LORDS AMENDMENTS. (Hansard, 23 December 1920)

HL Deb 23 December 1920 vol 39 cc926-44 926

§ Clause 30, page 28, line 22, leave out ("the expression")

927

§ Clause 30, page 28, line 22, leave out from ("husbandry") to the end of line 26, and insert ("shall for the purposes of this Act (due regard being had to the character of the holding) include—

(a) the maintenance of the land (whether arable meadow, or pasture) clean and in a high state of cultivation, condition, and fertility;
(b) The maintenance and clearing of drains, embankments, and ditches;
(c) The maintenance and proper repair of fences, stone walls, gates, and hedges;
(d) The execution of repairs to buildings, being repairs which are necessary for the proper cultivation and working of the land on which they are to be executed; and in addition
(e) Such rules of good husbandry as are generally recognised as applying to holdings of the same character and in the same neighbourhood as the holding in respect of which the expression is to be applied;

§ Provided that the foregoing definition shall not imply an obligation on the part of any person to maintain or clear drains, embankments, or ditches, if and so far as the execution of the works required is rendered impossible by reason of subsidence of any land or the blocking of outfalls which are not under the control of that person, or in its application to land in the occupation of a tenant imply an obligation on the part of the tenant—

(i) To maintain or properly repair fences, stone walls, gates, or hedges where such work is not required to be done by him under his contract of tenancy; or
(ii) To execute repairs to buildings which are not required to be executed by him under his contract of tenancy").

§ The Commons disagree with these Amendments but propose the following Amendments to the Bill:

§ Clause 30, page 28, line 22, leave out from the beginning of the line to the end of line 26, and insert:

§ ("The expression 'rules of good husbandry' means (due regard being had to the character of the holding) maintenance of the land (whether arable, meadow, or pasture) so far as practicable, clean and in a good state of cultivation and fertility, and in good condition and in other respects means compliance with such rules of good husbandry as are generally recognised as applying to holdings of the same character, and in the same neighbourhood as the holding in respect of which the expression is to be applied.")

§ LORD LEE OF FAREHAM
I now come to what is probably the most important of all the Commons Amendments, and I find it necessary to make a few remarks to your Lordships on the subject. The House will recollect that in the course of my speech on the Third Reading I indicated that in my view and in the view of the Government the definition of the words "rules of good husbandry" which 928 were inserted by your Lordships in the course of the Committee stage in this House would have the effect, which I am quite certain your Lordships did not intend and would not desire it to have, practically of destroying in many cases the compensation for disturbance principle to which you had previously agreed. The insertion of a definition which set up an entirely new standard of rules of good husbandry, quite different from anything that had existed before and therefore something which could not have existed in the agreement of tenancy of any farmer up to this time except possibly in some very unusual cases, would in effect set up a higher standard than had ever been customary, and unless the dispossessed tenant was able to show that he had been farming up to a higher standard than had been required either by custom or the terms of his tenancy he would be unable to obtain any compensation.
It cannot be forgotten by any of those who heard the speech of the noble Lord, Lord Ernle, who in these matters speaks with greater authority and experience than almost anyone in your Lordships' House, how he detailed what would be the effect of these words as they stood upon a tenant who was dispossessed and who was claiming compensation for disturbance. I feel that the arguments which he put forward and the points with which they deal are of such vital importance to the very existence of this Bill that I hope your Lordships will forgive me if I quote from his speech. He said— In the first place you use this definition as an instrument of production, but in this Part II you are using it as a measure of compensation, and all along the line it is dead against the tenant. I feel I must put the point before you because it is one of extreme importance; you are tightening up the rules of good husbandry. That is to say, you are reading into every contract of tenancy, whether it is for a year or a term of years, a stricter interpretation of the common law duties and obligations to farm according to the rules of good husbandry. And so, when you come to what is now Clause 10 (1) (a) you find that a man cannot obtain compensation if he is not farming according to the rules of good husbandry —not merely the rules of good husbandry under which he accepted his tenancy but the more strictly defined rules of good husbandry which now appear in the Bill. He went on through the subsequent clauses of the Bill and showed that according to Clause 10 (1) (b) a tenant might again be cut out by an alleged breach of covenant which would not have been a breach of 929 covenant under the terms of his agreement. Then he went on— And if you pass on to Clause 15 you offer there to the tenant compensation for continuous good farming. Yes, and you make it illusory, because you put the standard—the datum line so to speak—additionally high under this Bill. He concluded his remarks by saying that this is "a very grave circumstance." It has certainly been brought to me since, after the dotting of the "i's" and the crossing of the "t's" of your Lordships' proposal by so high an authority as Lord Ernie, that the effect on the farming community has been, I venture to say, something that your Lordships would not in the least desire to be responsible for. I am not exaggerating when I say it has created a feeling of consternation. It does give them the impression that the compensation clause will be quite illusory, and while I do not in the least endorse the comments which have been made by those affected, who suggest that that was your Lordships' reason for putting in the words—I am certain it was not—undoubtedly the feeling is intense that this was practically giving the principle of compensation for disturbance with one hand and then taking it back with the other by means of a too strictly-worded definition.
No one, as your Lordships know, is more convinced of the importance of doing everything possible to raise the standard of farming in this country than I am, and it is for that reason that the Government has sought powers in this Bill, under Clause 4, not only to insist upon rules of good husbandry, but now, if your Lordships consent, they have power to order improvements in the method of cultivation, the execution of proper works of maintenance and other matters which are essential to a higher standard of farming. That is the ideal at which we wish to aim, and the committees have been given, I think subject to proper safeguards, sufficient powers to enable them to carry that into effect. But it seems to me I must confess—I felt it at the time and it has been impressed upon me more strongly since—that it would not be fair to take that ultimate ideal of a higher standard of farming, which will necessarily take years before we can hope to have it generally adopted—it would not be fair to take that ultimate ideal and impose it now at once in all cases upon dispossessed tenants who are seeking compensation for disturbance. I feel that would be hard and indeed would 930 be fatal to the whole object of Part II of the Bill, which is to give a sense of security sufficient to encourage enterprise and the putting of more capital into the land. It is not to give the farmer something to which he is entitled in law. We have agreed that the basis of compensation is not justified by logic or legal justice, or anything of that sort, but it is accepted because it is necessary to increase the feeling of confidence which is essential.
I think your Lordships will recall that at your request certain words were inserted in that standard of compensation, to the effect that you agreed to this in order to avoid disputes. That was your phrase. You did not want to accept the principle, but you agreed to it in order to avoid dispute. If that is so, I ask you what could possibly be more calculated to produce disputes of an almost bitter character, litigation, and contested arbitration on an almost universal scale than to apply to this scale of compensation a test such as that which is included in your definition of good husbandry? You are putting in something which is not in the tenant's agreement, and something higher than anything he has ever been accustomed to, and obviously in every case the claim would be contested on one side or the other, and the only result would be that there would be not an avoidance of disputes but a breeding of disputes on an almost universal scale. It was this consideration, I think, which influenced the House of Commons in amending your proposal. The proposal which they have put on the Paper at the bottom of page 8 is really practically a combination of subsection (a) and (e) in Lord Clinton's Amendment. They have been blended together, and there is a slight modification—and it is very slight—in the definition. When I say slight I mean that it is slight in volume, but its meaning may be of first-class importance, not only because it may dispel this cloud of litigation which I sec otherwise descending upon the unfortunate claimant, but also because I think it is fair in itself, and will not be open to the charge that is made against the present definition of making the compensation clause nugatory.
I do not know that I can say anything else in support of the Amendment, which has been sent up front another place, but I would point out to your Lordships that the alterations made in the Bill in your Lordships' House were vary extensive. 931 There was hardly a clause which was not amended—I am not complaining, I am only stating what is a fact—so much so that when the Bill went back to another place there was a debate of considerable length, which I attended, in which the claim was made that your Lordships had in fact sent down a different Bill, and that the Commons were called upon to discuss it late at night. I think perhaps that was a picturesque exaggeration; still I would put this to your Lordships. All through these discussions the Government have shown every desire to meet every point that you brought forward in so far as they possibly could do so with due regard to the principles of the Bill.
I doubt whether there has been any measure of first-class importance for some time in which your Lordships have been given such a free hand to mould the Bill in the direction that you considered to be wise and fair. I freely admit that in many respects you have made improvements, for which we are duly grateful. But the number of Amendments that you made were very great, and the Commons have received them, I venture to say, in a spirit of compromise and fairness and have accepted the great bulk of them. They have sent back certain Amendments which we are now discussing. This one I agree is perhaps the most important. I still think that the definition which has been adopted in another place is a great advance on any previous definition or understanding of the meaning of the Rules of good husbandry. It goes as far as is reasonable in view of the uses to which it is to be applied in connection with Part II of the Bill, and I earnestly appeal to your Lordships at this last stage to look upon this Amendment with a favourable eye. I believe that it is put forward with the earnest desire to go as far as the Government possibly can in the direction that your Lordships wish, and that if you go further and insist upon such a word as "high," for example, in your Amendment, you really will create an impression throughout the farming community that the interpretation of this definition which has been made by Lord Ernle—whose speech is already circulated far and wide—unless you are prepared to modify your view on that I think an impression would be created which would not only be disastrous to the farming industry and disastrous to the Bill, but I am sure would not be of a character that 932 your Lordships would wish to be attached to your proposals.

§ Moved, That this House doth not insist upon the said Amendments, and agrees to the Amendments made by the Commons.—(Lord Lee of Fareham.)

§ THE MARQUESS OF LINCOLNSHIRE
I wish most earnestly to support what has fallen from the Minister of Agriculture. The case has been so well put by Lord Ernie and by the noble Lord that I need not say one word upon that except that, dangerous as this clause appears to be, its only excuse would have been if farming had been going on under the old conditions. Under the old conditions perhaps there might not have been this great danger that there is, but now land is bought for commercial purposes, and it would be putting a great instrument of power into people's hands who have bought land for that purpose. I heard the discussion in the House of Commons this afternoon, and I was very much struck by the unanimity that there was on this subject, and the moderation with which these views were expressed in all pActs of the House. I was particularly struck by one remark made by Colonel John Ward, whom we all know as a Labour Member who covered himself with the greatest possible credit and glory during the great war. I think he put the case in a nutshell when he said that under present circumstances we ought to moderate our views to meet the situation. I most earnestly hope that the views so well expressed by the Minister of Agriculture will be adopted.

§ THE EARL OF SELBORNE
I wish to put before your Lordships the view that I hold personally and many of my friends hold as to what was said by Lord Ernle. For his opinion I have the greatest possible respect and deference. I acknowledge the weight of his authority, with which mine cannot for one moment compare, but I absolutely dispute his interpretation of the meaning of the definition, as we sent it down to the other place. I wholly and totally differ from him, and I repudiate absolutely the suggestion that these words were chosen with any such meaning as has been imputed to them—not by my noble friend opposite (Lord Lee) but by others. Holding these views that Lord Ernle was wrong in his interpretation, of Course it follows that we never intended the consequences he suggests.

933

§ THE MARQUESS OF SALISBURY
We have listened with the greatest possible attention to what has fallen from the noble Lord (Lord Lee), and I can assure the Government that there is no member of your Lordships' House now present who desires to meet this difficult question in anything but a conciliatory spirit. There is not any spirit of hostility to any class of the community; it is the furthest thing from my mind, and, as Lord Selborne has said, we had no intention whatever of putting in an impossible definition of good husbandry. On the contrary, the words that we used were words which are very often found in leases which are granted to tenants, and are only meant to secure that, before a tenant has any right to ask for compensation on the one hand, and in order to achieve a proper standard under Clause 1, we required good farming in the ordinary full sense of the term. No one suggests that indifferent farming, or anything but first rate farming, should be entitled, as a right, to compensation. That is all we desired to say so far as the compensation part of the clause is concerned. I do not speak very much about Clause 4, because, as the noble Lord is well aware, owing to the words inserted on Report, the operation of Clause 4 does not entirely depend upon the definition of good husbandry.
How are we then to meet the Commons Amendment? The Commons Amendment may be divided into three pActs. There are the words "so far as practicable." There is the change of "high" into "good," and there is the omission of the other paragraphs dealing with ditches, hedges and so forth, which your Lordships inserted. In my belief your Lordships never intended to enact anything which was not practicable, and no arbitrator would dream of enforcing anything which was not practicable, but I cannot believe that any one would desire to exclude those words if it is thought to be an advantage to put them into the text of the Bill. In a proposal which I shall venture to make I shall not leave them out. Then comes the question of "good" or "high." I must say that I think it very unfortunate that the Government desire to strike out the word "high" and replace it by the word "good". I am afraid it may give the impression that Parliament is not really intent upon first-rate farming, and that when it came to face the question its courage quailed a little before the task of 934 screwing up farming in England to its proper standard. We do not want it higher than its proper standard. Your Lordships—and may I say it with due humility to the other House of Parliament—who know a good deal about the cultivation of land for reasons which everybody understands, are aware that the standard of good husbandry has fallen lamentably short in many pActs of our country, and that it is a matter of high public policy to raise it. We understood that that was the object of the Government and of all parties in both Houses of Parliament. Your Lordships used your intelligence and your efforts to promote that cause.
Knowing from experience the kind of words used in this matter, perhaps in our Own leases, we used exactly those ordinary terms, which were put into the definition, and we thought it was an entirely satisfactory arrangement. Now that they are altered undoubtedly the effect will be produced in the country—I hope it may not be; I hope I may be wrong—there is a danger that the effect produced in the country will be that Parliament after all is going to be satisfied with rather a moderate standard of good husbandry, and not a first-rate standard. I think that very unfortunate, but, as I said at the beginning of my speech, I think most of us are anxious to meet the House of Commons and the Government in a very conciliatory spirit. We recognise—and it is only just to say so—that your Lordships' House has been treated with great regard in the deliberations on this Bill, and we are very grateful to another place for having so treated us. For my part, I shall not resist changing the word "high' into "good."
Now I come to the third part of the Commons Amendment, relating to the other paragraphs, and I really think that upon that we ought to adhere to our opinion. I had the great advantage of hearing the debate on this point in another place, and it was quite evident, both from the attitude of the House and that of the Government, that these other paragraphs were considered in quite a different spirit from the question of "high" or "good" in paragraph (a). I cannot understand for a moment—and I do not suppose any of your Lordships would think otherwise—why a tenant should not be called upon to do his proper work in respect of maintenance of ditches, fences, and so on if he expects to get reasonable compensation 935 when he goes out. It is one of the straightforward objects of his covenants. But for reasons upon which I need not enter, the provisions in the earlier part of the Bill which prescribes that he must keep his covenants do not absolutely cover the ground, and therefore I venture to suggest to your Lordships that we should agree with the Commons in the substance of their Amendment so far as the words "so far as practicable" are concerned and so far as the change of the word "high" into the word "good" is concerned, but that we should replace paragraphs (b), (c), (d) and (e) and the rest of the Lords Amendments.

§ LORD LEE OF FAREHAM
Paragraph (e) is in the Amendment.

§ THE MARQUESS OF SALISBURY
It is; but for the purpose of drafting I should put it in that way and I think it would he more easily done. If the Government would accept that compromise I should be prepared to move the necessary Amendment to the Commons Amendment to carry out that decision.

§ LORD LEE OF FAREHAM
I can only speak again by leave of the House, but this matter is of such vital importance to the very existence of this measure that perhaps I may be permitted to say a few words. I fully recognise the conciliatory spirit in which the noble Marquess has approached this matter and I am quite convinced of his desire to bring about an amicable settlement. The speech he has just made has of course made an immense difference to the position from the Government point of view. I am inclined to agree with him that the words "so far as practicable" may not have any very great legal meaning, but they mean a great deal to the plain ordinary man who does not understand what all the results of legal proceedings might be, and might feel, particularly if such a word as "high" had stood, that the standard could be put as high as you please, and that he would have to qualify by it even though it was utterly out of his power to do it. To that extent I think the words "so far as practicable" are of great value as giving comfort and a sense of security to the tenant.
The word "high" I regard as an absolutely fatal obstacle because whilst I do not think the noble Marquess can accuse the Government or myself of being in- 936 different, as I think he suggested might be supposed, to a high standard of farming in this country, surely our anxiety in that direction has been somewhat curbed by your Lordships. At a previous stage we showed our anxiety in connection with the provisions of Clause 4, and I hope under that the standard of farming may be brought up sufficiently high that we shall not be reproached concerning it. But I think the word "high" would have been fatal in that connection, and I am exceedingly glad that the noble Marquess, speaking on behalf of those who act with him, has agreed with the substitution of the word "good." I think that would give all that your Lordships require in the way of a proper standard of farming in this country, and I should like to express my very warm acknowledgments to the noble Marquess.
The question remains as to paragraphs (b), (c) and (d). There the objection which the Government might feel to the noble Marquess's proposal is of an entirely different character. I have made a careful inquiry into this matter from those who are in the best position to know, and they say that so far as the standard of farming is concerned these words if reinserted would not in any way be to the disadvantage of the tenant; that is to say, these are the things and the only things which he is required to do under his contract of tenancy. There is a proviso further on showing that these are the only things that he is specifically required to do under his contract of tenancy. The word "high" is in quite a different category because that was not specified; that was something above his contract of tenancy. That was why we took such strong objection, because it imposed upon him something which he did not agree to do.

THE DUKE OF BUCCLEUCH
Not neccessarily.

§ LORD LEE OF FAREHAM
In the majority of cases. There may, of course, be exceptions. Paragraphs (b), (c) and (d) are the ordinary requirements of this contract of tenancy, and the objection we have taken to the insertion of those words has been simply that we are informed, again on legal authority, that they will cause a considerable amount of inconvenience and confusion in any arbitration proceedings that might have to take place. They cut across previous clauses in the 937 Bill. The objection to them is really one of inconvenience in connection with any proceedings that might have to take place. It is not that they impose anything more upon the tenant which would in any way make his position more difficult from the point of view of compensation. The point for which I am pleading is that the tenant should not be put in any worse position with regard to his rights of compensation. The suggestion which the noble Marquess has made on the two first points, I think,. meets our views in that matter. With regard to the three paragraphs (b), (c) and (d), I disagree with the noble Marquess. I think he is unwittingly introducing complications which will be no good to anybody except the lawyers, and being thoroughly persuaded as I am that the position of the tenant with regard to compensation will not be injured by the insertion of the paragraphs I should not be disposed to resist that if he feels he must press it.

§ THE EARL OF ANCASTER
Before we come to a decision on this matter I should like to know where we are. One of the most important things in the Bill is this question of maintaining the fences and gates and the painting of the buildings and the other things required by the contract of tenancy. With the small experience I have had in connection with land management I must say that in almost all the agreements I have seen, whether they are agreements subject to a year's notice or whether long or short leases, there is generally a clause under which the tenant undertakes to do certain things, keeping the gates and fences in good repair and painting his buildings, and probably doing certain repairs to his buildings. All that is set out in the agreement. As I understand, the whole of that is now to be upset. I think we ought to know where we are. The noble Lord said this would not interfere with any contract of tenancy as it exists, but the question is whether he should get compensation. It says it is a breach if he fails to comply or to remedy any breach, being a breach which is capable of being remedied, of any term or condition of the tenancy consistent with good husbandry. When we turn to the definition of "good husbandry," we should find, if those words are left out, that the maintenance of the fences and gates and the painting of buildings is not "good husbandry." It is a legal question I quite admit, but I have always understood that in the previous 938 Act of 1906 and the Consolidation Act of 1908 it was laid down that a tenant, could not contract out. It seems to me that if you lay down that good husbandry does not consist in maintaining the gates and hedges in a proper state of repair and doing such repairs to buildings as the tenant has convenanted to do, it is all waste paper, and the man can let the whole thing go to wrack and ruin. At the present moment, if a tenant leaves who has contracted to keep his farm in proper order and the gates and hedges in proper repair, and has not done so, of course he has dilapidated, but as the Bill stands you would not be able to dilapidate the tenant at all. I think that is a thing which your Lordships should understand before we go to a Division.

§ VISCOUNT CHAPLIN
The great stress which has been laid upon the question as to whether there should be high cultivation or not excites in me only one feeling, and that is one rather of amusement, because wherever there are high-class tenants you may be perfectly certain they will continue to practice high cultivation as long as they remain on their farms, whatever Parliament chooses to say on the subject. I agree in the main with everything that has just fallen from my noble friend, but I wish to say something further with regard to the proviso, which I see on the Paper on page 8 of the Amendments— Provided that the foregoing definition shall not imply an obligation on the part of any person to maintain or clear drains, embankments, or ditches, if and so far as the execution of the works required is rendered impossible by reason of subsidence of any land or the blocking of out-falls which are not under the control of that person, or in its application— Of course, nothing in the world could be harder upon any one than if he were considered to have committed a breach of contract in those circumstances, and I should support that proviso with all my heart. I hold that the less you try to hamper and interfere with the farmers of this country, who are generally speaking doing their work in a way which they thoroughly understand, the more you will do to increase the production which you desire.

§ LORD SUMNER
I wish to draw the attention of the Government to what I think is an ambiguity in the clause as sent up from another place. The words are "so far as practicable." As those 939 words stand they may mean so far as practicable for the farmer or so far as practicable on that farm. I presume what is intended is so far as practicable on that farm. If that is so, words like these ought to be inserted, after "practicable" and before "clean," "having regard to its character and position." I can put in a sentence what I mean. Is it intended that when the farmer is charged with not having kept his land clean and in a good state of cultivation he should be entitled to say, "Well, it is not very clean, but it is quite as clean as it was practicable for me to make it, because. I could not get labour and I was at the end of my money. Taxation is high and my bankers would not advance me any more, and I have done all that was practicable for me." Or does it mean, as I suppose, "Well, it is not in a very good state of cultivation for land generally in our pActs, but this land is a pretty bad piece of land. It is pretty well for my farm." In that case it would be reasonable enough that he should not be charged with having broken away from the rules of good husbandry, if he had done as much as was practicable, having regard to the character and position of the farm, to make it clean and in a good state of cultivation. I imagine that it is nothing but an ambiguity that has arisen out of haste, and the insertion of the words "so far as practicable having regard to its character and position" would clear up that point.
As to the other point about paragraphs (b), (c) and (d) I do not appreciate what the legal difficulties that are anticipated are going to be, but I think this will be the result, that when under the paragraph about obtaining compensation you come to consider what violation of the rules of good husbandry is to take the farmer out of the right of compensation, you would find, as this clause stands, that he might have violated the covenants of his lease in the very important though not strictly cultivating provisions relating to drains, fences, and so forth, and yet get compensation as if he had not done it. I know that you might bring an action against him on the covenant—a very good thing for the lawyers but not very profitable for any body else.

THE LORD CHANCELLOR
I am not sure whether the noble and learned Lord has noted the fact that the words were used in the second line of the Amendment 940 as it came to us from the Commons "due regard being had to the character of the holding." In point of fact I think that it would have been better drafting in relation to clearness of expression if the words had come in the clause where we had put them, but I do not see for a moment how any competent person could construe this with the words in the position in which they now stand and misunderstand them. I greatly doubt whether the word "position" in such a case would add to the expression "the character of a farm." I cannot think that an arbitrator, in forming an opinion of the character of the holding, could possibly exclude the question of situation. Due regard is to be paid to the character of the holding. As to the other points raised I would only remind the House, which I think has also been forgotten by some speakers, that the words do appear "in other respects," and they, I think, are intended to summarise the paragraphs.

§ THE MARQUESS OF SALISBURY
I think the procedure is that we do not insist upon our Amendment, and then I shall move an Amendment in the Commons Amendment.

§ On Question, Motion "That this House doth not insist upon the said Amendment," agreed to.

§ THE MARQUESS OF SALISBURY
I now beg to move an Amendment to the Commons Amendment. I take the Commons Amendment which is printed in italics at the bottom of page 8 on our supplementary Paper, and I shall move words after "holding" in the third line of the Amendment. I am going to use the words which have been supplied to me by my noble and learned friend Lord Sumner—"so far as is practicable having regard to its character and position." Then come the words, "maintenance of the land (whether arable, meadow, or pasture) clean and in a good state of cultivation and fertility; and in good condition." I propose to keep in "so far as practicable," but as I am going to ask your Lordships to restore (b), (c), (d), and (e) "so far as practicable "must not only apply to (a) but to all the paragraphs. Otherwise, in the ordinary rules of interpretation, it would seem that a very rigid form of interpretation was necessary in the latter paragraph. I suggest to the Government that the words "so far as prac- 941 ticable "must come back, so as to cover all the paragraphs. It will read, after "holding," "so far as practicable having regard to its character and position (a) the maintenance of the land," and so on down to "condition"; and then will follow (b), (c), (d) and (e) and the proviso, as in the Lords Amendment. Therefore the first Amendment I should venture to move is, after "holding" to insert "so far as practicable, having regard to its character and position—(a) the."

§ Amendment moved— After ("holding") insert ("so far as practieable having regard to its character and position —(a) the").—(The Marquess of Salisbury.)

THE LORD CHANCELLOR
I had addressed a considerable argument to the House with the object of showing that these words were not necessary.

§ THE MARQUESS OF SALISBURY
It was only in the hurry of the moment that I had forgotten. I had recently been at the play which is very much in the fashion, and as I stand between two noble and learned Lords, one here and one there, I felt inclined to say, "How happy could I be with either." I have taken the words of my noble and learned friend on my left (Lord Sumner), but I am willing to be guided by the Lord Chancellor.

THE LORD CHANCELLOR
I do not think my noble and learned friend would differ from me.

§ LORD SUMNER
May "t'other dear charmer" explain the difficulty he feels at the words in the parenthesis "due regard being had to the character of the holding." That is an express statement that you are to regard the character of the holding. Then, when you come to some other words "so far as practicable." the natural inference is that you would now be looking to something which was not the character of the holding, and what could it be except the character of the farmer? I only want to avoid an ambiguity. I always have a feeling that I might have to decide it some time—a thing I am most anxious to avoid. But, although there is no doubt considerable inconvenience in keeping in too many words, it is better to be clear, and I think it will not be dear unless the clause runs that regard is to be had to the character of the holding, and, so far as practicable, having regard to that 942 character, there is to be maintenance, and so forth.

THE LORD CHANCELLOR
I certainly would not quarrel with the insertion of those words if that was the end of the noble Marquess's proposal to amend. I do not attach very much importance to the point one way or the other. I think the words proposed by the noble Marquess convey what is intended by the Commons Amendment, but the noble Marquess desires to use this Amendment as the avenue to a further Amendment. It is for the Minister in charge to deal with that. I do not object to the first. The Question will be, in line 3 of the Commons Amendment, after "holding," to insert the words" so far as practicable, having regard to its character and position." And then the paragraphs (a), (b), (e), etc.

§ THE MARQUESS OF SALISBURY
I think the noble and learned Lord will see that I was well advised, because it is only a matter of drafting, but a little complicated. The words "so far as practicable" will have to come out in the later line, and then, when I move the old Lords words in, they have got to go in with slight modifications, which will have to be indicated at the moment. If I go through all that now, it will only put your Lordships in confusion. I think my plan was the proper plan to move each Amendment in its turn.

THE LORD CHANCELLOR
I will put it as the noble Marquess wishes.

§ THE MARQUESS OF SALISBURY
After "holding" to insert "so far as practicable having regard to its character and position. (a) the."

§ On Question, Amendment to the Commons Amendment agreed to.

§ THE MARQUESS OF SALISBURY
I now move to omit the words "so far as practicable" from line 4 of the Commons Amendment.

§ Amendment moved— Commons Amendment, line 4, leave out ("so far as practicable").—(The Marquess of Salisbury.)

§ On Question, Amendment to the Commons Amendment agreed to.

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§ THE MARQUESS OF SALISBURY
I think the easiest way in order to avoid confusion will now be to strike out all words in the Commons Amendment after "condition" in line six, although I shall reinsert them in their place.

§ Amendment moved— Commons Amendment, line 6, leave out all words after ("condition").—(The Marquess of Salisbury.)

§ On Question, Amendment to the Commons Amendment agreed to.

§ THE MARQUESS OF SALISBURY
Then, at the end, I move to add the words of the Lords Amendment beginning" the maintenance and clearing of drains, embankments, and ditches" to the proviso. Perhaps you Lordships will give me a little attention in the proviso.

§ LORD LEE OF FAREHAM
Also (e).

§ THE MARQUESS OF SALISBURY
Yes. In the proviso there is a slight Amendment after the word "impossible" in line 5. Your Lordships will remember that on the Third Reading my noble friend Lord Clinton asked to be allowed to put in a manuscript Amendment Which your Lord ships were pleased to rule out of order at that stage. It is now in order to put it in, and it comes in here. Therefore I beg to move, after the word "impossible," to insert "except at prohibitive or unreasonable expense."

§ Amendment moved— In the proviso of the original Lords Amendment, after ("impossible") insert ("except at prohibitive or unreasonable expense").—(The Marquess of Salisbury.)

§ LORD LEE OF FAREHAM
I agree to that.

§ On Question, Amendment to the Commons Amendment agreed to.

§ THE MARQUESS OF SALISBURY
The Lords Amendment as it stands (b), (e), (d), (e) and the proviso will go in, with the addition of the words, "except at prohibitive or unreasonable expense" after the word "impossible." Then I am informed by the draftsman that in the two last paragraphs (i) and (ii) the words should be "maintain or clear drains, embankments, or ditches or"; and then as printed. I beg to move.

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§ Moved accordingly, and on Question, Amendment to the Commons Amendment agreed to.