Lords Sitting of 26 March 1923

Preamble
The House met at a quarter past four of the clock, The LORD CHANCELLOR on the Woolsack.

CARRIAGE OF GOODS BY SEA BILL. [H.L.]
THE LORD CHANCELLOR (VISCOUNT CAVE): My Lords, I beg leave to introduce a Bill to amend the law with respect to the carriage of goods by sea, and to move that it be now read a first time.
Moved, That the Bill be now read 1a.—(The Lord Chancellor.)
On Question, Bill read 1a and to be printed.

BOOTLE CORPORATION BILL. [H.L.]
Read 3a, and passed, and sent to the Commons.
GENERAL REVERSIONARY AND INVESTMENT COMPANY BILL. [H.L.]
Read 3a, and passed, and sent to the Commons.
MINISTRY OF HEALTH PROVISIONAL ORDERS (SHEFFIELD WATER CHARGES) CONFIRMATION BILL. [H.L.]
House in Committee (according to Order) on recommitment of the Bill: Bill passed without amendment.

BUSINESS OF THE HOUSE.
THE LORD PRESIDENT or THE COUNCIL (THE MARQUESS OF SALISBURY): My Lords, I beg to make the Motion standing in the name of my noble friend the Leader of the House, namely:—"That Standing Order No. XXI be considered in order to its being suspended for this day's sitting, and that the Committee Stage of the Mines (Working Facilities and Support) Bill [H.L.] have precedence
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of the other Notices and Orders of the day." I might perhaps explain to your Lordships that this Resolution, which, of course, is not an ordinary resolution though it is by no means unprecedented just before an adjournment, is caused by the fact that the Mines (Working Facilities and Support) Bill, an important Bill which interests several of your Lordships, was down for the Committee stage last Thursday, but, owing to the long continuance of the debate in front of it, could not then he taken. It is important that this Bill should pass through its various stages before the Easter adjournment. Full time has been allowed to the House to consider the measure between the several stages. If it were delayed any longer to-day it might be difficult to conclude the Bill as desired. Therefore it is thought right to put it down to-day and to provide ample opportunity for discussing it,
When my noble friend proposed to put down this Motion a Question in the name of my noble friend Lord Astor, an important Question on housing, was on the Paper for to-day, but the noble Viscount has postponed it until after Easter. If the debate on that subject had preceded the Mines (Working Facilities and Support) Bill, the latter might have been reached rather late. I hope your Lordships will understand the reasons why this Motion was put on the Paper. If there were any feeling in any quarter of the House against the proposal I do not think that it would be desirable to press it, but I shall, of course, move it its it stands upon the Order Paper.
Moved, That Standing Order No. XXI be considered in order to its being suspended for this day's sitting, and that the Committee Stage of the Mines (Working Facilities and Support) Bill [H.L.] have precedence of the other Notices and Orders of the Day.—(The Marquess of Salisbury.)
EARL BUXTON: My Lords, I do not think there will be any objection whatever to this Motion. Indeed, it is in conformity with. I will not say an agreement, but an arrangement reached on Thursday, to which I assented on behalf of noble Lords sitting by me. Certainly there will be no objection so far as I am concerned.
LORD ASKWITH: I am moving the Second Reading of the next Bill on the Paper, and I have no objection to the Motion.
THE MARQUESS OF SALISBURY: I am much obliged to the noble Lords.
On Question, Motion agreed to, and ordered accordingly.

MINES (WORKING FACILITIES AND SUPPORT) BILL. [H.L.]
Order of the Day for the House to be put into Committee read.
Moved, That this House do now resolve itself into Committee.—(The Earl of Clarendon.)
On Question, Motion agreed to.
House in Committee accordingly:
[The EARL Of DONOUGHMORE in the Chair.]
Clause 1:
Power to grant right to work minerals which would otherwise be unworkable.
1.—(1) Where there is danger of minerals being left permanently unworked—
(a) by reason of the minerals being comprised in or lying under land which is or has been copyhold land, or land subject to a lease restriction covenant or condition, or otherwise not being capable of being worked without the concurrence of two or more persons;
THE EARL OF CLARENDON THE EARL OF CLARENDON moved, in subsection (1) (a), after "lease," to insert "reservation restriction." The noble Earl said: This is a drafting Amendment, being an amplification of the words already appearing in the Bill. The words may not be necessary, but they are more appropriate in the case of copy-holds, and it is thought desirable that they should be inserted.
Amendment moved—
Page 1, line 15, after ("lease") insert ("reservation restriction").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
Clause 1, as amended, agreed to.
Clauses 2 and 3 agreed to.
Clause 4:
Limitation on power of granting rights.
4.—(1) Neither the right to work minerale nor an ancillary right shall be
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granted under this Act unless the right in question cannot be obtained by private arrangement for any of the following reasons:

(a) that the persons with power to grant the right are numerous or have conflicting interests;

(b) that the persons with power to grant the right, or any of them, cannot be ascertained or cannot be found;

(c)that the persons from whom the right must be obtained, or any of them, have not the necessary powers of disposition, whether by reason of defect in title, legal disability or otherwise;

(d) that the person with power to grant the right unreasonably refuses to grant it or demands terms which, having regard to the circumstances, are unreasonable.

(2) For the purposes of this Part of this Act, a person whose concurrence is necessary for the exercise of a right to work minerals shall be deemed to be a person having power to grant the right, or a person from whom the right must be obtained, as the ease may he.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved, in subsection (1), to leave out "the right in question cannot be obtained," and insert "it is shown that it is not reasonably practicable to obtain the right in question." The noble Earl said: This is a drafting Amendment. The clause as at present drawn might be held to mean that the impossibility of private arrangement must be absolute. The intention is that the Act should apply where a private arrangement is not reasonably possible.
Amendment moved—
Page 3, line 16, leave out ("the right in question cannot be obtained") and insert ("it is shown that it is not reasonably practicable to obtain the right in question").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
Clause 4, as amended, agreed to.
Clause 5:
Applications for rights.
5.—(1) Any person interested in any minerals who is desirous of working, either by himself or through a lessee, those minerals, or any adjoining minerals, and who considers that the circumstances are such that a right to work the minerals can be granted under this Part of this Act, may apply to the Board of Trade for the grant of such a right.
(2) Any person having a right to work any minerals or applying for such a right who, for the purpose of or in connection with working those minerals either by himself or through a lessee, is desirous of obtaining an ancillary right, and who considers that

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the circumstances are such that such an ancillary right can be granted under this Part of this Act, may apply to the Board of Trade for the grant of such a right.
(3) An application under this section shall set forth the circumstances alleged to justify the grant of the right, and shall be in such form, and accompanied by such information verified in such manner, as the Board may direct.
(4) The Board shall consider the application, and shall, unless after communication with such other parties interested (if any) as they may think fit they are of opinion that a primâ facie case is not made out, refer the matter to the Railway and Canal Commission:
Provided that where it is alleged that the right in question cannot be obtained by reason of any person not having the necessary powers of disposition, or having unreasonably refused to grant it, or having demanded terms which are unreasonable, the Board shall not so refer the application to the Commission without first having communicated with that person.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved, in subsection (1), to leave out "interested" and insert "having an interest." The noble Earl said: This is a drafting Amendment. The intention is that the person who has a right to apply must have some legal interest in the property. The words "having an interest" make the meaning clearer.
Amendment moved—
Page 3, line 36, leave out ("interested"):,and insert ("having an interest").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved, in subsection (1), to leave out "apply to the Board of Trade," and insert "send to the Board of Trade an application." The noble Earl said: This Amendment and the next on the Paper are consequential upon each other.
Amendment moved—
Page 3, line 41, leave out ("apply to the Board of Trade") and insert ("send to the Board of Trade an application").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
Amendment moved—
Page 4, lines 7 and 8, leave out ("apply to the Board of Trade") and insert ("send to the Board of Trade an application").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
Clause 5, as amends, agreed to.
Clause 6:
References to Railway and Canal Commission.
6.—(1) 'Where a matter is so referred to the Commission, the Commission shall determine and report to the Board—

(a) in the case of an application for a right to work minerals to which Section one of this Act applies;

(i) whether the minerals in connection with which the application is made are in danger of being left permanently unworked for any of the reasons aforesaid; and

(ii) whether the applicant, if the right to work were granted to him, will be in a position to work and intends to work, either by himself or through a lessee, the a liner:111s in question in a proper manner;

(b) in the case of an application for right to work minerals to which Section two of this Act applies, whether the adjustment of boundaries will reduce the amount of minerals to be left unworked between the mine;.

(c) in the case of an application for an ancillary right, whether the proper and efficient working of the minerals is, or would be, unduly hampered by -the person working the same not having the right applied for;

(d) in any case—

(i) whether the right applied for cannot be obtained by private arrangement for any of the reasons aforesaid; and

(ii) whether the right applied for should be conferred on the applicant, and the nature and duration of such right, and the condition; on which such right should be granted; and

(iii) what compensation or consideration (if any) should be payable by the applicant in respect of the acquisition of the right.

(2) In determining the duration of any right to be, granted, the Commission shall have regard to the time reasonably necessary to enable the minerals to be fully worked, and where the applicant's interest in any minerals in virtue of which he is entitled to make the application is an interest as lessee, the right to be granted shall not extend beyond the duration of his lease.
(3) Where the right applied for is a right to let down the surface, the Commission in determining whether the right should be granted shall have regard to the value of the minerals required for the support of any works or buildings or intended works or buildings on or below the surface as compared with the value of the buildings or works, and as to whether the support of the

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buildings or works or intended works or buildings is in the national interest more important than the working of those minerals.
(4) In determining whether any right should be granted or the conditions upon which any such right should be granted, the Commission shall have regard to all the circumstances of the case and in particular to the extent to which the retention of any minerals is required for the protection of any mines or other works from flooding, or for any other similar purpose, and (so far as relevant) to the royalties, covenants, and conditions reserved by or contained in the applicant's existing mining lease or leases (if any), or customary in mining leases 'in the district.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved, in subsection (1), to leave out from the second "Commission" to the end of subsection (1) and insert
"if satisfied that the requirements of this Part of this Act are complied with in the ease of the applicant, and that it is expedient in the national interest that the right applied for should be granted to him, may, by order, grant the right on such terms and subject to such conditions, and for such period as the Commission may think fit, and upon such an order being made, the right specified in the order shall, subject to the provisions hereinafter contained, vest in the applicant.
"(2) Where such a right is granted, such compensation or consideration as in default of agreement may be determined by the Commission, shall be paid or given by the applicant in respect of the acquisition of the right to such persons as the Commission may determine to be entitled thereto."
The noble Earl said: The effect of this Amendment is to give the power of making orders to the Railway and Canal Commission itself instead of to the Board of Trade upon the recommendation of the Commission. Representations have been made by the Railway and Canal Commission, whom the interests most directly concerned particularly wish to act as the tribunal, that it is not consistent with the prestige of a body of that kind, presided over by a Judge of the High Court, that its decisions should be reversed by the Board of Trade, and the Government have agreed, with the concurrence of the interests mainly concerned, to propose this Amendment. This involves a certain amount of re-arrangement of the existing clauses, but the duties of the Commission in regard to the matters to which they shall have regard in arriving at their decision remain in substance the same.
Amendment moved—
Page 4, line 27, leave out from the second ("Commission") to the end of subsection (1) and insert the said new subsections.—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved, at the end of subsection (3), to insert:
"or
"(b) if there ate no such buildings or works, shall have regard to the extent to which the use of the surface for the purposes for which it is used or is intended to be used will be prejudicially affected by subsidence, and as to whether the support of the surface is in the national interest more important than the working of the minerals required for the support thereof."
The noble Earl said: As the clause now stands the implication is that no regard need be paid to the importance of the surface except in so far as there are buildings or works upon it or intended to be erected upon it. It is obviously right that if in any case the Commission came to the conclusion that the support of the surface, even apart from buildings, was more important than the working of the minerals required for its support, they should not be debarred from deciding accordingly.
Amendment moved—
Page 5, line 35, at end insert the said new paragraph.—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON: The reason of the next Amendment is that the words "for any other similar purpose" in subsection (4) would have to be interpreted properly as relating to "flooding," whereas it might he desirable that it should relate to other matters; for example, ventilation.
Amendment moved—
Page 5 line 42, leave out ("similar") and insert ("mining").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
Clause 6, as amended, agreed to.
Clause 7:
Provisions where several applications in respect of the same rights.
7.—(1) Where separate applications are made by two or more persons for the right to 'e ark the same minerals and are referred to the Commission, the Commission, in addition to the matters aforesaid, shall determine and

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report which, if any, of the applicants is to be preferred, or whether the right to work one part of the minerals should be granted to one applicant and the right to work another part should he granted to another applicant; and in arriving at their determination the Commission shall have regard to the question as to how the minerals can be most conveniently worked, to the respective rights of the applicants in the surface or adjoining minerals, and generally to all the circumstances of the case.
THE EARL OF CLARENDON: The Amendment I move on this clause is merely consequential upon the main Amendment of Clauses 6, 7 and 8, transferring the power of making orders from the Board of Trade to the Railway and Canal Commission.
Amendment moved—
Page 6, lines 8 and 9, leave out ("and report").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
Clause 7, as amended, agreed to.
Clause 8:
Grants Of rights in accordance with the findings of Commission.
8. Where the Commission determine that a right to work or an ancillary right should be granted to an applicant, the Board of Trade may, if they consider it expedient in the national interest to do so, by order grant to him such right as may have been so determined by the Commission, subject to the conditions (if any), including the payment of compensation or consideration, so determined, and thereupon the rights specified in the order shall vest in the applicant:
Provided that the Board shall not make such an Order after the expiration of three months from the date of the determination by the, Commission unless the Commission, on an application made for the purpose, allow a longer interval.
THE EARL of CLARENDON THE EARL of CLARENDON moved to leave out Clause 8. The noble Earl said: The re-arrangement of clauses already explained, on the main Amendment of Clause 6, renders it unnecessary to have a separate Clause 8.
Amendment moved—
Page 6, leave out Clause 8.—(The Earl of Clarendon.)
On Question, Amendment agreed to.
Clause 9:
Restrictions on working minerals required for support.
9.—(1) If any person interested in any land is not entitled to support or sufficient support, whether vertical or lateral, for any
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buildings or works, whether on or below the surface, erected or constructed, or intended to be erected or constructed, on or below the surface, and cannot obtain such support by private arrangement for any of the reasons mentioned in Section 4 of this Act, he may apply to the Board of Trade to impose such restrictions on the working of the minerals under that land and the land adjacent thereto as he may consider necessary to secure sufficient support to the buildings or works.
(4) Where any such case is referred to the Commission, they shall determine and report to the Board—

(a) whether the restrictions applied for cannot be obtained by private arrangement for any of the reasons aforesaid;

(b) whether, having regard to the value of the buildings or works, or the cost of repairing damage likely to be caused thereto by subsidence, as compared with the value of the minerals, or to the importance in the public interest of the erection or preservation of the buildings or works, as compared with the importance in the national interest of the working of the minerals, any restrictions should be placed on the working of the minerals under the buildings or works and the land adjacent thereto; and

(c) the nature and extent of the restrictions either on the quantity or position of the minerals to be worked, or on the methods of working or packing, or otherwise necessary to secure adequate support to the buildings or works or to prevent or minimise damage thereto; and

(d) what compensation or consideration (if any) should be paid in respect of the imposition of such restrictions.

(5) Where the Commission determine that any such restrictions should be imposed, the Board of Trade may, if they consider it expedient in the national interest to do so, by order impose such restrictions as may have been determined by the Commission, subject to the conditions (if any), including the payment of compensation or consideration so determined, and thereupon a right to enforce the restrictions so imposed shall vest in the applicant:
Provided that the Board shall not make such an order after the expiration of three months from the date of the determination by the Commission unless the Commission on an application made for the purpose, allow a longer interval.
(6) For the purposes of this section, where any building or work is an ancient monument within the meaning of the Ancient Monuments (Consolidation) Amendment Act, 1913, and is, in pursuance of that Act, under the guardianship or protection of the

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Commissioners of Works, or 'is under the guardianship of a local authority, the Commissioners of Works or the local authority, as the case may be, shall be deemed to be persons entitled to make an application under this section.
THE EARL OF CLARENDON: My first Amendment on this clause is consequential on the Amendment already passed in Clause 5, page 3, line 36.
Amendment moved—
Page 6, line 38, leave out ("interested") and insert ("having an interest").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON: The next Amendment is consequential on an Amendment made in Clause 4.
Amendment moved—
Page 7, line 3, leave out ("cannot obtain") and insert ("alleges that it is not reasonably practicable to obtain a right to").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON: This is consequential on the Amendment on Clause 5, page 4, lines 7 and 8.
Amendment moved—
Page 7, lines 5 and 6, leave out ("apply to the Board of Trade to impose such restrictions") and insert ("send to the Board of Trade an application that such restrictions may be imposed").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved to omit from subsection (4) all words after "Where any such case is referred to the Commission," and the whole of subsection (5), and to insert:—
"The Commission if satisfied that the requirements of this section are complied with in the case of the applicant, and that it is expedient in the national interest that restrictions should be imposed, may, by order, impose such restrictions, on such terms and subject to such conditions and for such period as the Commission may think just, and upon such order being made the right to enforce the restrictions imposed by the order shall, subject to the provisions hereinafter contained, vest in the applicant.
"(5) Where restrictions are imposed, such compensation or consideration as in default of agreement may be determined by the Commission shall be paid or given by the applicant in respect of the imposition of the restrictions to such persons as the Commission may determine to be entitled thereto.
"(6) The restrictions may be either on the quantity or position of the minerals to be
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worked, or on the methods of working or packing, or otherwise such as may be necessary to secure adequate support to the buildings or works or to prevent or minimise damage thereto.
"(7) In determining whether restrictions should be imposed, the Commission shall have regard to the value of the buildings or works or the cost of repairing damage likely to he caused thereto by subsidence, as compared with the value of the minerals, or to the importance in the national interest of the erection or preservation of the buildings or works, as compared with the importance in the national interest of the working of the minerals."
The noble Earl said: This Amendment consists in a rearrangement of Clause 9, dealing with applications for, and grants of, rights of support similar to that which is explained in the main Amendment to Clauses 6, 7 and 8, dealing with applications for grants of mineral rights and rights ancillary thereto.
Amendment moved—
Page 7, line 28, leave out from ("Commission") to the end of subsection (5) and insert the said new subsections.—(The Earl of Clarendon.)
On Question, Amendment agreed to.
Clause 9, as amended, agreed to.
Clause 10:
Provisions for compensation.
10.—(1) Where the Commission determine that compensation or consideration is payable in respect of the grant of a right to work minerals or any ancillary right, or in respect of the imposition of any restrictions on the working of minerals, and such right or the right to enforce such restrictions is vested in any person under this Part of this Act, such compensation or consideration shall be paid and to such persons as in default of agreement the Commission may determine.
(2) The Commission may determine the amount of compensation or consideration to be paid and the persons to whom it is to be paid either at the time when they determine whether the right should be granted or the restrictions imposed or at any subsequent time.
(3) The compensation or consideration payable in respect of any right, including a right to enforce restrictions, shall he assessed by time Commission on the basis of what would be fair and reasonable between a willing grantor and a willing grantee, having regard to the conditions subject to which the right is or is to be granted.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved to leave out subsection (1). The noble Earl said: The substance of this subsection

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has been incorporated in the Amendments of Clauses 6, 7, and 9.
Amendment moved—
Page 8, lines 34 to 42, leave out subsection (1).—(The Earl of Clarendon.)
On Question, Amendment agreed to.
Amendment moved—
Page 9, line 1, at beginning insert ("Where a right to work minerals or an ancillary right is granted or any restriction on the working of minerals is imposed under this Part of this Act").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
Amendments moved—
Page 9, line 1, after ("amount") insert ("and nature")
Page 9, line 2, after ("paid") insert ("or given")
Page 9, line 3, after ("paid") insert ("or given")
Page 9, line 6, leave out ("payable").—(The Earl of Clarendon.)
On Question, Amendments agreed to.
Clause 10, as amended, agreed to.
Clause 11:
Provisions as to the Railway and Canal Commission.
11.—(1) The provisions of the Railway and Canal Traffic Act, 1884, as amended by any subsequent enactment, relating to the procedure as to the determination of questions under that Act (including the provisions relating to appeals) shall apply to the determination of questions relating to applications under this Act as if they were herein re-enacted and in terms made applicable to the provisions of this Act:
Provided that—

(a) the Commission, in any case in which they think it expedient to do so, may call in the aid of one or more qualified assessors and hear the case wholly or partially with the assistance of such assessors;

(b) the Commission may hold a local inquiry for the purposes of this Part of this Act by any one of their members, or by an officer of the Commission, or other person whom they may direct to hold the same, and the said provisions of the Railway and Canal Traffic Act, 1888 (except the provisions relating to appeals) shall so far as applicable, apply to such inquiries, and any member, officer, or other person directed to hold an inquiry shall have power to administer oaths, and shall report the result of the inquiry to the Commission;

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(c) the discretion of the Commission with respect to costs shall not be limited in the manner provided by Section two of the Railway and Canal Traffic Act, 1894.

(2) The Board of Trade shall give to the Commission such assistance as the Commission may require for the purposes of their duties under this Part of this Act, and shall place at the disposal of the Commission any information in their possession which the Commission may think relevant to the matter before them.
THE DUKE OF BUCCLEUCH THE DUKE OF BUCCLEUCH moved, in subsection (1), after "Provided that," to insert the following new paragraph:—
"(a) The Commission before determining any questions referred to them relating to applications under this Act shall give all persons whom they may consider to be affected by the application an opportunity of being heard thereupon and shall consider any objection or representation which may be duly made."
The noble Duke said: Clause 3 of the Bill provides for the granting of very wide ancillary rights for facilitating the working of minerals. Some of these ancillary rights, particularly the right to dispose of water or other liquid matter, may affect very materially the rights of parties not in the least interested in the working of the minerals. To safeguard the interests of these parties it is desirable that a proviso should be inserted in Clause 11 on the lines of this Amendment so that the Railway and Canal Commission shall give all parties interested reasonable notice of the application and an opportunity of being heard thereon. The English Central Landowners' Association support the Amendment.
It is possible that the Government may suggest that, the proviso should not be pressed as the Commission will naturally do what is required without the necessity of a special provision in the Bill, but there does not appear to be any provisions in the Railway and Canal Traffic Act., 1888, which afford the protection given by the proposed proviso.
Amendment moved—
Page 9, line 30, at end, insert the said proviso.—(The Duke of Buccleuch.)
THE EARL OF CLARENDON: I regret that the Government cannot accept this Amendment, and for this reason, that its acceptance would imply that it is not already the practice Of the Commission to cover the ground suggested by this

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Amendment. Inasmuch as the President of the Commission is a Judge of the High Court I think it is obvious that he can he trusted to do what is right in regard to parties interested in this matter.
THE DUKE OF BUCCLEUCH: The question is whether he has the power. If the noble Earl can assure me on that point I shall be satisfied.
THE EARL OF CLARENDON: My information is that he has the power.
Amendment, by leave, withdrawn.
THE EARL OF CLARENDON: The Amendment which I move at the end of subsection (I) would enable the Com- mission in suitable cases, at their discretion to make use of certain convenient methods which exist in cases under the Lands Clauses Acts, of assessing and distributing the compensation where it is due to several interested parties.
Amendment moved—
Page 10, line 9, at end insert:
"(d) the rules regulating the procedure of the Commission may apply any of the provisions of the Lands Clauses Acts relating to the payment of compensation so far as not inconsistent with the provisions of this Part of this Act."—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved, in subsection (2), after "The Board of Trade," to insert "and any other Government Department." The noble Earl said: It might be more convenient in certain cases where some Department other than the Board of Trade, e.g., the Ministry of Health or Ministry of Agriculture, might have information likely to be useful to the Commission, that that Department should, subject to the views of the Commission, be placed in a position of direct communication with the Commission.
Amendment moved—
Page 10, line 10, after ("Trade") insert ("and any other Government Department").—(The Earl of Clarendon).
On Question, Amendment agreed to.
Clause 11, as amended, agreed to.
Clauses 12 and 13 agreed to.
Clause 14:
Saving of rights under the Railways Clauses Act, &c.
14. Nothing in this Part of this Act shall prejudicially affect the right under the Railways Clauses Consolidation Act, 1845, or any Act modifying that Act, including Part H. of this Act, or any other Act, whether public general, or local and private, of any railway company, local authority or other statutory body to acquire minerals for the purposes of support, or any rights or interests in minerals which may have been acquired by any such company, authority or body, or any right of support from minerals to which any such company, authority or body may be entitled, or any right empowering any such company, authority or body to acquire the rights to which they are entitled directly or indirectly under any special Act or Order relating to the company, authority or body or any statute incorporated therewith, or shall confer on any such company, authority or body a right to acquire under this Part of this Act any rights to prohibit or restrict the working of minerals.
THE EARL OF CLARENDON: I beg to move a drafting Amendment. This clause is intended to cover the case of a canal company as well as of a railway company, and though the words "or other statutory body" are probably sufficient for the purpose the Canal Association have asked that "canal" should be specifically mentioned.
Amendment moved—
Page 10, line 37, after ("railway") insert ("or canal").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
Clause 14, as amended, agreed to.
Clause 15:
Interpretation.
15.—(1) For the purposes of this Part of this Act unless the context otherwise requires—
"Minerals" includes all minerals and substances in or under land obtainable by underground or by surface working;
"Surface" in relation to land includes any buildings, works or things erected, constructed or growing thereon.
"Right to let down the surface" includes a right to let down superincumbent or adjacent strata up to and including the surface.
"Lease" includes underlease or other tenancy and a licence;
"Lessee" includes an underlesse and a licensee.
(2) In the application of this Part of this Act to Scotland for the reference to the Railways Clauses Consolidation Act, 1845, there shall be substituted a reference to the Railways Clauses Consolidation (Scotland) Act, 1845.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved, in subsection (1), to omit "'Lessee' includes an underlessee and a licensee" and insert "and 'lessor' and 'lessee' have corresponding meanings." The noble Earl said: The object of this Amendment is to make it plain that in the case of a lessor as well as of a lessee, the word lease includes a licence.
Amendment moved—
Page 11, line 19, leave out from ("licence") to the end of line 20 and insert ("and 'lessor' and 'lessee' have corresponding meanings") — (The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved, at the end of subsection (1), to insert "'copy-hold land' has the same meaning as in the Law of Property Act 1922." The noble Earl said: This is another drafting Amendment. The object of it is to make it clear that "copyhold land" includes also land of customary tenure.
Amendment moved—
Page 11, line 20, at end insert ("'copy-hold land' has the same meaning as in the Law of Property Act, 1922")—The Earl of Clarendon.)
On Question, Amendment agreed to.
Clause 15, as amended, agreed to.
Clause 16:
Amendment of 8 & 9 Vict. c. 20, ss. 78 to 85 as incorporated in future Acts.
16. The Railways Clauses Consolidation Act, 1845, as incorporated in any Act, order, or other instrument relating to a railway company passed or made after the passing of this Act, shall, except as otherwise expressly provided in that Act, order or instrument, have effect as if for Sections seventy-eight to eighty-five thereof, inclusive, the following provisions were substituted, and as if the First, Second and Third Schedules to this Act were inserted in that Act as the First, Second and Third Schedules thereto.
Conditions under which minerals under railway may be worked.
78.—(1) If the mine owner of minerals lying under an area of protection as hereinafter defined is desirous of working any such minerals, he shall give to the company and also to the royalty owner (if any) notice of his intention so to do at least thirty days before the commencement of the work, and on the receipt of such notice the company and the royalty owner respectively may cause the minerals to he inspected by any person appointed for the purpose by the company or royalty owner as the case may be.
(2) If it appears to the company that the working of any of the minerals to which such notice relates will be likely to damage the railway or works or any part thereof, the company may at any time after the receipt of such notice give a counter-notice to the mine owner requiring him to leave unworked all or any part of such minerals, and the counter-notice shall specify the minerals (hereinafter referred to as the specified minerals) so required to be left unworked and the particular portion of the railway or works (hereinafter referred to as the protected works) for the support of which the specified minerals are required.
(3) Where any such counter-notice has been served on the mine owner, he shall forthwith serve a copy thereof on the royalty owner (if any).
(4) Where any such counter-notice has been served on the mine owner, the specified minerals shall not be worked or got after the service of the notice, and the company shall pay compensation to the mine owner and the royalty owner (if any) for the same being left unworked.
Liability in respect of authorised workings.
79.A.—(1) If a mine owner works any minerals lying under any part of an area of protection in the manlier authorised by this Act he shall nevertheless become liable on demand by the company ((subject as hereinafter provided) to contribute towards the expenses properly incurred, or to be incurred, by the company from time to time thereafter in making good any damage caused by such working to the railway or works of the company (not being protected works comprised in any counter-notice relating to such area of protection) such percentage (if any) of those expenses as may be determined under the First Schedule to this Act according to the depth of the minerals being so worked.
(2) The liability of a mine owner under this section in respect of any part of the railway or works on which such expenditure has been incurred shall not exceed an aggregate sum equivalent to sixpence for each ton of the commercially workable minerals, gotten or ungotten, in such part of any seams which have been or are being worked as lies under the area ascertained as respects the several seams in accordance with the rules contained in the Second Schedule to this Act:
Provided that in ascertaining such aggregate sum as aforesaid minerals gotten more than six years before the date on which a contribution shall have been demanded by the company under this section shall not he reckoned.
(4) The liability of a mine owner under this section shall be subject to the following further limitation as respects damage done by workings in any single mine, that is to say, that when the aggregate of the

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sums paid by the mine owner in satisfaction of such liability amounts to a sum equivalent to sixpence for each ton of commercially workable minerals, gotten or ungotten, in such part of any seams which have been or are being worked as lies within the mine and under an area extending laterally on both sides of the railway or works to a distance ascertained in accordance with Rule 1 of the said Second Schedule and extending longitudinally to a distance co-extensive with the portion of the railway lying over or adjacent to the mine, the mine owner shall not be liable to make any further contribution under this section towards the expenses of making good any damage caused to any part of the railway or works by the working in that mine.
Notices and accounts with, respect to damage.
79B.—(1) When and so far as reasonable and practicable the company shall give notice to the mine owner and the royalty owner (if any) specifying particulars of

(i) the railway or works to which the damage has been caused or to which damage is apprehended, sufficient to enable the mine owner to identify the same;

(ii) the nature of the damage or apprehended damage; and

(iii) the nature of the works intended to be carried out for the purpose of making good or preventing the damage.

Rights of access through specified minerals.
80. If the working of any minerals is prevented under this Act by reason of a counter-notice, a mine owner whose minerals extend so as to lie on both sides of the specified minerals may cut and make such airways, headways, gateways, or water levels through the specified minerals and the strata above or below the same or any of them as may be requisite to enable him to ventilate, drain, and work his remaining minerals; but no such airway, headway, gateway, or water level shall be cut or made upon or so as to injure any part of the protected works, or within forty yards of any other airway, headway, gateway, or water level, nor shall the same be greater than eight feet wide and eight feet high, unless the top of the same is more than one hundred and sixty yards below the average rail level of the protected works, or, if the top exceeds that distance, than thirteen feet wide and eight feet high.
Compensation to surface owners.
82. If any loss or damage is sustained by the owner, lessee, or occupier of the land over any specified minerals (not being the owner or lessee of the specified minerals) by reason of the making of such airway or
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other authorised work aforesaid, where neither that work nor any like work, would have been necessary save on account of the prevention of the working of the minerals, the company shall make full compensation to such owner, lessee, or occupier of the surface for the loss or damage sustained by him, such compensation in default of agreement to be determined by arbitration.
Rights of inspection.
83.—(1) For ascertaining whether or not any minerals are being worked or are about to be or have been worked so as to damage the railway or works of a company, any person appointed by the company may, after at least twenty-four hours notice has been given by the company, enter upon any land (through or near which the railway passes) which the company believe to contain or to have contained such minerals, and may enter into and return from any such minerals or the works connected therewith; and, for that purpose, the person so appointed may make use of any apparatus or machinery belonging to a mine owner, and use all necessary means for discovering the distance from such railway or works to the parts of the minerals which are being or have been worked or are about to be worked; and, after giving a like notice, may inspect and take copies of so much of the working plans and sections of the mine owner as relate to minerals the working whereof affects or has affected or may affect the railway or works.
Savings.
85B.—(1) Nothing in this Act shall affect any agreement between the mine owner and the royalty owner for the payment of any rent or royalty:
Provided that—

(i) the payment of compensation by the company to the royalty owner in respect of any minerals shall extinguish any liability by the mine owner to pay any royalty in respect 'of the same minerals;

(ii) the mine owner shall he entitled to make such deductions as are authorised by subsection (4) of Section 79A of this Act notwithstanding anything in any agreement between him and the royalty owner entered into before the day of nineteen hundred and twenty-three, unless the agreement was made after the twelfth day of December, nineteen hundred and twelve, and expressly or by necessary implication provided for the payment of royalties in respect of the minerals supporting the railway or works in the event of the mine owner working them in virtue of a right acquired by agreement or statute or otherwise, or for the payment of royalties in respect of such minerals whether they are or are not worked;

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(iii) if the exercise by the company of powers conferred upon them by the foregoing provisions of this Act as to minerals in the area of protection will prevent the mine owner from working such quantity of minerals as at the royalties reserved will produce the sum total of the certain or minimum rent remaining payable under the lease, or otherwise occasions serious hardship having regard to the obligation of the mine owner to pay such rent, or owing to any provision in the lease restricting the time within which a deficiency due to previous short working may be made good, such adjustment shall be made between the royalty owner and the mine owner as failing agreement, may be determined by arbitration, and any question whether the circumstances are such as to give rise to such a right of adjustment shall be similarly determined.

Where at the time of the exercise by the company of such power as aforesaid any deficiency duo to previous short working which may be made good in a subsequent period exists, the amount of such deficiency shall be treated as if it formed part of the sum total of the certain or minimum rent remaining payable under the lease.
Serving of notices, counter-notices, &c.
(2) Nothing in this Act shall alter, diminish or affect any right to let down the surface, either unconditionally or subject to payment of compensation, or to any other condition, which a mine owner or royalty owner may possess, whether by statute grant lease agreement or otherwise, derived from a title antecedent to the purchase by the company of their interest in the surface, and a mine owner having such an antecedent title and having served a notice in accordance with this Act with respect to the working of any such minerals, shall be free to work any such minerals, as to which a counter-notice shall not have been received, discharged from all the restrictions and provisions of this Act, other than those contained in subsection (2) of section seventy-nine of the Act, but if a counter-notice is served, the minerals to which such counter-notice relates, shall, for the purposes of the assessment of compensation payable to the mine owner or royalty owner under this Act for leaving the same unworked, be deemed to be minerals lying wholly under the inner area of protection.
85n—(1) In the foregoing provisions of this Act with respect to mines lying under or near a railway, unless the context otherwise requires—
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"Mine owner" includes the owner, lessee, or other person entitled to work and get minerals;
"Seam" in relation to minerals includes bed, lode and vein;
"Surface" in relation to land includes any buildings, works or things erected, constructed, or growing thereon;
"Royalty" includes rent and any other reservation in respect of minerals by the acre, ton or otherwise;
"Royalty owner" includes any person entitled to receive a royalty in respect of minerals;
"Deficiency due to short working" means the amount by which the royalties payable under a loan on the minerals worked fall short of the certain or minimum rent.
"Lease" includes an under-lease or other tenancy and a licence;
"Lessee" includes an under-lessee and a licensee.
THE EARL OF CLARENDON: The first Amendment is a drafting Amendment (in subsection (1) of the substituted Section 78) designed in order to avoid the possibility of confusing mine workings with railway works.
Amendment moved—
Page 12, line leave out ("work") and insert ("working").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON: Another drafting Amendment follows. This is proposed merely to preserve consistency of expression with the earlier part of the same subsection.
Amendment moved—
Page 12, line 19, after ("required") insert ("to be left unworked").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON: The next Amendment (in the new Section 78 (4)) corrects a purely drafting slip.
Amendment moved—
Clause 16, page 12, line 26, leave out ("notice") and insert ("counter-notice").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL of CLARENDON: The next is likewise a drafting Amendment. The word "the," by definitely connecting the area of protection referred to in Section 79 A (1) with the area of protection as defined in page 12, line 29, makes it clear that the area of protection meant is the

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area of protection calculated on the depth of a particular seam.
Amendment moved—
Clause 16, page 14, line 33, leave out ("an") and insert ("the").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON: The next is a drafting Amendment intended to avoid any impression from the words that the percentage is a matter for calculation, instead of being a definitely specified figure.
Amendment moved—
Clause 16, page 14, lines 43 and 44, leave out ("such percentage (if any) of those expenses as may be determined under") and insert ("the appropriate percentage (if any) of those expenses, the appropriate percentage being such as is specified in").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON: The next five Amendments slightly vary the method of arriving at the maximum liability of the mineral interests for damage to the railway or works by authorised working of minerals.
Amendments moved—
Clause 16, page 15, line 7, leave out ("which have been or are being worked")
Clause 16, page 15,Line 10, after ("Act") insert ("being seams which have been or are being worked under such area as aforesaid")
Clause 16, page 15,line 44, and page 16, line 1, leave out ("which have been or are being worked")
Clause 16,page 16, line 7, after the first ("mine") insert ("being seams which have been or are being worked Wider such area as aforesaid")
Clause 16,page 16,line 11, leave out ("workings") and insert ("working of such seams as aforesaid".—(The Earl of Clarendon.)
On Question, Amendments agreed to.
THE EARL of CLARENDON: The next four Amendments are drafting Amendments, and make no change in substance at all.
Amendments moved—
Clause 16, page 17, line 3, after ("any") insert ("affected")
Clause 16, page 17,line 5, leave out the second ("the")
Clause 16, page 17,line 7, after ("apprehended") insert ("from the working of any minerals under the area of protection")
Clause 16, page 17,lines 7 and 8, leave out ("mine owner to identify the same") and insert ("same to he identified").—(The Earl of Clarendon.)
On Question, Amendments agreed to.
THE EARL OF CLARENDON: The next Amendment has been agreed because in certain cases it may be desirable or even necessary that the airway, etc., should be wider than the limits specified in the clause, and it is desired to make it clear that where this can be done without danger to the railway it may be done.
Amendment moved—
Clause 16, page 17, line 37, after ("same") insert ("without the consent of the company (which consent shall not be unreasonably withheld)").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL of CLARENDON: The next Amendment is purely a drafting correction. The word "as" was accidentally omitted.
Amendment moved—
Page 18, line 40, after the first ("work") insert ("as").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON: This is also a drafting correction. It was not intended to provide for the inspection, etc., of the working plans and sections of the mine owner, but of the mine.
Amendment moved—
Page 19, line 25, leave out ("owner").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON: The next Amendment is a drafting correction.
Amendment moved—
Page 20, line 43, leave out ("(4)") and insert ("(3)").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
LORD DYNEVOR LORD DYNEVOR moved, in the substituted Section 85B (i),(ii)to leave out "the day of, nineteen hundred and twenty" and to insert "the first day of November, nineteen hundred and twelve". The noble Lord said: This Amendment and the next one [to omit all words in the substituted Section 85B (i), (ii) after "nineteen hundred and twenty"]—really stand together, the second being to a large extent con sequential on the first. This is the only point on which no agreement has been arrived at in connection with this long and intricate Bill during the many meetings that have been held by the representatives of the Government, the railway companies the mine owners, and

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the royalty owners. May I briefly explain what has led up to the bringing in of Part II of this Bill, which deals with what is commonly known as the Howley Park tunnel case, as otherwise I shall not find it easy to explain my Amendment?
It was generally assumed that under the Act of 1945 railways could only have vertical support for forty yards on each side of the railways against subsidence from mining operations. Some twelve years ago the advisers of the London and North Western Railway Company apparently thought that possibly they had wider rights for lateral support. The Court of Appeal, in what is known as the Howley Park tunnel case—and the decision was confirmed by the House of Lords— gave judgment that the railway company was entitled to lateral support for their line from the strata outside the forty yards. This decision upset altogether what had been considered to be the law before. It affected numerous lettings and the working of minerals, and it would also have a serious effect on future lettings. The contention of the royalty owners, on whose behalf. I move my Amendments, is that mineral leases entered into after the Howley Park tunnel decision given in the House of Lords should not be affected by the Bill.
The mine owners and the royalty owners entered into their agreements and covenants with their eyes fully open. Before that far-reaching decision was given in the House of Lords all parties acknowledge that agreements were entered into under a misapprehension of what the law was, and all of us are ready for leases which were entered into before the House of Lords decision on November 1, 1912, to come under the terms of the Bill, which lays down how much of the compensation money to be paid to the railway companies is to he borne as between the mine owner and the royalty owner. But the Government and the mine owners contend that leases entered into subsequent to the House of Lords decision should also come under the Bill, unless the agreement expressly or by necessary implication provided otherwise, in respect of the minerals supporting the railways.
Why do they ask this? A good draftsman drawing up a lease would not, as a rule, specifically refer to a special case, but would use general wording in refer-
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ring to rents and responsibilities in connection with damage to the surface and the works thereon. He would not specifically refer to railways more than to farmhouses, or to any other buildings. The mineral owners and the royalty owners all had their attention drawn to this question by the decision of the Court of Appeal in April, 1911; and then the House of Lords, on. November 1, 1912, confirmed the decision of the Court of Appeal given one year and a half before. How can the Government and the mine owners contend chat there was any ignorance on the question. The mine owners are a very powerful body, with excellent advisers behind them, and they must have known or the legal decision. Yet they want to upset covenants put into leases entered upon after that legal decision. The royalty owners have already agreed to alter covenants Trade before the legal decision. Surely it is asking rather too much for Parliament to break contracts made when everybody knew the law.
With all due respect to the Government, I cannot quite see why they take sides on this question. It solely concerns the mine owners and the royalty owners. The railways are not concerned: they get their compensation in any case. And the public: are not concerned. It is solely a question between the mine Owners and the royalty owners as to who should pay the compensation to the railway companies. I will now make an appeal to the Government; Will they take off the Government Whips and let a free House vote on this Question, and decide whether bonds and covenants entered into since the Howley Park tunnel decision shall or shall not come under the Bill? I hope that a majority of your Lordships will support in on this Amendment, which I beg to move.
Amendment moved—
Page 21, lines 3 to:5, leave out ("the day of nineteen hundred and twenty")and insert("the first day of November nineteen hundred and twelve").—(Lord Dynevor.)
THE EARL OF CLARENDON: As my noble friend Lord Dynevor has pointed out, this Amendment raises the only serious issue which is still outstanding and upon which it has been impossible up to date to secure agreement. As he has said, it does not affect the railway companies: it affects merely the relation-

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ship between the mine owners and the royalty owners. The basis of the Government proposal is this. As your Lordships are aware, the effect of the Howley Park decision was that minerals required for the support of railways or works were rendered unworkable after that date, and for the reason that the railway company could obtain an injunction and stop the work. It is, therefore, legally impossible that in entering into the general covenants of leases made after that judgment, the parties should have considered that the one was giving, or the other was purchasing, a right to work these particular minerals. Unless there are words in the lease which show that the lessee did, in fact, enter into covenants in respect of these particular minerals, surely it cannot be said that they are covered by the general covenants of the lease.
The principle, therefore, to which this subsection is intended to give effect is that, in the absence of any such words, there was no contract in respect of minerals supporting a railway and that, therefore, there is nothing to prevent mine owners from deducting from the royalty the royalty owner's share of the cost of repairing the railway. This presumption, it seems to us, can only be rebutted by pointing to definite words in the lease which show that the minerals in respect of which the lessee has entered into covenants did, in fact, include the minerals supporting the railway, either on the footing that the lessee would pay a royalty free of any deduction if at any time and by any means he became able to work them or on the footing that he would pay a royalty in any case and take his chance of ever being able to work them. In these cases it is proposed to recognise that there is a contract affecting the minerals supporting the railway, and that if any agreement has been entered into which prohibits any deduction being made or provides for some other form of deduction, then the deductions authorised by Clause 79A of this Bill cannot be made.
My noble friend who moved this Amendment contends, I think, that this proposal in the Bill interferes with the sanctity of contracts made since the date of the Howley Park decision. Our contention is that it does no such thing. What we are trying to say is this: If there were any contracts in respect of
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these particular minerals then they must be preserved. On the other hand, if there were not cadit quæstio. But whether there was or was not in any particular case is a question for the Courts, if necessary, to decide. All that the Legislature can do, and all that the Legislature is trying to do, is to lay down the general principle. The mine owners, I understand, though not completely satisfied with this proviso in Bill—I am informed that they are not particularly in love with it—have nevertheless decided to acquiesce in it. I believe, too, that the Scottish mine owners and Scottish royalty owners will accept it. It is now almost certain that those interests will agree to the inclusion of Scotland in Part II of the Bill. Therefore, the only parties who are now outstanding are the English and Welsh royalty owners.
I believe that my noble friend and those who act with him declare that they entered into these negotiations from the very first on the footing that the new arrangements should not affect the terms of any existing lease, and that their acceptance of the date of the Howley Park judgment as a dividing line was a considerable compromise. I have no desire. I can assure my noble friend, to be in any way discourteous to him or to those who act with him, but we contend that this argument does not hold water, for the simple reason that the underlying principle of the whole of Part II of this Bill is that the three parties interested—namely, the railway companies, the mine owners and the royalty owners—should jointly share in the cost or the contingent cost of releasing these sterilised railway minerals. Complete freedom, however, is allowed in the Bill to contract out of it in future, and I believe that my noble friend and those who act with him admit that they intend to make free use of this freedom. If, in addition to that, they are to avoid all liability for the working of minerals let between the date of the Howley Park judgment and the passing of this Bill into law, can it be said that they are fulfilling their bargain to share in the liabilities attaching to the new arrangement?
In the cases covered by this proviso, the only means by which these minerals could be worked and the only power which the royalty owners possess to

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enforce their working or to receive royalties in payment for them, come from this Bill. Is it unreasonable, therefore, to ask the royalty owners to shoulder the small measure of liability that the general principle of the agreement intended them to bear? If they do not, one of two things will happen. Either they will obtain all the benefits from the minerals being worked without any of the liabilities attaching to the working, which in the aggregate amount only to a small fraction of the royalties payable, or the minerals will remain unworked to the detriment not only of the nation but of the mine owners and the royalty owners themselves.
That is the Government's case, and I venture to think that it is a good one. I think that I am supported in that view by these facts: First of all, that the mine owners, although, as I have already pointed out, they are not particularly enamoured of this proviso in the Bill, are now ready to acquiesce in it; and, secondly, that the Scottish interests are, as I have already mentioned, more than likely to agree to the inclusion of Scotland in Part II of the Bill. There is only one farther point with which I have to deal before I sit down. It is this. My noble friend, in his concluding remarks, made an appeal to me to remove the Government Whips upon this particular Amendment. The Government point of view is that it is wiser, all things considered, to adhere to the words as printed in the Bill, but at this stage of the discussion it is not our intention either to say a member nay or to give him an answer in the affirmative. We prefer to leave it a matter open for consideration till a later stage in the discussion which will probably ensue.
LORD GAINFORD: My Lords, the first point I want to make may appear for the moment to be somewhat irrelevant, but the first Part of the Bill, which we have already passed through Committee, deals with a large number of proposals very similar to those which your Lord ships passed through this House when you give your assent in 1920 to a Bill introduced by me having for its object the liberation of a large quantity of coal that was alleged by those who were in favour of nationalisation to be retained underground contrary to the national interest. Their great argument for nationalisation was that royalty owners
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and mine owners were so working the royalties as to deprive the community of a great deal of coal which might be emancipated and worked to the advantage of the nation.
When we come to Part II of the Bill we are dealing with the peculiar instance of coal which, as a result of the Howley Park decision, has been retained underground. That coal, under the decision of the House of Lords to which reference was made by Lord Dynevor, cannot be worked because, it is coal required for the support of railway works. The law was fairly simple in 1845, when only the highest seams of vial were worked, and lateral support to the extent of forty yards was permitted to the railway companies under their railway works. The decision of the Howley Park ease secured to the railway companies much additional lateral coal in the deeper coal seams, and under that decision it has been quite impossible for the mine owner to work a great deal of coal which otherwise might have been worked. That has deprived the mine owner of his profit and the royalty owner of his royalty rent.
When the matter was discussed first of all by Lord Haldane's Coal Conservation Committee they came to the conclusion that a great deal of this coal ought to be worked. Lord Haldane's Committee referred to the fact that the coal was being retained underground, and expressed the opinion that that was detrimental to the interests of the country. When Mr. Leslie Scott—now Sir Leslie Scott—presided over the Committee on the Equalisation and Valuation of Land in 1919 he reported that this coal ought to be worked, and suggested that the railway companies, the mine owners and the royalty owners should come together, and arrive at an agreement. The Government have in this Bill adopted the recommendation of Sir Leslie Scott's Committee, and they have come to an agreement on every point except this one to which Lord Dynevor has referred. But it is not the grasping coal owner who is suggesting that he should deduct from his payment to the royalty owner an amount which might be twopence in the ton in respect of any damage which may have to be paid for subsidence to the railway company. Sir Leslie Scott's Committee recommended the particular

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suggestion which is contained in this clause.
I need not refer to the names of those who sat on the Committee, but there were a large number of influential gentlemen on it, representing colliery owners, royalty owners, land owners, mining interests, and those persons who may be designated by the description "the man in the street." These were men without prejudice, and they all recommended that in the event of an agreement being arrived at, and a certain cost being added to the mine owner through his working coal which he had hitherto been deprived of the opportunity of working under the Howley Park decision, one equal third part (as Sir Leslie Scott's Committee says) of any such amount payable to the railway company by the person working the mines shall be borne and paid by the lessor or licensor in the case of any mines worked by any lessee, tenant, or licensee. Therefore the suggestion upon which the Government has based their Bill really comes from Sir Leslie Scot is Committee, and does not emanate from the coal owners.
It was in consequence of the views so expressed that we have come to an arrangement with the Government and with the railway companies that we should be allowed to obtain from the royalty owner one-third of the sixpence which is the maximum amount payable to the railway companies for damage in consequence of subsidence. I do not know whether it has been made quite clear to the Committee. The matter may be put in this way. In the event of any subsidence occurring when this coal is worked, the railway company say: "As you are going to allow us to have all the support we require, we will allow you by pillar workings or otherwise to work coal which now has to remain underground. For that concession we will limit you mine owners to an increased cost of sixpence per ton for the coal which you work in order to make good any damage which may occur." The matter is really one of small magnitude to royalty owners. In most cases no damage will accrue, but if it does accrue it will be limited to a maximum payment in the case of the royalty owner of twopence per ton. It may be that it will only be a fraction of a penny that the royalty owner will have to pay. A larger amount will have to be paid by
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the mine owner. Therefore we are all interested in seeing that no severe subsidence takes place, but we have a small risk to run. This coal would not be worked if it were not for an agreement arrived at between the royalty owners, the mine owners and the railway companies.
This is only one outstanding point, but it is a point on which the mine owners feel very strongly. They feel that when an additional cost and burden is placed upon them in connection with the working of their coal, and when they are going to secure an additional quantity of coal upon which royalty will be paid for the benefit of royalty owners, it is only fair that the royalty owners should contribute their small proportion of any additional cost that the mine owners will have to pay in the form of compensation to the railway companies in the event of subsidences taking place.
I am surprised that the Welsh members of your Lordships' House should raise this point because they get a much higher royalty rent than any other coal owners in the country. The average royalty rent paid in Wales is 8.41 d., while the average royalty rent throughout the country is 6.43 d. If the average damage is going to be only one penny the Welsh royalty owner is going to get a substantial royalty rent, and it is unfair to the coal owner who works the coal that he should have to pay the whole of the compensation to the railway company when both parties are going to benefit.
One of the greatest arguments we have against the nationalisation of mineral royalties is the fact that royalty owners have met mine owners in a way which would have been quite impossible if there had been state ownership of royalties. Whenever we have appealed to them to meet us there has always been elasticity in connection with our agreements, and they have helped the industry from time to time. We have endeavoured to be fair to the royalty owners. We have worked smoothly and well together. If it went out to the public that to-day royalty owners are not prepared to contribute their fair share towards the expenditure which has been incurred in emancipating a small portion of coal now retained underground in support of railways, a big handle would be given to those who advocate the nationalisation of royalties. On this ground, and also on those I have

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previously mentioned, I hope your Lordships will support the Government, the railway companies and the mine owners, in the view they have taken on this matter.
LORD STUART OF WORTLEY: The principles laid down by the noble Lord who has just spoken would be as excellent, both in respect of justice and of policy, as one could wish, if it were not for the fact that he seems to have forgotten that, far from its being the case that royalty owners have made no concessions and have accepted no burden, they have agreed that these deductions shall be made in all the cases of old leases, pre-Howley Park judgment leases, pre-1912 leases; and I do not think I shall be going too far if I estimate that that refers to a large majority of the leases and a majority of the coal now being worked.
LORD GALNFORD: On the contrary. I am told that 90 per cent. would be wiped out by this Amendment.
LORD STUART OF WORTLEY: It is necessary that the House should understand that we are dealing only with post-1912 leases. As regards old leases royalty owners have consented to the concessions which have been demanded, and which we submit were all that we premised. It is necessary to dwell upon this because the. Bill is most difficult to understand. From the point of view of draftsmanship you first have the preseribings or the Bill; then you have the savings of the Bill in substituted Section 85B, which take out of the Bill something which would otherwise be operated upon. Then you have the overridings of the savings by proviso: and then "unless," which makes a great hole in the proviso: and nobody can get the benefit of the "unless" unless he has two qualifications, the requirement of which is cumulative. Then one of the eumulatives is split up into two alternatives. It is in that position of draftsmanship that ordinary lay members of this House are being asked to understand this Bill. Therefore, I do not think I am doing wrong in dealing with the unfair impression left on the House that royalty owners have made no concession, no advance in this matter.
I doubt whether many royalty owners have, since 1912, made any alteration
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whatever in the forms of their leases and covenants; whether they have, in fact, put in any of these special words of precaution and of definition, so as to carry all the implications which are spoken of in the lines which my noble friend proposes to leave out. Consequentially, in the case of all these royalty owners the Bill, as introduced, would override, to the extent of permitting deductions from royalties, all their leases up to the passing of this Bill as an Act, in 1923, and not merely leases granted before the Howley Park judgment in 1912. The Amendment takes no account of the passing of this Bill and would exempt from deductions all royalties under leases, however expressed or granted, by whatever royalty owner after the Howley Park judgment. It limits the overriding words of substituted Section 85B (ii) to the leases granted before that judgment and it leaves to all the post-1912 leases the full benefit of the savings in the words which the substituted section sets out.
I represent some large royalty owners who, like some others, have not inserted in their post-1912 leases any new words, but have proceeded on the old footing with the consent of the other parties concerned; and I prefer the Amendment to the Bill. I think all royalty owners, whatever their post-1912 demises may say, however they may be expressed, are well justified in expressing the same preference. These post-1912 circumstances must have been well understood by mining adventurers. I take that expression from the Statute relating to Cornish mines, because I think it reminds the House rather of the two parties to this bargain. One has, and the other has not, undertaken to bear the risks and reap the profit of the industry. The post-1912 circumstances have been well understood by the adventurers, who are well able to take care of themselves, and they do not justify our imposing on royalty owners these new special and rather artificial precautions in draftsmanship to meet unforeseen statutory conditions which bring down upon these ex post facto requirements.
Speaking for these whom I represent, I prefer that this Amendment should be agreed to, but I may say that I would prefer an unamended Bill to no Bill at all. The Bill, after all, does give a prospect of clarified relations, of damage

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prevented, of disputes and litigations avoided. And I do not see why, as some suggest, the acceptance of this Amendment should in any way endanger the passage of the Bill. The Amendment not only simplifies the language of the clause but it does so in a way which appeals not only to the understanding of the people but also to their sense of justice.
On the question of justice, of course, we come to the debatable ground. I think it was the present Dean of St. Paul's who said that justice is of two kinds; one consists of counting heads, and the other of breaking heads. There are other kinds of justice it is true, far more elusive of our pursuit, but it is those kinds of which we are in search to-day. If I understood aright the remarks of my noble friend in charge of the Bill on the question of justice, he has really only two substantial arguments. The first is that this coal which is now in dispute was never demised. Surely that cannot be contended. What was the policy and provision of the Act of 1845? The coal was still in the lessor, although it underlay the railway. Parliament expressly refrained from asking the railway company then to proceed to the purchase of that coal, for to do so would have been to burden these nascent industries with an expense which, in consequence of the coal never becoming necessary to the support of the railway, might be entirely fruitless. In the second place, the whole ownership of that coal, as I read the Act of 1845, was left in the coal owners: and the railway companies can be called upon to buy—and therefore to exclude it from working—and to compensate the royalty owners or the mine owners, whichever it might be, for the loss of that coal, only at such time, if it ever arrived, as it should be found that the coal was really necessary to the working of the railway.
The only other point raised by my noble friend in charge of the Bill was the alleged promise to share the burdens. I have shown that, as regards the old leases, there is this promise to share the burdens, but as regards the new leases, they were made after the Howley Park judgment. Can it possibly be said that bodies so well equipped as the Mining Association of Great Britain or any associations which answer for the adventurers of this great industry are so
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imperfectly informed of what is going on around them that they were not capable of taking care that these new leases, made in this new state of the law should properly safeguard their interests? I entirely refuse to believe anything of the kind. Your Lordships must remember that these precautions and provisions can be made either by express words, as hinted and enacted in the Bill, or by necessary implications, or, indeed, by nothing more apparent than the quantum of some dues to be paid or dues to be withheld, which might speak for themselves, though not by a necessary implication and not by an express provision.
In those circumstances I think it must be seen that all necessary safeguards have been provided, and I really do not see how it can be contended that these large numbers of persons have been left in this unprotected state or are going to be asked to suffer any unjust burden. I would rather have an unamended Bill than no Bill at all, but if this Amendment is pushed to a Division. I shall certainly support my noble friend in the Lobby.
THE EARL OF JERSEY: My Lords, I should like to say a few words in support of the Amendment. My noble friend in charge of the Bill put the ease so clearly and fairly on the Second Reading that I should like, if I may, to quote what he then said. His words were:
"The royalty owners agree that no covenants in leases made before the Howley Park judgment ought to prevent deductions from being made, but that in leases made after the Howley Park judgment every lessee must be presumed to have understood the law, and if he agreed to pay rent without any deduction whatever, or to indemnify the lessor against any claims for damage done to the surface, he then should be held to his bargain and not allowed to make any deductions whatsoever."
That really is the whole point before your Lordships' House this afternoon.
There is always a very natural reluctance to agree that any existing contracts should be voided, but in this instance, as a compromise, royalty owners conceded the contention that before the Howley Park decision it was possible, and, indeed, probable, that contracts had been entered into without full appreciation of the legal position, and that consequently a fresh situation might fairly be assumed to have arisen and the contracts

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made before that date might therefore be reviewed. But thenceforward, from the date of that decision, those concerned in drafting mineral leases had every opportunity of knowing the law; they may fairly be assumed to have known the law; they ought to have known the law. I suggest that it is a very poor compliment to these eminent gentlemen to suggest that they could have been in any doubt as to the legal situation at that time.
As has been already pointed out to your Lordships, eighteen months elapsed between the decision of the Court of Appeal and the confirmation of that decision by the House of Lords. During these eighteen months this was a matter that was very widely discussed and debated, and there, seems to me to be no possible reason in equity why any leases or contracts drafted or entered into after that date should be interfered with if they were made with full knowledge of the liability attaching to coal required for the support of railways in what is known as the outer area, and I agree most cordially with my noble friend that those provisions should stand. May I emphasise what has already been said, that this is not a question which in any way affects the national interest? It does not affect the taxpayer and it does not affect the consumer. Your Lordships are asked to decide what is equitable as between the owners of minerals and their lessees, and I take this opportunity of endorsing the appeal that your Lordships may be invited to give a free, unfettered decision on that point.
Let me now turn for a moment to one or two observations that have fallen from noble Lords who have already spoken. The noble Earl in charge of the Bill suggested, if I understood him aright, that an Amendment such as this would prevent the minerals being worked. Surely that is going rather far. As I understand it, the question is not whether the minerals shall be worked, but who is to pay compensation to the railways in connection with those minerals. The noble Lord, Lord Gainford, and, I think, the noble Earl in charge of the Bill rather suggested that royalty owners had not made any concessions, or at any rate had made very small concessions. I really think that royalty owners have made very considerable concessions, as will be seen if all the various points of
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the Bill are carefully analysed. As the noble Lord who spoke immediately before me has already said, there are a great many leases which were entered into before 1912. I have not the advantage possessed by Lord Gainford of being able to quote figures, and I am not prepared to say anything as to the percentages which he named, but it seems to me that it is an undoubted fact that royalty owners have expressed their willingness to agree that the contracts entered into before 1912 should be varied in accordance with the present proposals.
The noble Earl in charge of the Bill said that he understood that the Scottish mineral owners were prepared to accept. I think the exact words he used were that they were prepared to come in under Part II of the Bill, and, by implication, he gave your Lordships to understand that they were prepared to accept the Bill as it stood, and that they did not favour the Amendment. That was an inferenee I could lot but draw from the noble Earl's speech.
THE EARL OF CLARENDON: I hope the noble Earl will excuse me if I interrupt him for moment. I meant to imply that it was practically certain that the Scottish interests would come in and allow Scotland to be included in the Bill. They are considering the matter now, and it is fair to assume that they will be included.
THE EARL OF JERSEY: The noble Earl has the advantage of me, because I have not had the benefit of any such information, and possibly the Scottish royalty owners may enlighten us at a later stage of the debate. Then the noble Lord, Lord Gainford, suggested that the royalty owners were seeking to avoid their obligations. I was rather surprised that he should make that suggestion. He further stated that the attitude adopted by those who support the Amendment would place a weapon in the hands of those who advocate nationalisation. I cannot think that any fair-minded opponent of private ownership would take that view if he really studied the question in detail, and I am rather sorry that the noble Lord made a suggestion which might appeal to a casual reader. Those who are seeking to avoid their obligations are those for whom the noble Lord speaks. They see at the present moment an

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opportunity of transferring to others the liabilities which they have knowingly entered into with their eyes open. I trust that that is not the spirit in which this question will be decided. I think we want to arrive at a fair adjustment, both for the past and for the future.
May I say one word about the proviso? It really is not satisfactory, and I rill endeavour to point out why it is not satisfactory. It may seem fair on the face of it, but it would entail endless litigation. In connection with practically every mineral contract entered into in the last ten years, the question would arise whether it came within the scope of the proviso. That could only be settled in the Courts, and I cannot imagine anything more unsatisfactory to all parties than the uncertainty which would therefore arise. The avowed object of the Bill is to do away with disputes and ensure harmony, but I fear that if we were to rely on the proviso we should arrive at exactly the opposite effect. I suggest that the date proposed by the noble Lord who moved the Amendment is a far more proper and reasonable dividing line. I suggest that this Amendment is really the only equitable solution of what has been a very difficult and very contentious question. An agreement has happily been arrived at on every other point. The royalty owners have made considerable concessions, and have yielded much, so as to reach a compromise and facilitate the passage of the Bill, but on this point they feel that they must press for fair play and equitable treatment. For that reason I cordially support the Amendment.
THE LORD CHANCELLOR: I think it might be convenient if I said a few words on the Amendment, because obviously it is a very difficult and complex point, and those who are neither coal owners nor royalty owners—and I have the misfortune to be neither the one nor the other—have to act as arbitrators between the two classes. I am sure that all we desire is that the just thing should be done, and that fair play and equity should be meted out to both sides. It is essential to bear in mind that we are dealing in this Amendment solely and entirely with minerals which, but for this Bill, could not be worked at all. That is vital, because they must be minerals which are necessary for the sup-
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port of the railway, and therefore unworkable; otherwise the question of compensation could never arise.
Therefore, we are dealing with minerals which to-day cannot by law be worked. And the arrangement embodied in the Bill is this: that by a system of notices and counter-notices the coal owner is enabled to work these minerals, and, incidentally, the royalty owners are I enabled to get a share of the proceeds which arise; but it does that upon the condition that if, contrary to expectation, the railway is let down by the removal of those minerals released by the Bill, the coal owner shall contribute to making good the damage up to a maximum of sixpence per ton of the coal affected. It further provides that in that case the royalty owners shall hear one-third of that contribution, up to a maximum in their case of twopence per ton of the coal affected.
That seems to us a reasonable and proper arrangement, but the noble Lord who moved the Amendment says, in effect: It is all very well, but we have granted leases since the Howley Park case, and therefore at a time when everybody knew the law: in those leases we reserve royalties, with the provision that they shall be without deduction. Therefore, if you deduct this twopence per ton, you are running counter to the provisions of those leases which were entered into at a time when everybody must be considered to have known what the law was. They say that that is breaking the contract, and is unfair. Is it? That really is the point. The answer which the noble Earl, Lord Clarendon, gives, and which seems to have great force, is this: No, when you reserved that royalty without deduction you cannot have meant without deduction in case of your working these minerals, because you knew that you could not work these minerals and therefore you cannot have had these minerals in your mind when you made your contract. If you construe the contract properly it did not apply to these minerals, and therefore it is not breaking the contract to make special provision when those minerals are worked. It is only under this Bill that these minerals can be worked, and the royalty owners get a penny out of them.
The point therefore is this: Is the lessor entitled, in fairness and equity, to take

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the benefit of the Bill, to take his royalty, earned only under the Bill, until trouble occurs, and then, if and when trouble occurs, to say,"Oh I have nothing to do with that, and I will not shoulder my share of the burden"? If he succeeds in that contention it appears to me, looking at the matter quite impartially, that he gets something for nothing. He gets royalties under the Bill which otherwise he could not get, and if the getting of them leads to an accident to the railway he will not bear even the lighter share of the compensation, the twopence per ton. I think if you put it in that way the noble Lord will see that there is really no desire to do what is unfair.
The difficult thing is to get a fair solution of this very difficult and complicated problem, and so far as I can see the Bill does do what is just. Of course, if there is any contract which points to these very minerals, and says that if they are worked and damage ensues the royalty owner will contribute nothing out of his royalty, then that contract has to stand. I agree that it is unlikely that in any old leases you will find such an express contract, because the matter was not then being debated, but it may well be that when the whole thing was being debated they may have said: "Well, we must provide against this; we will put in our lease an express covenant which prevents our contributing to the compensation in the event of this arrangement going through and the railways being let down." If that has been done the Bill respects it, and it has to remain binding on all parties. It is only if there is no such express contract that the Bill operates. With that comment from me we are quite prepared to leave to the House the decision, but I believe that, as fair arbitrators, your Lordships will probably find it right to reject the Amendment.
LORD LAMINGTON: May I ask on what authority it is said that the Scottish royalty owners have more or less acquicsced in this provision? I am a very small royalty owner, but I never heard anything about it. The Lord Chancellor said that only one-third of our royalty would be payable under the Bill—
THE LORD CHANCELLOR: One-third of the mine owners' contribution to the damage, up to twopence per ton, or one-third of the royalty.
LORD LAMINGTON: In that case it will take the whole of my royalty, and something more. In Scotland the royalty owners pay half the rates of the parish, the district, or the county council on the royalties paid to them. His is quite unlike the case of the English royalty owner. I cannot imagine that the Scottish royalty owners would not agree to the insertion of this proposed Amendment, because the provision of the Bill would press very heavily upon them.
THE DUKE OF BUCCLEUCH: I should point out that the objection is from the Scottish coalmasters. My noble friend in charge of the Bill may have information about the Scottish royalty owners, but I have heard nothing about it, and I am quite convinced that, if they were asked, every one of them would be in favour of this Amendment. This provision would affect a Scottish royalty owner very much more seriously than an English royalty owner. Suppose the royalty is threepence they might have to pay twopence out of that. They will have had to pay the rates beforehand, and the amount required of them will not be a very small but a very largo proportion, compared to that which the coalmaster, whose profits are probably very much higher, will have to pay.
THE LORD CHANCELLOR: I ought to have said twopence per ton, or one-third of the royalty on the minerals affected, whichever is the smaller. It cannot be more than one-third of the royalty.
THE DUKE OF BUCCLEUCH: I understood the noble and learned Viscount to say it was one-third of what the coalmasters have to pay.
THE LORD CHANCELLOR: With that maximum.
THE DUKE OF BUCCLEUCH: I repeat that I do not think it would be right to assume that the Scottish mineral owners would be in favour of the Government and against the Amendment; indeed, quite the contrary.
LORD STUART OF WORTLEY: With the greatest trepidation I rise to dispose of the point put by the noble and learned Viscount, the Lord Chancellor. After all,

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his point was one of policy, not of law. This Bill does not, ipso facto exclude from working any coal.
THE EARL OF CLARENDON: It brings it in.
LORD STUART OF WORTLEY: It makes it necessary for the parties themselves to move. After they have moved it may well be that the coal may be left in working and not be found to be necessary to the support of the railway; and that is just one of the circumstances which these extremely well-informed and well-equipped and able parties must be supposed to have taken into account after the law was defined in 1912.
THE EARL OF CLARENDON: In reply to the questions put to me by Lord Lamington and the noble Duke may I say that the source of my information in regard to the Scottish mine owners and royalty owners is the Mines Department of the Board of Trade, who have been taking part in all these discussions for a very long time.
Resolved in the affirmative, and Amendment disagreed to accordingly.
THE EARL OF CLARENDON: The next Amendment in my name is merely a correction. The date of the Howley Park judgment was November 1, 1912, and not December 12.
THE DUKE OF BUCCLEUCH: It was not the royalty owners who objected, but the coalmasters, I understand.
LORD DYNEVOR: Nothing that has been said in this debate has made me change my view. My noble friend Lord Gainford made one remark to which I should like to reply. He expressed surprise that a Welsh royalty owner should be making this proposal because, he said, the average royalty in Wales was eightpence per ton. I am not in a position to say whether that figure is correct or not. I certainly do not get an average of eightpence per ton. In fact, I was called before the Coal Commission a few years ago to give evidence as a royalty owner, and when I was asked what was the average royalty I received at that time I am nearly certain (though I have not the figures) that the average was 4¾d. per ton on my estate. I do not want it to go forth that I am a royalty owner getting an average of eightpence per ton.
On Question, Whether the words proposed to be left out shall stand part of the Clause?—
Their Lordships divided:—Contents, 36: Not-Contents, 27.

CONTENTS.

Cave, V. (L. Chancellor.)

Harrowby, E.

Emmott, L.

Salisbury, M. (L. President.)

Lucan, E.

Gainford. L. [Teller.]

Devonshire, D.

Malmesbury, E.

Harris, L.

Sutherland, D.

Wicklow, E.

Kilmarnock, L. (E. Erroll.)

Bath, M.

Chelmsford, V.

Kylsant, L. [Teller.]

Lansdowne, M.

Goschen, V.

Romilly, L.

Shaftesbury, E. (L. Steward.)

Grey of Fallodon, V.

Rotherham, L.

Cromer, E. (L. Chamberlain.)

Novar, V.

Saltoun, L.

Albemarle, E.

Annesley, L. (V. Valentia.)

Somerleyton, L.

Ancastor, E.

Askwith, L.

Sudley, L. (E. Arran.)

Buxton, E.

Chaworth, L. (E. Meath.)

Walsingham, L.

Clarendon, E.

Daryngton, L.

Wharton, L.

NOT-CONTENTS.

Argyll, D.

Allendale, V.

Hylton, L.

Northumberland, D.

Finlay, V.

Lamington, L.

Bradford, E.

Hutchinson, V. (E. Donoughmore.)

Northbourne, L.

Dartmouth, E.

O'Hagan, L.

Doncaster, E. (D. Buccleuch and Queensberry.)

Aberdare, L.

Oranmore and Browne, L.

Blythswood, L.

Sandhurst, L.

Iveagh, E.

Dynevor, L. [Teller.]

Stafford, L.

Jersey, E. [Teller.]

Elphinstone, L.

Strachie, L.

Midleton, E.

Fairfax of Cameron, L.

Stuart of Wortley, L.

Strafford, E.

Hastings, L.

Amendment moved—
Page 21, line 6, leave out ("twelfth day of December") and insert ("first day of November").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON: The next Amendment is purely drafting.
Amendment moved—
Page 21, line 43, after ("treated") insert ("for the purposes of this proviso").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved, in the substituted Section 85 B (2), to leave out "purchase" and insert "acquisition." The noble Earl said: This is a drafting Amendment. "Purchase" might not be the appropriate word in cases; for example, where a railway company's interest in the surface is a wayleave.
Amendment moved—
Page 22, line 7, leave out ("purchase") and insert ("acquisition").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved, in the substituted Section 85 B (2), to leave out the word "surface" where that word occurs for the second time, and insert "or conferred on him by a reservation contained in the grant to the company." The noble Earl said: It is proposed to add these words to make it clear that this subsection applies in cases where the mine owner or royalty owner possesses a right to let down the surface in virtue of a reservation made upon, but, strictly, speaking, not antecedent to, the grant to the railway.
Amendment moved—
Page 22, line 8, after ("surface") insert the said words.—(The Earl of Clarendon.)
On Question, Amendment agreed to
THE EARL OF CLARENDON: The next Amendment is consequential on that which your Lordships have just accepted.
Amendment moved—
Page 22, line 9, leave but ("an antecedent") and insert ("a").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved, in the substituted Section 85 B (2), to leave out "such" where that word occurs for the second time. The noble Earl said: This is a drafting correction. "Such" is inappropriate here because there has been no previous mention of minerals in this subsection.
Amendment moved—
Page 22, line 11, leave out ("such").(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON: The object of the next Amendment is to correct a printer's error.
Amendment moved—
Page 23, line 8, leave out ("loan on") and insert ("lease of").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
Clause 16, as amended, agreed to.
Clause 17:
Application to existing railways, &c.
(3) Any mine owner shall be liable to contribute towards the expenses properly incurred by the railway company subsequent to the commencement of this Act in making good damage caused to any railway or works of the company by any working of minerals prior to the commencement of this Act in like manner as if this Act had been in force at the date of such working; but save as aforesaid the mine owner shall be relieved of all liability to the company with respect to the working of any minerals prior to the passing of this Act except a liability arising under an arrangement with the company.
The provisions of subsections (2), (3), (4), and (5) of Section 79A of the Railways Clauses Consolidation Act, 1845, as amended by this Act, shall apply in respect a the liability of a mine owner under this subsection in like manner as they apply in respect of his liability under that section.
THE EARL OF CLARENDON THE EARL OF CLARENDON moved, in subsection (3), to leave out "prior to" and insert "within the six years immediately preceding." The noble Earl said: This Amendment should have specified six years and not six months. It is a drafting Amendment to make it clear that any claim that is made must be made within six years.
Amendment moved—
Page 24, line 42 page 25, line 1, leave out ("prior to") and insert ("within the six years immediately preceding").—(The Earl of Clarendon.)
On Question, Amendment agreed to.
THE EARL OF CLARENDON: The next Amendment is merely drafting.
Amendment moved—
Page 25, line 7, leave out ("and (5)") and insert ("(5) and (6)").—(The Earl of Clarendon.
On Question, Amendment agreed to.
Clause 17, as amended, agreed to.
Remaining clause agreed to.
The Schedules agreed to,

GUARDIANSHIP OF INFANTS BILL. [H.L.]
Order of the Day for the Second Reading read.
LORD ASKWITH: My Lords, it will not be necessary, I trust, to detain your Lordships very long over the clauses of this Bill. The Bill proposes to deal with the position of women and the rights and responsibilities of parents in regard to the guardianship, custody and maintenance of infants. It provides that the mother of every legitimate infant shall be guardian jointly with the father for all purposes, and shall have equal authority, rights and responsibilities. It also provides that both the parents of every legitimate infant shall be liable for the maintenance and education of that infant according to their means. The rest of the Bill is machinery, and is rather long owing to the insertion of the Scottish provisions.
The Bill is similar in principle to that which was introduced last year. It has since been deprived of some of the frills and furbelows and put into a more working dress, owing to the evidence that was given before the Joint Select Committee of both Houses. The reason for my suggestion that it may not be necessary to detain your Lordships is this. Two years ago in another place the principle was accepted on Second Reading. Last year your Lordships accepted the principle and gave the Bill a Second Reading, and both Houses of Parliament referred it to a Joint Select Committee. That Committee sat for three days and heard a great deal of evidence, but they had not completed their work by the end of the Session. Owing to the shortness of last Session the Bill was not introduced; but in its new and clearer form I ask your Lordships to give it a Second Reading.
If it is read a second time, I propose that it should go, with the concurrence of another place, to a Joint Select Committee. The six Peers who were members of that Committee are all willing to continue their work, and the permanency of your Lordships' House will allow them to sit; but the Members from the other House may have to be changed. Yet it should be practically the same Committee and should be able to continue the task of
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taking evidence upon this not uninteresting subject. I beg to move that the Bill be read a second time.
Moved, That the Bill be now read 2a.—(Lord Askwith.)
THE LORD CHANCELLOR: Lords, it is convenient that I should state at once what course His Majesty's Government propose to take in this matter. It is the fact, as the noble Lord has said, that a similar Bill was last year referred to a Joint Select Committee. The Committee proceeded some way, but its deliberations were interrupted by events leading up to the Dissolution. It, therefore, did not come to the end of the Bill. If your Lordships think it right that the Bill should again receive a Second Reading, and go back to the same or another Select Committee the Government have no objection to that course. At the same time I hope that what I say will not be deemed to involve a pledge that support will be given to the Bill at any future time. That must depend upon the form in which it emerges, and upon further consideration.
Having said that, I do not like to let the Second Reading go without making a few comments upon the proposals in the Bill, because they are proposals of very great importance. As your Lordships know, the present law is this: When the parents are living together the father is the sole guardian or the child, and after his death, the mother. But the Court has wide powers of interference in the event of misconduct on the part of the guardian, and when the parties separate, or when a magistrate makes a separation order, the question of the custody of the children is almost always, or very commonly, taken into account and dealt with by the court. That is in very general terms the present rule.
This Bill proposes that even when the two parents are living together in the same household, the father and mother shall be joint guardians with equal powers, and if they disagree they can call in the assistance of the Court—it may be the High Court, or the county court, or the petty sessional court. That, of course, is a tremendous change. It may be right or it may be wrong, but it is a very big change. I look upon it with some misgiving not only with regard to its effect upon the harmony of many

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thousands of homes where perfect harmony now prevails, but also with regard to its possible effect upon the discipline of the children, who may find a divided authority in the home and may perhaps, as children will, take advantage of it. There is also the objection that it may possibly throw a very great burden upon our Courts. I think—I am only stating my own opinion—that there is much to be said for the view that somebody in the household must decide, and if you must have somebody to decide you naturally give the decision to the head of the house who, in nine eases out of ten, or perhaps more, provides the means out of which the children are maintained and educated. This is a matter which I hope the Select Committee will look into with great care.
Having dealt with that, the Bill goes on to determine how the funds for the education and maintenance of children shall be provided, and the proposal is that they shall be found by the father and mother jointly, in proportion to their means. If funds are not found the other spouse—in most cases, the mother—can take legal proceedings to enforce payment of time amount which is required. That power to take legal proceedings to enforce payment is given not only to the mother hut to the next friend of the infant. I do not know whether your Lordships are familiar with the system of next friends. The next friend is, of course, anybody who can be got to take proceedings in the name of the infant. So the effect of this proposal is this. Suppose a child is sent to school and the father cannot pay the charges, or is unwilling to pay such high charges, or suppose the son is sent to a University and the father is not willing to pay such an allowance as the mother or the Judge thinks sufficient, the father may be prosecuted. He can be brought into court, and brought into court not only by his own wife—which is not a very desirable thing—but by anybody in the name of the infant. Or the son may say: "The allowance is not enough. I will get somebody to sue in my name, and make my father pay something more." That really is a very serious thing. I do not want to pronounce upon the Bill finally now, but I think that is the kind of thing the Committee ought very carefully to consider.
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I want to refer to one other provision only—one which rather surprised me, and created some indignation in my mind. It is provided by Clause 7 of the Bill that an order for payment of money under this Act may be enforced in the same manner as an affiliation order. That really is an astounding thing. I pass over the absurdity of it as machinery. The High Court may make many of those orders, yet the High Court never makes an order for affiliation or enforces it. The, same applies to the county court. It is only the magistrates who enforce an order for affiliation. That is, however, an obvious mistake in the machinery of the Bill. At the same time I think it is most insulting thing that when a man has declined (perhaps quite reasonably from his point of view) to make a certain allowance, and the Judge thinks he ought to make that allowance, the order should be enforced upon him as if he had had a bastard child. People are to resort to the Affiliation Acts and enforce an order against him as if he was in that position. It is an astonishing thing to provide for such a proceeding.
People often complain about legislation by reference—sometimes without very much cause—but I never in my life saw a more unhappy instance of legislation by reference than that in this Bill. I cannot help thinking that it at all events ought to be cut out. I do not want to trouble your Lordships with a long argument. I have said enough to show that if the Bill should be read a Second time and sent to a Committee, it will require very careful consideration indeed from that Committee.
LORD PHILLIMORE: My Lords, I hope your Lordships ultimately will pause before passing this very drastic change in our law. I should like to endorse all that the noble and learned Viscount on the Woolsack has said, with this reservation, that I think he has omitted to tell your Lordships that with regard to infants of very tender years the mother now has preference to the father. That would still remain the case even if this Bill does not pass. I ask your Lordships to think what this Bill comes to. A father wishes to send his son to Harrow; the mother thinks Eton best. Or the father says: "All my people have been at Oxford: I should

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like him to go to Oxford. "The mother thinks Cambridge best. You will have them going to the Courts—I do not know whether it is to be the stipendiary magistrate or a county court judge, or a Judge of the High Court—to decide to which school or University the boy shall go.
LORD ASKWITH: My Lords, I think the sort of case referred to by the noble and learned Lord who has last spoken is really one that might arise once in a thousand times, and if it did arise it would be decided by the Court in accordance with that which was best for the child. The principle of improving the status of women and considering carefully the question of the guardianship and custody of children and also their maintenance, not only in cases which come before the High Court of justice, but also in those which come before the lower courts, is one which is very important at the present time. Since our last meeting in the autumn there has been collected by the favour of the Foreign Office and Colonial Office a vast mass of material from all parts of the world on
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this subject. In nearly every one of the States of the United States of America this principle of equal guardianship is already the law. It is also the law in British Columbia, where, I understand, it is working extremely well.
On Question, Bill read 2a.
LORD ASKWITH: My Lords, I beg to move that this Bill be referred to a Joint Committee of both Houses of Parliament.
Moved to resolve, That it is desirable that this Bill be referred to a Joint Committee of both Houses of Parliament.—(Lord Askwith.)
On Question, Motion agreed to; Ordered, That a Message be sent to the House of Commons to acquaint them therewith and to desire their concurrence.

UNEMPLOYMENT INSURANCE BILL.
House in Committee (according to Order): Bill reported without amendment.
House adjourned at a quarter past six o'clock.