I will not weary your. Lordships by arguing this matter of principle. You are well aware of the position which the Government have taken up throughout and which we still hold, but I do wish to respond to the suggestion which has fallen from the noble Marquess, and to say that if he should succeed in advising the noble Earl, Lord Camperdown, to accept my Amendment as the basis for a settlement of this question, 1105 I see no difficulty whatever myself in meeting him upon the points already enumerated by the noble Marquess.
I will mention them if I may. In the first place, there is the question of the notice, which is seven days in the Bill. I do not know whether fourteen or twenty-one days would meet the views of your Lordships. Shall we say twenty-one days? [The MARQUESS of LANSDOWNE: Hear, hear.] Then comes the question of the amount of the limit. I regret extremely any reduction of the amount of the limit, for the reasons which I have stated on former occasions, but I do not wish to stand out on the amount, and if your Lordships wish £400, or £300, instead of £500, I am not going to stand out on a point of that kind. The Government, I assure your Lordships, are anxious to meet you, except on matters of principle where they feel they cannot give way. There is another Amendment which the noble Marquess desired, and that is that the matter of expense should be met in the case of a scheme which is ultimately dropped by the Board of Agriculture. The noble Marquess suggested that it was hardly fair that an owner should be put to the expense of his part in the proceedings and that at the close, and perhaps after hearing the award for compensation, the Board of Agriculture should withdraw from the scheme. The noble Marquess suggested that the owner should be indemnified for the costs to which he had been put in this respect. I am, quite ready to meet your Lordships in that matter, and I have had a clause drafted which I believe meets that demand.
There is one other suggestion I should like to make, and that is that after the word "and" in my Amendment ["to be settled by arbitration instead of by the Land Court, the same shall be settled accordingly; and"] these words should be inserted, "at any time within fourteen days after the said intimation." I think that will make this a more complete scheme. I am advised that we must have some limit of tim3. I do not adhere strictly to the proposed limit of time, but I think fourteen days gives ample time considering that it follows on twenty-one days, and I do not anticipate that your Lordships will take any objection to that. I hope I have made the position of the Government quite clear, and I assure your 1106 Lordships that we are very anxious not to delay proceedings beyond a reasonable limit. May I mention one further point? This is Third Reading, and it is, of course, the only stage which we have left for the consideration of this Bill in this House. There are, of course, objections—the noble Lord opposite has drawn attention to them—to inserting at this stage Amendments which are not on the Paper but it would be a great convenience if your Lordships would allow such Amendments as we agree to to be inserted at this stage, without prejudice to any verbal Amendments which may be made elsewhere.
THE EARL OF CAMPERDOWN
I have listened very attentively to all that has been said on both sides of the House in regard to this matter. I still do not consider that this Court is a body well suited either to settle whether compensation is due or the amount that ought to be paid. But in consideration of all that has been said, and more especially after what has fallen from the Secretary for Scotland, for I understand that whatever Amendments are inserted by this House to-night the Government will press in the other House of Parliament with all the power at their command—
THE EARL OF CAMPERDOWN
On that understanding I shall have much pleasure in following the advice which was tendered to me by the noble Marquess, and shall, by the leave of the House, withdraw my Amendment.
§ Amendment, by leave, withdrawn.
The Amendment standing in the name of Lord Pentland was as follows:
Clause 7, page 9, line 35, leave out from ("matter") to end of line 43 and insert:
("Provided always that where within seven days after the issue by the Land Court of an order under this subsection a landlord or a tenant, as the case may be, intimates to the Land Court and to the Board that he claims compensation to an amount exceeding five hundred pounds and that he desires to have the question whether damage or injury entitling him to compensation as aforesaid will be done, together with the amount of such compensation (if any), to be settled by arbitration instead of by the Land Court, the same shall be settled accordingly; and, failing agreement with the Board as to the
appointment of an arbiter, it shall be lawful for him to apply to the Lord Ordinary on the bills for such appointment, and the Lord Ordinary shall forthwith on receipt of such application nominate a single arbiter to decide the questions aforesaid, whose award shall be final, and binding on the Board, in the event of the scheme being proceeded with; and, if no final award be given within three months from the date when the arbiter is nominated, the questions aforesaid shall be decided by the Land Court as herein-before provided.
In determining the amount of compensation under any provision of this Act no additional allowance shall be made on account of the constitution or enlargement of any holding being compulsory.")
§ LORD PENTLAND, in moving this Amendment, intimated that he desired to amend it by inserting the modifications to which he had consented by way of compromise. These were to substitute "twenty-one days" for "seven days "at the beginning of the proviso; to omit "five hundred pounds" and insert "three hundred pounds"; to insert "at any time within fourteen days after such intimation" after "and" ["shall be settled accordingly; and"]; and to add a further provision that the Second Schedule of the Agricultural Holdings (Scotland) Act of 1908 should apply to any such arbitration with the exception of the paragraphs (1), (5), (10), (11), and that in the event of the scheme not being proceeded with the expenses of parties reasonably incurred in connection with the arbitration should be paid by the Board.
LORD BALFOUR OF BURLEIGH
I should like to hear some explanation of this last Amendment. I have heard nothing of this before, and I frankly say I do not understand a word of what is intended. This is legislation by reference, without an opportunity of its being considered, and to insert such an Amendment at this stage when it is not even printed is establishing a precedent which has not been established before.
§ LORD PENTLAND
This Amendment is designed to meet the suggestion made by the noble Marquess the Leader of the Opposition, that in cases of the withdrawal of a scheme the expenses of the arbitration cast upon the parties should be met. Of coarse, if the House would prefer that this Amendment should not appear in the Bill, I am in the hands of the House.
THE EARL OF CAMPERDOWN
I thoroughly enter into the objection taken by Lord Balfour of Burleigh, that it is inexpedient as a rule to introduce Amendments on Third Reading which have not been put down on the Paper, but, unfortunately, usage and custom are being departed from much more frequently than used to be the case, and I think that in this matter we might as well swallow the camel. The noble Lord has not had an opportunity of seeing the Amendment, but I have been fortunate enough to have had that opportunity, and I have looked at it with the assistance of persons better able to judge the matter than I am and I am hound to say that it seems to me to meet the case.
LORD BALFOUR OF BURLEIGH
I may point out that not only is this going to be done in this House without notice, but if this Amendment goes to another place it will also have to be done there without notice, and we are entirely in the hands of those who have taken the responsibility of drafting it. It seems to me a most improper proceeding and utterly derogatory to the dignity of Parliament, and with all my strength I protest against it.
§ On Question, Lord Pentland's Amendment, as amended, agreed to.
§ LORD PENTLAND moved, after the word "eleven" in paragraph (b) of subsection (16), to insert "or in the case of land within the counties specified in section nineteen of the Act of 1886, at Whitsunday nineteen hundred and six." The noble Lord said: I think this Amendment requires a little explanation. This is a point on which there has been a difference between the two sides of the House. Your Lordships will remember that a saving of leases was introduced into the Bill. I wish, first, to remind your Lordships that there is no such saving in the English Act passed three years ago. The saving was introduced into this Bill because of the fear of the tribunal, of the inadequacy of the compensation, and injustice and so forth. I think for the real working of this scheme the whole of this subsection should go out of the Bill. But there is objection to that. I am very anxious to meet the views of the Opposition in this matter, and to reduce our differences 1109 to the lowest possible degree. We have a tribunal which, I think, satisfies us. We have a compensation which satisfies us, and therefore everything really has been done which should reassure us and put us in the position of the English Act, in which there is no such saving. I do not even ask your Lordships to do that. But I do ask, so far as the crofting counties are concerned, that my Amendment should be inserted for this reason. At present there is no restriction, so far as the currency of leases is concerned, upon the power of the Crofters Commission to make enlargements; and if there is a distinction drawn between making enlargements and making new holdings, I have only to remind you that we have now provided a compensation and a tribunal and so forth to meet that difference between enlargements and new holdings. From what I have said your Lordships will see that if you do not allow current leases to be open to the operation of this Bill—that is to say, leases from 1906 onwards—you are actually going back on the crofting counties, and you are depriving those counties of opportunities which they have at present under the 1886 Act. I have, I hope, shown your Lordships that I have gone as far as possible to meet the objections on this score. I have confined myself simply to continuing the existing state of things and preventing this Act taking a backward step. I hope your Lordships will see your way to meet the Government in this respect.
Clause 7, page 10, line 41, after ("eleven") insert ("or in the case of land within the counties specified in section nineteen of the Act of 1886, at Whitsunday nineteen hundred and six").—(Lord Pentland.)
§ On Question, Amendment agreed to.
§ Drafting Amendment to Clause 15 agreed to.
Clause 17, page 16, line 5, leave out ("appeal") and insert ("alternative arbitration").—(Lord Pentland.)
§ On Question, Amendment agreed to.
§ LORD PENTLAND
The words in Clause 25 which I move to omit are no 1110 longer necessary owing to the alterations we have made in the Bill.
Clause 25, page 19, line 16, leave out from beginning of line to ("provided") in line 17.—(Lord Pentland.)
§ On Question, Amendment agreed to.
§ Clause 32:
§ Provisions as to statutory small tenants.
§ 32. With respect to statutory small tenants the following provisions shall have effect:—
§ (1) A statutory small tenant means and includes a tenant from year to year, or leaseholder, not otherwise disqualified in terms of this Act, in regard to whom section two of this Act provides that he shall not be held an existing yearly tenant or a qualified leaseholder, and the successors of such tenant or leaseholder in the holding, being his heirs, legatees (if within the relationship specified in section sixteen of the Act of 1886), or assignees (if assignation be permitted by the lease):
§ (2) Except so far as expressly applied by this Act, the Landholders Acts shall not apply to statutory small tenants:
§ (3) A holding which is or has been held by a statutory small tenant shall not be merged in or amalgamated with any other holding as defined in the Agritural Holdings (Scotland) Act, 1908, except with the sanction of the Board:
§ (4) Except in any case where the landlord satisfies the Land Court that there is reasonable ground of objection to a statutory small tenant (hereinafter in this section referred to as the tenant) and the Land Court find accordingly, the tenant for the time being shall, notwithstanding any agreement to the contrary, be entitled on any determination of the tenancy to a renewal thereof on the terms and conditions herein-after specified:
§ (5) Except so far as varied by this section, the Agricultural Holdings (Scotland) Acts, 1908 and 1910, shall apply in the case of the tenancy of a statutory small tenant in the same manner as if the tenancy were a lease, and for the purposes of those Acts and otherwise the tenancy, as renewed from time to time, shall be deemed to be a lease current for the period of renewal:
§ (6) Subject to the provisions of the last-mentioned Acts and of this section, the landlord and the tenant may agree upon the terms and conditions of the renewed tenancy:
§ (7) Failing agreement, the landlord or the tenant may have an equitable rent, or the period for which the tenancy is to be renewed, determined by arbitration in accordance with the provisions of the Agricultural Holdings (Scotland) Act, 1908, as amended by this section:
§ (8) In determining the rent the arbiter shall, so far as practicable, act on his own 1111 knowledge and experience, taking into consideration all the circumstances of the case, holding, and district, including the rent at which the holding has been let, the proposed conditions of the renewed tenancy, the improvements made by the landlord and tenant respectively, and the then condition and value of such improvements; and shall fix as the rent to be paid by the tenant the rent which, in his opinion, would be an equitable rent for the holding between the landlord and the tenant as a willing lessor and a willing lessee: Provided that he shall allow no rent in respect of any improvements made by or at the expense of the tenant or any predecessor in title for which he or his predecessor, as the ease may be, has not received payment or fair consideration from the landlord or his predecessor:
§ (9) Subject as aforesaid, the terms and conditions of the renewed tenancy shall (except so far as agreed to be varied) be those of the determining tenancy, in the same way and to the same effect, as nearly as may be, as if the tenancy had been continued for the full period of renewal under tacit relocation, and the tenant shall be entitled, if he so desires, to a renewal on those terms and conditions:
(10) The Agricultural Holdings (Scotland) Acts, 1908 and 1910, as applied by this section, shall be varied as follows (that is to say):—
In the Second Schedule to the Agricultural Holdings (Scotland) Act, 1908, the Land Court shall be substituted for the Board, and where in terms of that schedule a person is nominated as arbiter by the Land Court his remuneration shall be paid by the Land Court:
§ (11) In the event of the landlord on the renewal of the tenancy failing to provide such buildings as will enable the tenant to cultivate the holding according to the terms of the lease or agreement or at any time failing to maintain the buildings and permanent improvements required for the cultivation and reasonable equipment of the holding, in so far as the tenant is not required at common law or by express agreement in writing to do so, it shall be lawful for the tenant to apply to the Land Court to so find and declare, and if the Land Court after hearing parties (if they desire to be heard and after giving the landlord (if he so desires) an opportunity of remedying his failure as aforesaid) shall so find and declare, the tenant shall as from the date specified in the finding become a landholder, and the definition of landholder in this Act shall include such tenant and his successors in the holding, being his heirs or legatees:
§ (12) It shall he lawful for the Board to provide model forms of agreements for optional use by landlords and tenants under this section, provided that nothing herein contained shall make the use of any such form compulsory:1112
§ (13) In the event of any dispute arising as to whether a person is a statutory small tenant within the meaning of this Act, it shall be competent for the Land Court to determine such question summarily:
§ (14) Subsection four of section six, section twenty, and section twenty-seven of the Act of 1886, section two of the Act of 1887 down to the word "summarily," and subsection nineteen of section seven, subsection four of section eight, section twelve, section twenty-five, and subsection one of section twenty-six of this Act shall, with the substitution of "statutory small tenant" for "landholder," and "equitable rent" for "fair rent," and with any other necessary modifications, apply for the purposes of this section as they apply for the purposes of the Landholders Acts:
§ (15) Without prejudice to any agreement between the parties, the Land Court may, on the application of the landlord, and upon being satisfied that he desires to resume the holding or part thereof for building, planting, feuing, or some other reasonable purpose having relation to the good of the holding or the estate (including any purpose specified in section nineteen of this Act), authorise the resumption thereof by the landlord, subject to the payment of the like compensation to the tenant in respect of improvements on or in connection with the land resumed, to which a tenant would be entitled under the Agricultural Holdings (Scotland) Act, 1908, on the determination of his tenancy, and in addition, where part only of the holding is resumed, to such reduction of rent as may be agreed between the parties, or, in case of dispute, determined by the Land Court.
§ LORD PENTLAND moved to omit from subsection (7) all words after "Failing agreement, the landlord or the tenant may," and to insert the words of his Amendment. The noble Lord said: This Amendment is one which reverses the decision of your Lordships at a previous stage of this Bill, and which I hope you will see fit to allow to be embodied in the Bill. I do not think I need explain it at any length. You are familiar with it, and I understand that you are not averse, in view of the alterations which have been made in the Bill, to accepting this Amendment.
Clause 32, page 26, line 37, leave out from beginning of line to end of line 41 and insert ("apply to the Land Court to fix an equitable rent, or to fix the period for which the tenancy is to be renewed, and the Land Court may thereafter determine the rent to be paid by the tenant, or the period of renewal, or both, as the case may be ").—(Lord Pentland.)
§ LORD CLINTON
I view with real regret the noble Lord's intention to reverse the decision to which this House came on a previous occasion. I have always viewed the substitution of arbitration for the Land Court in fixing rents under Clause 32 as of the greatest, importance. I know that it was the only method which in any way reconciled my noble friend Lord Balfour of Burleigh to the provisions of this clause. He thought, as we all did, that the powers to which this clause referred should have been left out of the Bill altogether, but the noble Lord refrained from opposing the clause in Committee because the system of arbitration was adopted. But I am bound to say that this system of arbitration was shorn of almost all its value by the refusal of the noble Lord to accept Amendments which subsequently moved. I explained my views in. Committee at some length, and do not want to trouble you further on the point, except to say this, that the result of the clause which provides that the Land Court shall pay the remuneration of the arbitrator only in cases where that Court, itself appoints him is absolutely destructive of all form of mutual arbitration. I feel quite certain that, under ordinary arbitrations under the Holdings Act, the better method of agreement between the landlord and the tenant as to who should be the arbiter to settle matters in dispute between them will be destroyed by the decision to pay the remuneration of the arbitrator only in cases where they have failed to come to an agreement, and to make them pay the remuneration in those cases where they have agreed upon the arbitrator. This will practically take away the whole value from the system of arbitration.
LORD BALFOUR OF BURLEIGH
The special pleading of the noble Lord opposite does not reconcile me to the abandonment of our Amendment. As long as the House understands what it is doing, it is for the House to decide; but by the abandonment of our Amendment Parliament will be allowing, for the first time, a landlord who has done his duty and carried out the whole of the improvements upon the holding, to be put in the same category as the man who has done nothing. The basis of the Crofter Act and the Irish Land Act was that the tenant acquired an interest in the holding by doing improvements of a permanent nature. That was a reasonable and legitimate ground for giving him 1114 an interest, and that could only be decided by an independent tribunal. But in this case, for the first time, you are giving to the tenant who has done absolutely nothing for the permanent improvement of the holding, who has come in for a period of years only under a lease, an interest which in course of time will grow, and must grow into that dual interest which has been the curse of Irish land. So long as the House knows what it is doing, I have nothing to say; but that it should do it with its eyes open, and only with its eyes open, is the object of my making these remarks. For the first time you are giving to a tenant an interest which he has not acquired, to which he has no moral or equitable right, and you are giving it to him by Statute. To my mind, there is no distinction—and that has been admitted by the Lord Advocate in another place—there is no logical distinction between what is above and what is below £50. There is no logical distinction between the man who holds a lease and the man who does not hold a lease. You are in principle and in fact breaking down by this action to-night the whole distinction which has hitherto been preserved. You are giving to the man who has come in temporarily and done nothing at all precisely the same right as if he had earned and paid for a permanent interest in the holding. I know I stand alone, but I make a most earnest -and respectful protest against the course which is proposed to be pursued.
§ THE MARQUESS OF LANSDOWNE
I entirely agree with the noble Lord who has just sat down upon the question of principle, and indeed, unless I am mistaken, in the debate on the Second Reading I used arguments very closely resembling those he has just used in regard to the proposal of the Government to create this new category of statutory small tenants. They are, as he truly said, tenants who ex concessis have not executed their own improvements, but the improvements have been executed by the landlord. I suggested the other day that there was no sufficient reason for giving them what, in the language of the Irish Land Act, we call fixity of tenure and fair rents, but if the House was disposed to insist upon that view our proper course I think, would have been, either to have thrown out this Bill on Second Reading, or to have expunged from it the whole of the sections dealing with statutory small holdings. We have 1115 not done that, and now we are simply called upon to decide between a form of words inserted in the Bill by my noble friend Lord Clinton, and an alternative form of words proposed by the noble Lord in charge of the Bill. Let me point out that, although there is a great deal to be said for the form of words now in the Bill, they do not have the effect of precluding the statutory small tenant from getting a fair rent fixed or getting a perpetuity of tenure. The difference between the proposal of my noble friend Lord Clinton and the proposal of the noble Lord in charge of the Bill is that in the one case the thing is done by the Land Court and in the other case it is done by agreement. With Lord Clinton's Amendment the Bill would still be open to the indictment of my noble friend Lord Balfour of Burleigh.
Now to come to the proposal of Lord Clinton. The author of that Amendment has risen in his place to-night to tell us that, after examining the question carefully, he has come to the conclusion that his words, without other alterations in this part of the Bill, would really not produce the desired effect. If that is the view of the author of the Amendment, I cannot be more courageous than he is, and therefore I think he is probably well advised not to insist upon it.
§ On Question, Amendment agreed to.
§ Amendments moved—
§ Clause 32, page 27, line 1, leave out ("arbiter") and insert ("Land Court")
§ Clause 32, page 27, line 2, leave out ("his") and insert ("their")
§ Clause 32, page 27, line 10, leave out ("his") and insert ("their")
§ Clause 32, page 27, line 13, leave out ("he") and insert ("they").—(Lord Pentland.)
§ On Question, Amendments agreed to.
§ Further drafting Amendments made.
§ Bill passed, and returned to the Commons.