§ Order of the Day for the Second Reading read.
§ VISCOUNT HALDANE
My Lords, this Bill ought not, I think, to detain your Lordships more than a very brief period. First of all, let me give a word of explanation as to how it comes here. The Bill has passed through the other House by general agreement. It was introduced by a group of eminent lawyers who support the Coalition, and who included one of great distinction, the Solicitor-General for Scotland. It was supported by the Front Opposition Bench generally, including Sir Donald Maclean and the Independent Liberals, and by the Labour Party. I am told that the Bill is also smiled upon by the Government, subject to the omission of a clause which I propose to move in Committee shall be omitted. Therefore, I may deal shortly with the nature of the Bill.
In Scotland, as your Lordships know, land is conveyed in a somewhat different fashion from that which obtains in England. When a conveyance is granted, it is usually by way of a feu-charter, and the feu-charter provides for an annual payment called a feu-duty. There are also what are called "casualties." They are in course of abolition under an Act which your Lordships passed several years ago, but they still exist in feu-charters. These feu-duties have added to them, under the Scottish practice, what are termed "casualties," which are payable on the death of the grantee, and the entry of his successor, or on the death of an heir, or, occasionally at fixed intervals. There are clauses in which these reservations, called duplicands, occur. "Duplicands" means the occasion on which the casualties are payable with something added. These duplicands are expressed in clauses of great variety, and the purpose of this Bill is to give a canon of construction which will enable these clauses to be construed.
It does not seek to alter contracts. What it does seek to do is to lay down a plain rule of construction under which people may know what these clauses mean. The Bill is, therefore, supported, as one would expect, by the great majority—indeed, I know no exceptions—of the prominent legal bodies and business people in Scotland. At present you have often to resort to litigation to determine whether a casualty, 12 which is called a duplicand, consists simply of a repetition of the ordinary feu-duty—if that be so, double the feu-duty is payable—or whether what it means is that the duplicand payable is twice the amount of the feu-duty added to the feu-duty that is due on the occasion. In the latter case three times the amount of the feu-duty is payable. That is a question of great nicety and great difficulty at times, arising on the meaning of the words, and your Lordships have in the recent case of Waddell's Trustees interpreted the charter in such a way as has convinced the public in Scotland that it is desirable to have some plain rule down for construction.
We do not propose to interfere with anybody's liberty to contract differently—if he can get people to contract differently. What we propose is to say that the ordinary words, unless there is something very plain and express, are to mean that the duplicand is to be just what it says—twice the amount of the feu-duty, and not three times the amount of the feu-duty, as it has been construed to be in some cases, and construed not to be in others. It will be a plain rule of construction, which will be excluded if the matter is left in dubio; and, instead of having the expense of litigation, which may come up here and lead to a difference of judicial opinion, there will be a plain statutory rule, or canon of construction, which will regulate things.
As the Bill was drawn there was a clause—and it is in the Bill as it has come up from the other House—making this operate retrospectively, so that, where people have already paid on a construction different from that which will be the construction in the future, should your Lordships pass the Bill, the amount could be got back. But we think it would not be right to take away from people what they have got, and I understand the Government prefer (and it is my own view) that it is better to confine this Bill simply to what it purports to be—a rule of construction, to guide people in their transactions and interpretations—and not as a provision which will make anybody pay back anything he has got, whether he ought to have got it or not. For that reason, when this Bill goes into Committee, I shall move to omit Clause 6, which makes it retrospective. For the rest, the Bill is confined to the canon of construction of which I have spoken, and 13 I ask your Lordships to give it a Second Reading.
§ Moved, That the Bill be now read 2a. —(Viscount Haldane.)
§ THE LORD CHANCELLOR (LORD BIRKENHEAD)
My Lords, the purpose of this Bill is expressed in Clause 4. Your Lordships, sitting in your judicial capacity, arrived at a conclusion in the Waddell case which involved extensive enquiries into the matters which are dealt with by this Bill and the results of those enquiries as embodied in the judgment of your Lordships' House point to the necessity for this Bill. The cases to which the noble Viscount has referred are sometimes no one side of the line and sometimes on the other, and there has been a great opening for legal dissertation and for legitimate division of opinion, even among competent judges, and it is therefore, I think, a great advantage, as the noble and learned Viscount has suggested, that a clear rule should be laid down which might exclude the possibility of doubt in the future. I assent to the methods which it is proposed to adopt in this Bill. I certainly could not have agreed to the proposal that it should be made retrospective in its operation, but the noble and learned Viscount has explained to your Lordships that he is prepared in the Committee stage, if your Lordships give the Bill a Second Reading, to put down an Amendment excluding any possibility of retrospective effect. In these circumstances I would respectfully advise your Lordships to give this Bill a Second Reading.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.