§ Vesting of rights to withdraw support.
§ 6.—(1) In a case in which the fee simple in the coal or mine and the fee simple in land supported thereby was vested on the valuation date in the same person and no coal-mining lease of that coal or mine was then subsisting, there shall vest in the Commission with the coal or mine, such a right as is hereinafter mentioned, to the extent to which the existing owners of the coal or mine were competent on the valuation date to grant such a right by virtue of their interests in that land, that is to say, a right to withdraw support from that land so far as may be reasonably requisite for the working of any coal, subject to an obligation to make good, or to pay proper compensation for damage arising from such working to that land, or for damage arising from such working to buildings or works thereon.
§ (3) On an application under Section eight of the Mines (Working Facilities and Support) Act, 1923 (which provides for the imposition by the Railway and Canal Commission of restrictions on the working of minerals where a person having an interest in land is not entitled to support or to sufficient support for buildings or works), the applicant shall not be required to pay or give any compensation or consideration in respect of the imposition of restrictions appearing to the Railway and Canal Commission to be justified by circumstances due to the subsistence of a right to withdraw support vested in the Commission by this paragraph:
§ Provided that this sub-paragraph shall not have effect in the case of an application sent to the Board of Trade after the expiration of six months from the date of the first publication in relation to the right in question of the notice required by sub-paragraph (2) of this paragraph.
§ (4) Notwithstanding anything in Section thirteen of the Mines (Working Facilities and Support) Act, 1923, restrictions, the imposition of which appears to the Railway and Canal Commission to be justified as aforesaid, may be imposed under Section eight of that Act on the application of, and so as to vest the right to enforce the restrictions in, any such company, authority or body as is mentioned in the said Section thirteen.
LORD HASTINGS moved, in sub-paragraph (1) of paragraph 6, to leave out all words after "obligation" and insert:
§ The noble Lord said: My Lords, I am glad to be able to tell the House that this is an agreed Amendment, agreed as between the mineral owners, the mine-owners and His Majesty's Government. After very considerable difficulty these words have been arrived at, and unless the House desires me to go into and explain them, I will merely content myself with moving the Amendment with the remark that without doubt the noble and learned Lord the Lord Chancellor will be withdrawing the Amendment which stands in his name immediately following. I beg to move.
Page 55, line 17, leave out from ("obligation") to the end of line 19 and insert the said new words.—(Lord Hastings.)
My Lords, on this point I must put in a protest on behalf of the Labour Party but not against the conduct of the noble Lord, Lord Hastings. His job is to get what concessions he can from the Government and to put them through. This Amendment only appeared on the Paper to-day. I saw my honourable friends in another place who represent the miners there this morning, and it has not been possible to get a considered opinion on all these Amendments which stand in the names of the learned Lord Chancellor, the Leader of the House, Earl Stanhope, Lord Hastings and the other Peers concerned. There are a great many of them. I did not know which were being taken and which were being dropped, nor did my honourable friends in another place. Therefore it has been impossible for my noble friends and myself on this side of the House to get any guidance or advice whatsoever. These Amendments deal with matters of technical importance of which we do not pretend to have any special knowledge, and it is therefore most difficult for us on behalf of the Opposition to offer any observations on these Amend- 141 ments. The one just moved by Lord Hastings was moved without any explanation at all. He satisfied the Government, so I suppose it is not necessary to satisfy any one else; but I am going to ask the Government to explain what the Amendment means and tell us what effect it will have on the Bill and on the duties of the Coal Commission under it.
In connection with this matter it is my duty to make these observations to-day. As I have said, I and my noble friends met in consultation with my honourable friends who take a special interest in this Bill on behalf of the Miners' Federation. There have been three groups at work on this Bill since it reached your Lordships' House—the group who are advised and assisted by the royalty owners, the group who are advised and assisted by the mine-owners, and His Majesty's Government who have the assistance of the Department of Mines and all the experts they care to call in. Between them they have met and discussed the matter in a kind of Soviet outside your Lordships' House. "Soviet" is perhaps not the right word. This is not Sovietism; this is syndicalism. A syndicalist committee has met outside your Lordships' House—I say this of course without any reproach to anyone—and then we are presented with these results.
May I read out some of the words used by Lord Hastings in the debate last night? Referring to the Second Schedule and asking for its postponement, the noble Lord said:The Second Schedule was very controversial, and it has been the subject of interminable negotiations between the two parties interested in this Bill, those representing the royalty owners and those representing the coal-owners. They having come to agreement, then His Majesty's Government stepped in with an alternative proposal.How dare they step in between these great forces? And we, these orphans, my noble friends and I on this Bench, apparently have no locus standi in this business at all. After all we are trying to represent, however inadequately, about 600,000 or 700,000 mine workers in this matter and also the Official Opposition. Our views are for what we consider to be the good of the nation as a whole. To continue what the noble Lord, Lord Hastings, said:They having come to an agreement, then His Majesty's Government stepped in with an 142 alternative proposal. As that alternative proposal was put into my hands only after the tea hour this evening between five and six o'clock, it has of course been impossible to arrive at any agreement with those other parties who are deeply interested in this matter.Then the noble Lord went on to ask that the Second Schedule should be postponed to to-day, which has been done.
Later on Lord Hastings said:While the House is dealing with the Report stage we cannot be discussing outside.I make no complaint whatsoever of Lord Hastings and his friends taking extra advice from those who know the industry. That is not our complaint at all; but I must explain to your Lordships that it is difficult for us on the Opposition side to give an opinion on those Amendments which now have been agreed between the three parties. The Government who had the temerity to step in have now apparently come to an agreement and they have accepted Lord Hastings's Amendment. I must confess to your Lordships that when I saw my friends in another place who are miners' representatives I asked them their opinion upon the Government's Amendments. I said: "You will not have time to look at Lord Hastings's Amendments, but you may take it they are against your interests in any case. Give my noble friends and myself some guidance on the Government Amendments which only appeared on the Paper yesterday." I could only see my honourable friends to-day because yesterday I was otherwise engaged here. Now, apparently, the Government Amendment is not going to be moved. The Government are adopting Lord Hastings's Amendment. I want, if I may, to ask for a full explanation of its implications.
Secondly, I wish to say that as regards my noble friends and myself here we cannot give a considered opinion upon these Amendments. That does not mean to say we agree with them. They may be excellent; I do not know; but in the circumstances I have mentioned we shall have to let them go. In that connection I must remind your Lordships of what happened at the end of the Committee stage. Your Lordships will remember that Clause 12 was postponed so that noble Lords and their advisers outside could try to come to some arrangement, and finally an Amendment was put down 143 on the very day that we discussed the matter in the name of the Minister of Education to line 39 on page 14, and another Amendment on line 2 of page 15. My noble friends Lord Addison and Lord Snell and myself had no opportunity of having these Amendments considered, but I did take advice about them, because I thought we might bring the matter up again at a later stage, and if I may I am going to read a few words of the opinion of a colleague of ours in another place who has as much knowledge of this particular industry as I believe any member of the House of Commons. He says:The effect of the two Amendments is to tie the hands of the Commission completely so as to secure the financial position in respect of the coal working business not being worsened. If that means anything it means that the Commission has got to deal with rent as if it was a mere accountancy charge in the books of the company; e.g., the owner would not have to pay himself royalties in a bad year; he must not be made to pay the Commission any-thing if he is to be in no worse position in a given year than he would have been. It is impossible to put a tenant in no worse position than a working landlord. The thing is really nonsense.I have only just got this opinion. If we had been in possession of this opinion before we would, of course, have resisted these last-minute Amendments to Clause 12 on the Committee stage. I cite that as an example of what happened on the Committee stage. Now at the Report stage we are faced with these Amendments which may be of the utmost importance and I feel bound to make the Opposition view clear with regard to them.
§ THE LORD CHANCELLOR
My Lords, I confess the speech of the noble Lord fills me with surprise and, in a modified sense, with admiration because it so happens that this question of compensation had been discussed in this House on previous occasions up hill and down dale with the greatest care and ability, if I may say so, by a number of your Lordships. Anybody who listened to those debates and who considered the questions that were involved should have, I should have thought, no doubt at all as to the two matters, as I understand it, which this Amendment, which seems to be regarded as a nefarious bargain, is intended to deal with. There are two things. The first is this: when the surface is let down how should you put the surface owner, 144 according to fair principles, in a position to have the damage done to the surface made good or to be compensated? And there was a question, which the noble Lord, Lord Hastings, urged with his usual skill, whether the clause in the Bill which would enable the person who had done the damage either to make good or to compensate was in fact just, because there were cases where he thought if that was left to the option of the person who had done the damage it might be unjust to the surface owner. Upon that the battle raged.
In many cases, as was pointed out, I am afraid, at some length on a previous occasion, the lessees have a staff man who goes in immediately a wall is cracked or a fence let down or water does not run properly in the drain and the damage is made good sometimes within forty-eight hours after the damage is done. In other cases a house is involved and, if it is a serious matter, instead of it being made good compensation is paid. The question is whether you should pay compensation or make good. This nefarious bargain, as it seems to be regarded, appears to be this, that where the surface owner consents the colliery company or the Commission, as the case may be, shall make good, and where he does not at once consent his consent is not to be unreasonably refused. In other cases there shall be payment in cash for damage done. How that can affect anybody except the surface owner and the lessee, and indirectly the Commission, I am unable to understand. Nobody can have any doubt on reading this very simple clause that so far as that is concerned that is all that is intended to be dealt with by the Amendment.
There was another point which from the point of view of the Government was a more serious point and one upon which the Commission was indirectly interested. Accordingly those persons who are interested in this measure becoming a success might well say that they wanted to understand what was being done. They had a perfect right to object to a liability being placed upon the Commission which they thought was not a fair one. That question again was discussed at great length, and the Government—I am afraid I was the principal spokesman on this matter—objected to any liability being placed on 145 the Commission to pay or make good except in cases where the Commission had themselves granted the lease, because it was said that where leases were in existence at the date of vesting it was not fair that a liability should be placed on the Commission which might have arisen from circumstances entirely beyond their control. That is the second point which has been agreed.
It has been agreed on these terms, which I think are fair terms, that as between the persons mainly interested—namely, the surface owner and the colliery company—where the colliery manager is working under a lease granted by the Commission, the Commission should be liable directly or indirectly to pay the sum due to the surface owner. I remember having a little discussion with the noble Lord who has objected to these Amendments. He was taking the greatest interest in the matter then and I remember well, and if I may say so with regret as far as I am concerned, that the noble Lord scored a point over something I had said and I had to admit I was wrong. He said that colliery companies might go bankrupt and accordingly there might be a number of cases in which the surface owner, who from this point of view might be quite a poor man, would be unable to recover from the lessee the sum which the lessee was liable to pay because he had let down the surface. At that time the noble Lord betrayed, as I thought, full and complete apprehension of the points which were being discussed, but it appears that the lapse of a fortnight or so has resulted in his mind being a blank on all these topics and he professes to be unable to understand this exceedingly simple Amendment which is the result in one sense of a bargain, but not an unfair or in any way improper bargain.
The noble Lord, Lord Hastings, has put down an Amendment which the Government are able to accept, and the result will be that proper compensation is payable under paragraph 6 of the Schedule we are discussing for damage arising from the working of the land, or, with the consent of the person entitled to compensation which he may not unreasonably withhold, that damage is to be made good to the reasonable satisfaction of that person and without expense to him. The addition that the obligation shall extend to buildings and works on the land whether constructed before or after the 146 vesting date is in effect mere drafting to make it clear that the land does include buildings, as it does not in some other places in the Bill, because buildings are the subject of the claim. The only comment I have to make is that I am not sure that the word "which" in the latter part of the Amendment is as good grammar as the words "and this" would be. That is a matter with which the noble Viscount, Lord Bertie, is generally concerned. It is a purely grammatical question. Upon the other points there is really nothing which calls for prolonged examination, nothing which is unfair or unjust, nothing in which the interests of the public are in the least degree jeopardised.
§ LORD HASTINGS
My Lords, I would not rise again, although I have the right to do so as the mover of the Amendment, except to take up one remark that fell from the noble Lord, Lord Strabolgi. He told us that he had informed his advisers in another place that any Amendment put down in my name must necessarily be contrary to their interests. I take great exception to that. I have endeavoured to explain that the mineral owners of to-day will be the surface owners of tomorrow and the surface owners' interests whether great or small are the same. Consequently on previous occasions as on this occasion what I have been endeavouring throughout to do has been to safeguard the interests of these surface owners. The fact that I have been successful in so doing should be a matter of congratulation from the noble Lord, Lord Strabolgi, because those whose interests he desires to represent are identical with the interests I represent. I trust he will not again commit himself to the statement that any Amendment which appears on the Paper in my name is contrary to the interests which he represents. It is not the fact. I apologise to the House, because I have endeavoured to save the time of the House by saying little about it, but it has had disastrous effects.
May I say to Lord Hastings that I did not mean him to take it too literally? Certainly I did not mean to give him any offence, and so far from his Amendments being all contrary to the interests which I represent, both I and my noble friends have on more than one occasion supported him.
§ On Question, Amendment agreed to.147
LORD GAINFORD moved, after subparagraph (1) of paragraph 6, to insert:
(2) The Commission shall on the occasion of their first exercising, or granting to a lessee the benefit of, a right vested in them by this paragraph give public notice that they propose so to do by advertisement in the London Gazette and in one or more newspapers circulating in the locality, and, in the case of buildings or works whose construction is begun after the date of the first publication of the notice the person for whom the buildings or works are to be constructed shall before the commencement of the construction thereof cause to be deposited with the Commission plans showing the design of and the proposed materials for and the method of construction of the foundations of such buildings or works and the Commission shall have the right of inspection of such foundations during their construction from time to time as they may reasonably require.
(3) If the Commission are of opinion that the proposals contained in such plans as aforesaid are not such as to minimise damage in the event of subsidence they may, within twenty-eight days of the deposit of the plans, propose to the person for whom the buildings or works are to be constructed that such alterations therein as they consider desirable for the purpose of minimising such damage shall he carried out and in that event the obligation to make good or to pay compensation referred to in sub-paragraph (1) of this paragraph shall be limited to damage which could not have been avoided had the aforesaid proposals of the Commission been adopted.
(4) The Commission shall pay the costs reasonably incurred by such person as aforesaid in connection with the deposition of plans in accordance with sub-paragraph (2) and the additional cost incurred in the construction of the buildings or works in complying with a proposal made by the Commission under sub-paragraph (3) of this paragraph.
(5) Any dispute as to any amount payable by the Commission under the preceding sub-paragraph shall, failing agreement, be determined by arbitration.
§ The noble Lord said: My Lords, the subject matter of this Amendment really arises out of the action of the Government in divorcing the interest in the minerals from the surface owner. The colliery owners are very well accustomed to having many claims for subsidence, and in many cases attempts are even made to exploit them by those who either rent or possess houses on the surface. This Amendment deals only with the question of buildings which are to be erected after a new lease. There are three main paragraphs. One deals with the necessity for the Commission to publish in the Press any new lease which has been made, so as to enable any person who is going to construct a building on the surface, 148 above the coal, to give notice of his intention. The next paragraph requires that the Commission can in their wisdom take steps to see that proper foundations are laid to those buildings, so that undue subsidence does not take place in regard to those buildings. The next paragraph deals with the cost of the production of plans which are required by the Commission, and deals with costs due to the steps which have to be taken as a result of the Commission's actions. The last paragraph is merely the usual one enabling any dispute to be referred to arbitration.
§ What I want to emphasize is that this principle has been accepted by the Government, so far as I understand. The cords that are on the Paper are not words which are entirely in accordance with the views of the Government. They are words which have been agreed to between the owners of the surface and the Mining Association. We naturally took rather a different point of view from that of the owners of the surface. They will no longer possess the coal, and will have only one interest, which is to develop their surface as best they can, and have proper rights of protection in connection with their surface against the mineral owners. They are no longer in collusion with the mineral owners in trying to help in the development of the minerals, and consequently they look at a possible subsidence from a very different point of view. The mineral owners, on the other hand, are most anxious that no damage should occur on the surface if it can be prevented, because after all they have only two alternatives, either to pay compensation for all the damage which they have done to buildings on the surface as a result of their operations underground, or to sterilise their coal and leave support for those buildings, so that no subsidence can occur.
§ In actual practice we have found, as colliery owners, that in many cases where houses are erected on the surface only a very small expenditure is required in connection with the laying of cement foundations in order to prevent any subsidence occurring, or any damage being done to buildings owing to operations underground. This Amendment is necessary in order to enable the colliery owners to work the minerals, and it is also necessary in order to enable the Commission, who will possess the minerals, to be able 149 to lease them and. see that they are worked. I am not going to press the Amendment on this occasion, because the Government apparently do not see quite eye to eye with us with regard to these words. The difference I believe is not in principle, but in regard to particulars. Owing to shortness of time it has been impossible for me to secure agreement between the mineral owners and the Government as to the exact final words which ought to be introduced in order to deal with this point. I therefore propose merely to move the Amendment formally, with a view to ascertaining the Government's view with regard to the principle, and I hope that in the interval between now and the Third Reading there will be no difficulty in agreeing an Amendment which can be passed without any discussion. I beg to move.
Page 55, line 19, at end, insert the said new sub-paragraphs.—(Lord Gainford.)
§ THE EARL OF MUNSTER
My Lords, the noble Lord who has moved the Amendment has explained quite fully the purpose of it. It is perfectly true to say that the Government believe that they will be able to meet my noble friend. After consideration of the Amendment which he has moved we had hoped to be in a position to bring forward an agreed Amendment on this occasion. The time has unfortunately been short, but I think there is very little now between the noble Lord and my right honourable friend the President of the Board of Trade, and if we can agree an Amendment I shall be only too pleased to bring it forward on the Third Reading, at which time I shall be very happy to explain the contents of it to my noble friend Lord Strabolgi, as well as to the rest of your Lordships. I hope therefore that Lord Gainford will withdraw this Amendment now and see whether this agreement can be reached with His Majesty's Government.
§ LORD HASTINGS
My Lords, the noble Earl, Lord Munster, who expressed the hope that he would be able to find words agreeable to Lord Gainford, will not forget that he has also got to find words agreeable to me; because the Amendment which stands on the Paper has been arrived at after very much discussion between the two interests which are vitally concerned in the matter, and any change of words which is agreeable 150 to one section without being equally agreeable to another could clearly not have any prospect of passing through this House undisputed. I hope with him that words will be found which will be agreeable to all parties.
§ THE EARL OF MUNSTER
My Lords, I think it might even be possible to find words which would meet the wishes of my noble friend opposite, difficult as that seems to be at certain periods.
§ Amendment, by leave, withdrawn.
§ LORD HASTINGS had on the Paper an Amendment to omit the proviso in subparagraph (3) of paragraph 6. The noble Lord said: My Lords, the original purpose of putting down this Amendment was to eliminate a paragraph which had become inappropriate owing to the action taken by the House in Committee. Since that Amendment was put down an alternative Amendment has been put down by the Lord Chancellor and the Leader of the House. I have given considerable study to that Amendment, and I may say that I like their Amendment very much, but after consulting with my friends in the matter I have come to the conclusion that it would be exceedingly difficult to find alternative words to this Amendment, and therefore I propose to retire from the contest, not to move my own Amendment, and to amend that which is in the name of the Lord Chancellor and the Leader of the House.
§ THE LORD CHANCELLOR moved, in sub-paragraph (3) of paragraph 6, after "Provided that," to insert "the Commission shall, on the occasion of their first exercising, or granting to a lessee the benefit of, a right vested in them by this paragraph, give public notice that they propose so to do by advertisement in the London Gazette and in one or more newspapers circulating in the locality, and." The noble and learned Lord said: My Lords, these words were struck out from the text by mistake in Committee, and it is necessary, really only as a matter of drafting, to reinsert them. I think they require no real explanation.
Page 55, line 35, after ("that") insert the said words.—(The Lord Chancellor.)
THE EARL OF CRAWFORD
Why is it necessary to publish in the London 151 Gazette? I should have thought that all that was necessary was to publish in a local newspaper. To do it in the London Gazette seems to me quite superfluous.
§ THE LORD CHANCELLOR
My Lords, I understand there are people who make this their daily reading and desire to have an opportunity of seeing these things in the London Gazette, more particularly if they are not persons residing in the locality.
§ LORD ADDISON
My Lords, I hope this will be retained, because it is the practice of every Department to issue its notices in the London Gazette. Anyone who wants to know what a Department is doing will get notice of it in the London Gazette. It is exceedingly desirable for many reasons that this practice should be maintained, so that everybody will know where to look.
§ On Question, Amendment agreed to.
Page 55, line 38, leave out from ("notice") to end of line 39 and insert ("to be so given").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR moved, at the end of sub-paragraph (4) of paragraph 6, to insert "and such restrictions may be so imposed on the application of, and so as to vest the right to enforce the restrictions in, any company or other body or person carrying on an undertaking primarily for the supply of gas, electricity, water or hydraulic power for public purposes or to members of the public." The noble and learned Lord said: My Lords, this is a case in which I think I have to admit that on the previous occasion I used language in your Lordships' House which implied that I thought there were no reasons for any such provision. It is intended to deal with what may be, perhaps not very inaccurately, described as public utility companies having no statutory rights. In particular it was impressed on the Government that there were a number of such companies in Scotland concerned with the supply of water, gas, electricity and so forth, without any statutory powers. The contention I put forward was 152 that they should get protection under the Act of 1923, and I am not at all sure that I was wrong; but, after having said that I would consider the matter, I came to the conclusion that it would be safer (because I was not quite confident that I was right) to insert words which would make it perfectly clear that these bodies, without the necessity of showing that public interests were involved, should be in the same position as the person who had statutory power and would therefore be entitled to make an application to the Railway and Canal Commission. Accordingly those persons can, subject to the conditions of the Act, apply to have imposed the restrictions which are necessary for safeguarding their undertakings.
Page 55, line 46, at end insert the said words.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
LORD BALFOUR OF BURLEIGH had given Notice to move to add to paragraph 6:
(5) If any person interested in any land supported by coal or a mine of coal shall suffer injury or damage to such land or to buildings or works thereon arising from the working of coal he shall have a right of action against the Commission in respect of such injury or damage except where the payment of compensation in respect of such injury or damage is provided for in a coal-mining lease subsisting on the valuation date.
§ The noble Lord said: My Lords, this Amendment deals with a matter which I am going to suggest to your Lordships is of the greatest possible importance to every property owner in the country. That of course applies to the question we have just been debating and as to which the Government have agreed to the insertion of words that we consider are reasonable. This is just as important as that, but it has this difference. The difference is that the need for this recourse which I am going to ask your Lordships to give was not, it seems, apparent to the Government until we reached the Committee stage of this Bill in this House. The Bill came all the way through another place and up to the Committee stage here without the Government having perceived the need for any security of this kind.
§ That illustrates the first point I want to make, which is that the Government have been really unconscious of the difficulties which this Bill of theirs is going to produce in the severance which it makes 153 between the surface and the minerals. This Amendment is not quite the same as, but is similar to, an Amendment which I moved on the Committee stage the object of which was twofold. I wanted to give the surface owner, who was the former mineral owner and whose minerals are now going to be vested in the Coal Commission, recourse against the Coal Commission in the case of new leases granted by the Commission in future; and I also wanted to give him recourse against the Coal Commission in the event of the infraction by the lessee of the existing lease which exists at the time of transference—that is to say, the lessee who was the lessee of the former surface owner and who will in future be the lessee of the Coal Commission.
§ It may be that my Amendment was too wide, and it may be still that this Amendment is too wide. To recall the circumstances, I would remind your Lordships of the Amendment which was accepted on the Committee stage and which was proposed by my noble friend Lord Amulree. That provided that the Commission should have a right to obtain security from a lessee where they were giving a right to withdrawal of support. That was accepted by your Lordships, and this Amendment followed immediately afterwards. As I understood the course of the discussion, the noble and learned Lord on the Woolsack agreed that there might be something to be met, and he agreed to consider it between that stage and this and put down on the Paper an Amendment to meet the case. That Amendment which the Government have proposed, I expect, is the one which follows, and the only reason that I have made these remarks is to say that I appreciate that the Government have done something to meet the case which my Amendment was intended to meet, although not all. I wish to know whether the Leader of the House agrees that the right course in these circumstances is to proceed by way of Amendment to the Amendment, because I have tried put down some Amendments to rectify what I consider to be one blemish and one omission in the Government's Amendment. The noble Earl who leads the House has told us that it is unusual to proceed by way of Amendments to Amendments, but he may agree in these circumstances, with the Amendments actually on the Paper, 154 that it is the convenient way of doing it. If the noble Earl agrees, I do not propose to move this Amendment, but would try to get what I want through the Amendments to the Amendment to be moved by the Lord Chancellor.
§ EARL STANHOPE
We think it would be the more convenient course if my noble friend so moved Amendments to the Government Amendment on the next page.
THE LORD CHANCELLOR moved to insert after paragraph 6:
7.—(1) Any person interested in land damaged by the working of coal in exercise of a right to withdraw support therefrom which vests in the Commission under either of the two preceding paragraphs subject to an obligation to make good or to pay proper compensation for damage arising from such working, and which has been granted by the Commission to a lessee, shall be entitled to enforce against the Commission any liability to pay proper compensation for or to make good that damage pursuant to that obligation which the lessee fails to discharge:
Provided that nothing in this sub-paragraph shall be constructed as rendering invalid any provision contained in a lease granted by the Commission requiring the lessee to indemnify the Commission against liability in respect of any such obligation as aforesaid, and the Commission may require the inclusion of such a provision in a lease which they are under obligation by virtue of Section twelve of this Act to grant.
(2) Any question as to the subsistence by virtue of either of the two preceding paragraphs of an obligation to make proper compensation for or to make good damage to any land, or as to the rights or liabilities of any person in respect of the enforcement of such an obligation so subsisting, shall be determined by arbitration.
The noble and learned Lord said: My Lords, as I mentioned when we were considering the previous Amendment, there were two great points, and this is the second of them. The question is how far the Coal Commission ought to be liable either by way of proper compensation or by making good any damage that might arise to the surface and buildings as the result of subsidence. This Amendment is an attempt to carry out what we stated the Government were seeking to do—namely, to go as far as we thought was just and proper in the direction of making the Commission liable for such damage or making good to the surface
owner. The limit to which the Government can go is that mentioned in the proposed new paragraph. It is limited to cases where there is a right to withdraw support by reason of something which the Commission do, and in that case, subject to the conditions in sub-paragraph (1), the person damaged
shall be entitled to enforce against the Commission any liability to pay proper compensation for or to make good that damage pursuant to that obligation which the lessee fails to discharge.
In the normal case the lessee will have, by lease granted by the Commission, a liability of that kind, but he may be unable or unwilling, or he may refuse in some circumstances, to make good that obligation, and upon that (I think for the first time in this country) a liability is now imposed upon the Commission as landlord—I mean imposed by Statute on landlords—to make good a liability which a tenant of theirs has omitted to discharge in relation to a letting down of the surface.
§ That is, I submit, quite a substantial concession on the part of the Government. Beyond that I cannot see how the Government can fairly be asked to go. Take a particular existing lease, which continues to be subsisting at the date of the vesting. The tenant has got certain obligations. The lease is one with which the Commission have nothing to do. He may have been acting in accordance with the terms of his lease, quite strictly, and as a result he may let down. He may be liable to pay compensation. His liability may be limited or, indeed, in some cases he may not be liable at all, because the landlord may have given him the right to let down the surface, or he believes he has such a right to let down the surface. In all these cases it does seem to the Government quite unjust and inequitable that a liability should be imposed on the new landlord—namely, the Coal Commission—to pay a debt, discharge an obligation, which has been incurred by a tenant who came on the scene before the Coal Commission were thought of. Accordingly, the right to claim against the Commission is limited in the way suggested.
§ I am not seeking for the moment to answer all the questions that arise, or particularly the question that will arise on the third Amendment put down by the 156 noble Lord, Lord Balfour of Burleigh, but simply to justify the sub-paragraph as it stands. There is then a proviso that it is not to invalidate any provision contained in a lease granted requiring a lessee to indemnify the Commission. Unless that is put in it may be thought by certain persons that when the Coal Commission are granting the lease they are not entitled to impose a liability upon the tenant. That really is a question of negotiation between the Coal Commission and the respective tenant, and the tenant may prefer to get rather betters terms from the Coal Commission on the condition that he made good any damage to the surface or buildings on it.
§ Then in sub-paragraph (2) there is a provision, which again, was suggested and asked for by a number of noble Lords, that when any question of this sort arises as to the existence of an obligation under either of these two preceding paragraphs it shall be determined by arbitration. I think someone thought that there should be an alternative, an application to the Court. Perhaps your Lordships will allow me to say, having had a very large experience in cases of this kind in the Courts, that I cannot help thinking that it is not to the benefit of either party to go to the Court, unless it is absolutely necessary, in subsidence cases. They involve so much expert evidence, generally, I regret to say, of a most conflicting character. It is far better, if the parties can manage it, to get a first-rate arbitrator to go down to the mine and see what working has been done, inspect the plans, then go on the surface and see how much damage has really been occasioned. I think those who want applications to the Court should be told that in most cases, so far as my experience goes, such applications would not meet the case. They would be acting rather unwisely if they did not agree to arbitration, which I think is the best plan. That is the paragraph which is proposed on the part of the Government and I leave it to the noble Lord, Lord Balfour, to move his Amendments.
Page 55, line 46, at end insert the said new paragraph.—(The Lord Chancellor.)
§ LORD BALFOUR OF BURLEIGH had given Notice of three Amendments to sub-paragraph (1) of the proposed new paragraph—namely, after coal, to insert 157 "(a)"; to leave out "which the lessee fails to discharge"; and to insert "and (b) contrary to the terms of a lease subsisting at the valuation date shall be entitled to enforce against the Commission any liability for payment of proper compensation arising from such wrongful withdrawal of support."
§ The noble Lord said: My Lords, I would like to say, because it clarifies the situation, that there is a printing error in my first Amendment as it appears on the Paper. It is the wrong kind of "a". It makes it rather difficult to follow. It should of course be an italicised "a" to correspond with the italicised "b" lower down. Your Lordships will forgive me mentioning that, because the Amendment is difficult to follow if you did not realise what I have just said.
§ THE LORD CHANCELLOR
Perhaps I may read the three Amendments of the noble Lord, Lord Balfour, as they are intimately connected.
LORD BALFOUR OF BURLEIGH
I rather want to take the Amendments quite separately, because I regard them as dealing with entirely separate matters, apart from the italicised "a".
§ EARL STANHOPE
Suppose we put in the italicised "a" and then the House rejects the last Amendment of my noble friend?
LORD BALFOUR OF BURLEIGH
I do not want to put in an italicised "a". I am quite willing to leave the "a" out. I understood that the learned Lord Chancellor wanted to take the Amendments together, but I wish to pass to the second Amendment in my name and to the third Amendment. First I will move the second Amendment.
§ EARL STANHOPE
I think that would be the simplest thing. What I was suggesting was that we should have the discussion of the third Amendment on the italicised "a", but it makes no difference.
§ VISCOUNT HORNE OF SLAMANNAN
My Lords, may I suggest to the Lord Chancellor that the word "constructed" in line 13 of the noble and learned Lord's Amendment ought to be "construed"—"provided that nothing in this sub-paragraph shall be construed"?
§ LORD BALFOUR OF BURLEIGH moved, in sub-paragraph (1) of the proposed new paragraph, to leave out "which the lessee fails to discharge." The noble Lord said: The noble and learned Lord on the Woolsack told us in moving his Amendment that this represents the limit to which the Government can go. I very much regret to hear that because I was hoping that we should get some further concession, and if I receive the support which I hope for on this matter I shall feel bound to press it to a Division. The paragraph as it stands applies to the normal lease granted by the Coal Commission in the future, and if I understand it aright it would also apply to a licence or liberty granted by the Coal Commission to a lessee under an existing lease. The provision is that recourse is given to the surface owner against the Coal Commission by which the Coal Commission are forced to make good damage which the lessee fails to discharge—the obligation which the lessee fails to discharge. Reading through the noble and learned Lord's Amendment I found it was all very good up to that point. Those words to my mind are an excrescence which your Lordships may fairly be asked to remove. It is like a wart on an otherwise not unhandsome face. I do not think it is an entirely handsome face, because it is lacking in one essential feature which will be put in by my other Amendment. Meantime we are now dealing with the excrescence.
§ It does seem to me fair that recourse should be given against the Coal Commission for these reasons. I was very glad to hear the noble and learned Lord say that for the first time there is now to be a liability imposed by Statute on this landlord to make good the liability of his tenant. That is so obviously right that the rightness of it never occurred to the Government until we pressed it on them, but it is all part of this tremendous new problem of the severance, and it is fundamentally fair. You are going to transfer this great body of property, all this coal, to the Coal Commission and the Coal Commission is something quite new. This coal has always before been owned by private individuals or companies and let to lessees, but you are now introducing an entirely new factor into the law of this country. At first the Government said they could not interfere 159 with existing leases, nor with those existing provisions which would impose this liability on a landlord for the obligations of his tenant. The Government have now conceded the main principle and what I am asking for is only a very small further adjustment of that concession. I should like to know what these words "which the lessee fails to discharge" really mean. How far am I going to have to take the lessee before he can be said to have failed to discharge his liability? Have I got to take him all the way to the House of Lords? Of course in the ordinary way the lessee will discharge his liability, and I suppose in ninety-nine cases out of a hundred no difficulty will arise, but I can see that the lessee will be much more ready to give effect to his obligation if he knows that he is liable to be stirred up from above, that is, by his new landlord the Coal Commission.
§ Your Lordships have to remember that the situation of the surface owner is going to be a very difficult one. He is parting with a great deal of his control over his lessee. He is going to be in an extremely difficult position. One question I should like to ask the noble and learned Lord is if he will tell me whether the surface owner will have any right of access to workings under his ground. I know he has a right to plans, but I have not been able to find in the Bill anything definite—although it may well be there—that he will have any right of access. If he has not, I think he ought to have it, because he is going to be in a very difficult position without the intimate knowledge he at present has of what is going on underground from the six-monthly or annual reports of his mineral agents. It seems to me eminently fair that this recourse should be given against the Coal Commission simultaneously with recourse against the lessee. I cannot see that there can be any harm in it and I conceive it only to be fair having regard to the new relationship which is going to be created between the surface owner, the Coal Commission, the lessee and the agricultural tenant.
§ It is an understood matter I think in this country that in debates in this House or in another place one must be very careful not to make any attack on the Civil Service. They are in the position that if they are attacked they cannot 160 answer for themselves. But I do not think it is unfair to say that civil servants are apt to have the defects of their qualities, and the insertion of these words to my mind is an example of depart-mentalism of a rather unfortunate kind. As I see these words they are in there largely to save the Coal Commission trouble. Quite clearly it will be much less trouble for the Coal Commission if the wretched surface owner has to cope with the lessee and exhaust his resources against him before he can turn against the Coal Commission. But the Coal Commission are going to be the big brother in all these mineral matters, and I think they ought to take over not only the plums in respect of royalties but the responsibilities and liabilities which today rest on the surface owner. I think this is a matter of the very first importance and I hope your Lordships will support the Amendment which is simply to remove this excrescence from the face of an Amendment which, otherwise, up to a point, is satisfactory.
Amendment to the Amendment moved—
Line 10, leave out ("which the lessee fails to discharge").—(Lord Balfour of Burleigh.)
§ THE LORD CHANCELLOR
My Lords, the noble Lord always seems to see behind an Amendment something which requires consideration, and I think in most cases his desire is fair and just, but I think in this instance he has not appreciated the legal effect. It is that effect which I think may possibly lead him to modify his views. If the words are struck out the result will be that the primary responsibility for making good damage, great or small, caused by the subsidence of surface by a working lessee, will be on the Coal Commission. The result will be if the words are struck out that if a man has a crack in a wall or if his fence is destroyed, or some damage is done to a building, or the drains do not work properly, he will have to communicate with the Coal Commission and to enter into correspondence with them. They will have to communicate with the working lessee to ask if he agrees that the damage in question is due to his workings, and in the result there must be a very substantial delay in giving to the surface owner what everyody wants to give him—namely, compensation, or the alternative of making good, as soon as possible. That 161 is, I am convinced, the effect of striking out the words.
If that is so, I cannot believe that the noble Lord will insist on this Amendment, because he knows better than most of us that by far the greater number of these trivial cases of damage are remedied at once by the working lessee. There are staffs employed to do the work who are going round and making good every small damage that occurs to the surface. It cannot be to the interest of the surface owner that he has got to begin by shooting at the Coal Commission, who presumably have some important office in London, who may be far distant, who have to send somebody down to see what has been done; whereas the alternative if the lessee is responsible is that the lessee is on the spot, he is in the position of having people there watching the results of underground working, and it is perfectly easy for them in a very short time either to make good or to ascertain at very small expense the amount of the compensation which ought to be paid. It is on this ground that I do not think this Amendment would have the result which the noble Lord wants. I am strongly of opinion, and I urge it upon your Lordships, that, if you leave the words in, not one case in a hundred will ever come before the Coal Commission. The remaining ninety-nine will be settled by the lessees.
The paragraph which the Government have assented to makes it possible for the surface owner, if damage is done and he cannot get relief out of the lessee, to get that relief out of the Coal Commission. The noble Lord asked, how far has he got to go. I do not think that in practice there is any difficulty in answering that question. The paragraph as it stands makes the lessee primarily liable to discharge the liability. He is the man who has done the work which has let down the surface, and unless the surface owner agrees to its being done he goes to the lessee and says: "Such and such damage has been done, make it good." The paragraph is not so worded that the lessee has got to be pursued to the House of Lords. If a reasonable demand is made upon him and he does not comply with it the lessee has failed in discharge, and there will be an opportunity for the surface owner to apply to the Coal Commission. There will be no difficulty at all. In these circumstances I hope the noble Lord, whatever course he takes with re- 162 gard to the next Amendment, will see that the present Amendment is really not so drawn as to have the effect for which he seeks.
§ LORD ADDISON
My Lords, I think the noble Lord, Lord Balfour, said correctly that this was a matter of first-rate importance which he has raised. It is. I hope your Lordships apprehend that the noble Lord wants to place upon the new big brother a different amount of responsibility altogether from that which applies to the existing small brother. The existing brother, to keep to the formula of the noble Lord, is the existing royalty owner, the landowner. He has certain obligations, and it is right and proper, of course, that the State, if the Commission are really in fact to be the State, should be a good landlord; but that is not a reason for saddling upon the Commission a responsibility which does not now fall upon a landlord, even a good landlord, and which a good landlord does not now recognise as his responsibility. That is what this Amendment would do, and so it is a matter of first-rate importance, because it would really result in this, so far as I understand it. To use the words of the noble Lord, it is the duty of the landlord to make good the defects of his tenant, if the tenant defaults. The lessee in this case would enter into an agreement, and part of his agreement would be to make good surface deficiencies if they occur, and so on. But this Amendment would have the effect of making the Coal Commission responsible for the defects of the lessee, who has entered into a right and proper agreement with the Commission. It opens up a vista of claims upon the national Commission, and would be a standing encouragement to lessees to ignore their own obligations. It would place upon this State big brother an entirely different class of responsibility from that which hitherto has attached to the existing small brother. It is indeed a matter of first-rate importance, and for once the Party to which I belong find themselves on the side of the Government.
§ LORD HASTINGS
My Lords, I had some considerable difficulty in following the arguments of the noble and learned Lord, and I was wondering whether in fact he has himself appreciated the different sets of circumstances which not only 163 may but certainly must arise after the passage of this Bill into an Act of Parliament. It would, of course, be true to say that a surface owner whose coal is now in lease to a company will be often, after the passage of this Bill, in almost constant relation with that colliery company. That I think is inevitable. It is also valuable. In so far as that set of circumstances is likely to prevail, and to continue, the only difficulty there that arises will be to prove that the lessee has failed to discharge certain obligations, and I think my noble friend Lord Balfour is right in saying that a lessee who disputed his failure would have to be taken to such Court as might finally declare that failure or the reverse. That, of course, would be exactly what now is existing in the event of a lessee disputing his failure. There is nothing new in that.
But conceive of a case, and it will be the universal case in the course of time, where the Coal Commission issue a new lease. The Commission select the tenant. They will not ask the surface owner whether he approves of that tenant or does not approve. He will be required under the Amendment which has been put into the Bill by Lord Amulree to accept a tenant only of a class who will be able to pay compensation of a proper character. That is in this Schedule now. But the owner of the surface will be unrelated to that colliery tenant altogether. How is the surface owner of the future to obtain satisfaction for the letting down of his land by a lessee—not a lessee of his own but a lessee of the Coal Commission—with whom he is not in relation, and by whom he is owed no obligation, unless he has a right to go to the Coal Commission itself and to be able to demand in law compensation for the damage done to his surface by the lessee not of himself but of the Coal Commission?
It would seem almost the inevitable procedure. I am unable to understand how the surface owner will be able to get compensation for damage other than by that procedure. And it would occur to me as being right and proper that the Coal Commission should have a statutory liability to the surface owner in respect of minerals worked by a lessee of the Commission. Lord Addison seemed to think that the Coal Commission were being invited to accept a liability which does not now rest upon the mineral owner 164 of the present day. It seemed to me that that was the wrong end of the stick. It is not suggested that the royalty owner of the day has a liability in this matter of his tenant. The tenant has a liability to the surface owner. The tenant will have a liability in the future not to the surface owner but to his own landlord, and that is the State, and by this Amendment the surface owner is enabled, so to speak, to move the Coal Commission to operate the liability which the tenant of the Coal Commission owes to the surface owner as the person who has suffered damage. I fail to visualise in the Lord Chancellor's Amendment any means whereby the surface owner can recover compensation from the tenant of the Coal Commission otherwise than by what is proposed in the Amendment moved by Lord Balfour of Burleigh. I beg to support what my noble friend has moved.
§ VISCOUNT HORNE OF SLAMANNAN
My Lords, I do not desire for a moment to labour a matter which perhaps has already been made abundantly clear by the very lucid speeches which have been made from these Benches. But let us try to find what principle lies behind this proposal, which indeed the Government have accepted. In the ordinary case the present-day royalty owner goes against his tenant or lessee who has let down his surface and done damage to his buildings—quite properly goes against that lessee, because he has got an interest in that lessee, he has selected him. If a lessee not very reliable, not very substantial in the way of means, comes along and seeks to get a lease of the coal, the royalty owner is in the position of rejecting that lessee and making his choice. But when the coal is severed from the surface he no longer has any ability of selection. He has to take the tenant who is forced into the position by the Coal Commission. That may be a very unreliable person. Accordingly, the Government have recognised this fact—I take it that upon no other ground could they have accepted the suggestion made by my noble friend Lord Balfour of Burleigh and have said that the Coal Commission, which puts the tenant into the position in which he is able to do damage to the surface proprietor, shall be responsible for all the damage which is done. That is the principle which lies behind the whole thing.
165 If you once accept that it is perfectly plain also that the body against whom you must have recourse must be the Coal Commission. And—again taking the view that you may have a very unreliable lessee imposed upon you by the Coal Commission—it would be a monstrous thing if the owner of the surface were to be compelled to go through all the Courts of the land before it could be said that the lessee had failed to discharge his obligation in his liability to the surface owner. It might involve the surface owner not merely in a great deal of worry and trouble, but also in expense, which he might never be able to recover. That is the position in which he would be. There are many expenses incurred in the Courts which the successful litigant is not able to recover, and all that is imposed here upon the Commission is liability for the damage which occurs to the surface.
I was, however, very greatly impressed by the practical difficulty which was suggested by the noble and learned Lord on the Woolsack when he said: Is everything that takes place to be brought up before the Commission? I should have thought that in a practical world and in this practical country a practical means could be devised of getting over that difficulty. It would be very easy to put a paragraph in the Bill to suggest that in every case of notification to the Coal Commission of any damage that has taken place the surface owner should at the same time notify the lessee and give him an opportunity of making good the damage. Some phraseology of that kind might be put in as a practical method. But I think it would be very unwise and very unjust if we were to allow a surface owner to be put into the position in which he had, in the language of the law, to discuss a lessee who might not be a man worth powder and shot, but who might give him a great deal of trouble. I think the surface owner should on no account give up his direct access to the Commission for any damage which has been occasioned to his surface.
My Lords, I think the noble Viscount, Lord Home, has overlooked his own Amendment which he had on the Paper jointly with Lord Balfour of Burleigh, and which did insist that where the lease so provided the surface owner had to go to the lessee. 166 Then apparently the Government put down their Amendment, the two noble Lords see the Government Amendment, which is virtually the same as their own, and then they try to improve upon the Government Amendment by putting the whole of the onus on the Coal Commission. Where the lessee has an obligation, obviously the surface owner must go to the lessee, and that is admitted in the previous Amendment by the noble Lords, Lord Horne and Lord Balfour of Burleigh, which was withdrawn. Then why do they ask more from the Government now by seeking to amend the Government's Amendment in this way? As the noble and learned Lord has said, I took an interest in this matter on the Committee stage. I am grateful to the Government for this Amendment, and I hasten to come on this occasion to their support.
THE EARL OF CRAWFORD
My Lords, I think this short conversation has very well illustrated the difficulties inherent in the separation of surface from minerals. The speech of the noble and learned Lord on the Woolsack was almost defeatist to that extent. Good gracious! Whatever is the good of thinking you could come up to the absentee landlords in London to get your grievances redressed and to deal with a lessee whose name you may not ever know? I ask one question. Would the noble and learned Lord on the Woolsack kindly answer Lord Balfour's question as to the right of the surface owner to inspect the underground working? I can find no right of that sort in the Bill. Unless he has that, he does not know when the mineral owner below ground is going to approach the barrier of his property. The result would be that damage would take place without the surface owner having the power to protest. At the present moment that difficulty does not arise, at least only in one per cent. of the cases of coal being worked. It seems to me a very serious thing indeed that this, like so many other things, has been overlooked, because it is clear that from the very inception the Government thought it quite easy to buy coal, but it had not the remotest idea that it would have to buy the right to lower the surface as well.
§ THE LORD CHANCELLOR
My, Lords, may I answer the last question? I have to remind your Lordships that there is no right of action whatever as 167 regards working underground unless and until damage results. The effect of this is, and has always been, that you cannot complain because people are working under you; but the instant subsidence takes place on your property, causing damage, you then have a right of action, and in some cases you have an immediate right to an injunction. In practice, what happens is that as soon as you know—and people who are accustomed to these occasions know very quickly—that something underneath your premises is causing some subsidence and causing some injury, you are entitled to a writ, and you are entitled on proper application to inspect the underground working. But there is no right, and there has never been a right, to inspect underground workings in the case of an ordinary surface miler merely because the surface owner knows that some workings are taking place in subjacent property.
We are doing nothing except what is common form in these cases, and it is quite a mistake to suppose that in every case at the present time the surface owner is the person who has granted the lease. Your Lordships must know perfectly well that surface and minerals in countless cases have been severed for over one hundred years, and in these cases the surface owner will be in exactly the same position under this Bill as the surface owner who owns the surface but who does not own the minerals. May I say a word in answer to Lord Hastings? I concede that the man who has been the owner of the surface and the minerals, and is the man who granted the lease, is not in such a good position to know if damage is going to be occasioned to him after the severance has taken place, but he is in exactly the same position to know that damage has been occasioned to him as he always has been. That is the cause of action. It is not working underground, but working underground with the effect of causing damage.
Now may I say something in answer to my noble friend Lord Home? In the first place I should like to congratulate him on the discovery that the word "constructed" is really a misprint for the word "construed," which apparently the Government had not discovered. It shows the great care with which the noble Viscount has read these Amendments. 168 But having paid him that compliment, I must go on to say that I am quite unable to see the force of the argument which he has presented on this particular Amendment. It does not seem to me, with all respect to him, that he has answered the considerations I put forward in the smallest degree. The question is, in a case where the Coal Commission have granted a lease to a tenant, with an obligation on the tenant to make good any damage that shall be occasioned, whether the surface owner who has been damaged shall go first to the Coal Commission or shall go first to the man who has done the damage. It is the person whose working has caused the damage, not the Coal Commission, and I am wholly unable to see why in such a case he should not go against the person who has done the damage, who is at his very gate, whom he knows. I cannot believe that a surface owner who originally was the coalowner, who has got a colliery company working on his land, with all the various things on the surface that are incidental to the operation of coal-mining, cannot ascertain or does not know his name.
If a wall has cracked quite recently, and he sees a shaft close by and sees the ordinary stuff coming up day by day, is it not obvious that the sensible thing is to go to the secretary or some other person at that place and say, "Look here, you are letting down my house, you have cracked my wall, you must make good, or pay compensation." It is a complete mistake to suppose that, having done that, you have, in order to have your right against the Commission, to sue the man who has done the damage either in the High Court, the County Court, the Court of Appeal, or the House of Lords. With great respect that is fantastic. The section has said nothing of the sort. The section says if the lessee fails to discharge, and if you make a proper claim against a man, whether he be a working lessee or anyone else on the land, and he does not within a reasonable time comply with it, he is failing to discharge, and on that being so you have the right to go against the Commission.
I cannot help expressing my opinion very strongly that the striking out of these words would be unjust and unfair, and would not in the least carry out any object except this—namely, to cause trouble. You put the primary responsi- 169 bility on the Coal Commission in striking out these words. Many people who suffer damage will think they have to go against the Coal Commission first because you have made it first, and in that case the consequence will be simply this. Correspondence with somebody in London, and the Commission will have to communicate with the lessee. The Coal Commission will not know how much damage is done. That is what the lessee will know. I ask your Lordships to leave the matter as it is at present, and let people do what Lord Home says is the sensible thing to do—proceed against the man who has done the damage and not proceed first against the Coal Commission, who have not done the damage and who know neither the damage which has been done nor the quantum of it, nor what should be done to make good.
§ VISCOUNT HORNE OF SLAMANNAN
By leave of the House, may I ask a question? The question is, supposing the lessee refuses to acknowledge that the damage has been done by his workings, would it then be right for the surface owner to go straight against the Commission, or can the Commission reply that the lessee has not failed to discharge?
§ THE LORD CHANCELLOR
I am not able to say what the position would be in every case, but in the normal case, where the surface owner is claiming in respect of cracks or damage done to the surface, and the fact is that these cracks have been occasioned shortly after working by the working lessee, if the lessee declines to acknowledge any liability I venture to think that is an obligation which the lessee fails to discharge. It would still be open to the Coal Commission in that case to say that the damage has not been done within the terms of paragraph 7, but if the damage has been caused and is damage within paragraph 7, then the Coal Commission would be liable, and none the less the lessee who made excuse for not performing the obligation.
LORD BALFOUR OF BURLEIGH
My Lords, I am quite sure your Lordships' House was very glad to have two 170 speeches on this important matter from the noble and learned Lord on the Woolsack, and I hope the same consideration will be extended to myself or my friends if we ask the House to allow us to do so also. I confess that the full reply which was given by the noble and learned Lord has not convinced me that the position of the surface owner is really met by this Amendment. As the noble Lord said, we are talking now about a lease which the Coal Commission will give to a lessee to work coal under a surface owner's grant. The surface owner will have no part or lot in the choice of that lessee. We have convinced the Government that he ought to have recourse against the Coal Commission. Now the question is the order of recourse. Of course, I agree that in ninety-nine cases out of a hundred the matters will be settled between the lessee and the surface owner, but I maintain that the Coal Commission ought to accept the responsibility right away from the word "Go," if I may say so. There is nothing in this Amendment about communications being sent to the Coal Commission in the first instance about a ditch which wants clearing; there is nothing in this Amendment about assessing the damage. All it does is to put the responsibility equally on the Coal Commission.
I was astonished to hear the noble and learned Lord on the Woolsack say that the surface owner would be no worse off so far as this question of damage is concerned. The noble and learned Lord forgets that he said that the surface owner was not concerned—so I understood him to say—with the fact that minerals were being worked under his ground until damage was done. But he is intimately concerned at present. He is getting reports every year from his mineral agent, he knows precisely what is going on, and he is intimately concerned with everything that goes on under his ground because he is drawing that income. Now the need for regular mineral reports is being taken away, and he will not know nearly so intimately what is going on, but he is just as much concerned with the risk of subsidence. You have to remember the position in which the surface owner is going to be. As I said to your Lordships on a previous stage of the consideration of this Bill, he is going to be on one side of the fence, with the Coal 171 Commission and the lessee on the other side of the fence, and it is sometimes going to be very difficult to establish against a lessee that damage has in fact been done. Lots of lessees will not be ready to stand up to their obligations; many of them will be very hard to convince.
It is quite easy for the Lord Chancellor to talk about cracks appearing, as though it were a matter of easy ascertainment—as though a crack appeared and you knew at once that the damage had been caused by the working underneath. So often there are doubtful cases; and I do maintain that these words "which the lessee fails to discharge" are entirely unsatisfactory and unnecessary, because, as my noble friend has pointed out, they are so indefinite. We do not know what they mean in the case, we will say, of a claim which is resisted by a lessee. All surface owners may not be perfect individuals. Well, all lessees are
§ Resolved in the affirmative, and Amendment to the Amendment disagreed to accordingly.172
§ not perfect individuals. They are not all ready to admit liability even in cases where that is clear, and still less in cases where it is not clear. The Coal Commission have given the lease, and the Coal Commission ought to be ready to take the responsibility right from the start. I feel that unless the noble and learned Lord on the Woolsack can promise me something, I shall have to press this question to a Division. We were asked on the last occasion to postpone it, and we did, but I think that this debate has revealed a very unsatisfactory state of mind on the part of the Government, and unless I can get a very definite promise of something to meet this undoubted difficulty I shall have to ask your Lordships to divide.
§ On Question, Whether the words proposed to be left out shall stand part of the Amendment?
§ Their Lordships divided:—Contents, 51; Not-Contents, 38.171
|Maugham, L. (L. Chancellor.)||Stanhope, E.||Fermanagh, L. (E. Erne.)|
|Wicklow, E.||Gage, L. (V. Gage.) [Teller.]|
|Hailsham, V. (L. President.)||Gorell, L.|
|FitzAlan of Derwent, V.||Hare, L. (E. Listowel.)|
|Bath, M.||Goschen, V.||Harlech, L.|
|Dufferin and Ava, M.||Halifax, V.||Heneage, L.|
|Zetland, M.||Samuel, V.||Holden, L.|
|Ullswater, V.||Hutchison of Montrose, L.|
|Albemarle, E.||Jessel, L.|
|Bessborough, E.||Aberconway, L.||Kenilworth, L.|
|Birkenhead, E.||Addington, L.||Lawrence, L.|
|Feversham, E.||Addison, L.||Perry, L.|
|Iddesleigh, E.||Arnold, L.||Rennell, L.|
|Iveagh, E.||Biddulph, L.||Rushcliffe, L.|
|Lucan, E. [Teller.]||Boston, L.||Sackville, L.|
|Midleton, E.||Cautley, L.||Snell, L.|
|Munster, E.||Clanwilliam, L. (E. Clanwilliam.)||Strabolgi, L.|
|Plymouth, E.||Strathcona and Mount Royal, L.|
|Spencer, E.||Clwyd, L.|
|Portland, D.||Hereford, V.||Gainford, L.|
|Wellington, D.||Home of Slamannan, V.||Gerard, L.|
|Aberdeen and Temair, M.||Annesley, L. (V. Valentia.)||Howard of Glossop, L.|
|Askwith, L.||Lamington, L.|
|Bathurst, E.||Balfour of Burleigh, L. [Teller.]||Middleton, L.|
|Dartmouth, E.||Mildmay of Flete, L.|
|Dudley, E. [Teller.]||Basing, L.||Mowbray, L.|
|Fitzwilliam, E.||Bingley, L.||Oriel, L. (V. Massereene.)|
|Lindsay, E.||Brancepeth, L. (V. Boyne.)||Saltoun, L.|
|Mar and Kellie, E.||Cromwell, L.||Sandhurst, L.|
|Scarbrough, E.||Darcy (de Knayth), L.||Shute, L. (V. Barrington.)|
|Doverdale, L.||Teynham, L.|
|Falmouth, V.||Fairfax of Cameron, L.||Waleran, L.|
|Wigan, L. (E. Crawford.)|
§ LORD BALFOUR OF BURLEIGH moved, in sub-paragraph (1) of the proposed new paragraph, after "discharge" 173 immediately preceding the proviso, to insert "and (b) contrary to the terms of a lease subsisting at the valuation date shall he entitled to enforce against the Commission any liability for payment of proper compensation arising from such wrongful withdrawal of support." The noble Lord said: My Lords, I would first like to offer my congratulation to the Government on having been saved by His Majesty's Opposition, who happen to be here in full force to-day, otherwise they could not have performed that rather notable feat. They have just done it. This Amendment is intended to have the effect of giving recourse to the surface owner against the Coal Commission in the case of an infraction of a lease subsisting at the time of valuation. The reason for this Amendment is that if a lessee under such a lease improperly withdraws support the remedy for the surface owner is not under the lease but is at Common Law. It seems to me to be right and in accordance with the principles which are now admitted by the Government, although perhaps not quite to the extent which I should like, that the Coal Commission should have that responsibility. I anticipate that the noble and learned Lord on the Woolsack will say that this lease has nothing to do with the Coal Commission. I cannot accept that point of view. I think it has a great deal to do with the Coal Commission. It is true that the lease was granted by the present surface owner, it may be many years ago, but the Coal Commission are going in future to be the recipients of the royalties which are paid under that lease, and I think they must take their share of responsibility for such unpleasant parts of the lease as exist as well as the plums.
§ The argument resolves itself once more into the big brother argument, and I do not think I need develop it at any great length, but I would like to emphasize once more to your Lordships the fundamental change which is being effected by this transfer to the Commission. It seems to me most unfair to take the line that because the surface owner may have had the misfortune to have a bad tenant he is to be left to struggle with that position, and that the Commission are to take the royalties and leave him, as it were, to stew in his own juice. I will not add more at this stage, but with those words I beg to move the Amendment.174
Amendment to the Amendment moved—
Line it, insert the said words.—(Lord Balfour of Burleigh.)
§ THE LORD CHANCELLOR
My Lords, again I am afraid I am unable to agree on behalf of the Government to this Amendment, but for somewhat different reasons. As I understand it, the object of the Amendment is to impose upon the Coal Commission a liability for everything done by the lessees who had leases with which the Commission have had nothing at all to do as regards the granting of them, provided that the damage done is damage in respect of which compensation is payable and the liability is in respect of something done contrary to the terms of the lease. I am puzzled altogether to understand the precise meaning of this. The Commission are to be liable if the tenant has done something contrary to the terms of the lease. He may, of course, be entitled to let down subject to payment of compensation or he may have a lease under which he is not liable for having let down. The words of the Amendment are "contrary to the terms of a lease subsisting at the valuation date." I do not quite understand why the noble Lord puts in the valuation date and not the vesting date. In such a case the Commission are to be liable in respect of all these matters.
Tenants do no doubt occasionally commit breaches of the conditions and terms on which they get a lease, and, as I have said before, I am unable to see why the Coal Commission should be liable in such cases. I have already explained to the House, I hope not at wearisome length, that the Government are quite unwilling and unable to accept liability for something done by lessees from whom they have so to speak inherited as from the date of the vesting of the property in them. I am afraid I have already wearied your Lordships on this point. The Government can go no further than the Amendment which stands in my name and that of the noble Earl the Leader of the House.
My Lords, may I ask the noble and learned Lord Chancellor or the Leader of the House a question that has a bearing on this important Amendment moved by Lord Balfour? The question relates to the whole of the 175 matters we are now discussing. As I understand it, in future the Commission own these coal seams and they lease them to people who are going to work them, to mineowners.
§ THE LORD CHANCELLOR
May I interrupt the noble Lord? We are dealing here apparently, not with leases granted by the Coal Commission, but with leases granted by their predecessors.
It is a rather complicated matter and perhaps I can ask my question when we deal with the Amendment as a whole.
LORD BALFOUR OF BURLEIGH
My Lords, perhaps I ought to have developed my point more fully in moving the Amendment. I am not quite sure that the noble and learned Lord on the Woolsack is so innocent as he would have your Lordships believe. The case I have in mind is that of a lessee who withdraws support where he had no right to withdraw support. I have in mind a man working a shallow seam where pillars of coal are stipulated in the lease to be left for the protection of surface buildings. It happens to be a particularly valuable seam and the lessee is not a very scrupulous fellow. This is a case within my own knowledge. He goes after that seam and does damage which the lease was so drafted as to prevent him doing. Once again we come to the difficulty that the surface owner will not have the access he used to have. He will not have his mineral agent going every six months to look round and see what is going on. He will have the greatest difficulty in bringing home to the lessee this infraction of the lease. Once again I must tell your Lordships that it is not so simple as it appears to the noble and learned Lord. He says that at once when a crack appears you know that damage has been done. Those of your Lordships who have lived in mining areas and have had experience of these matters know that it is not quite so simple as all that. It is a very difficult matter to bring home responsibility even in a case which turns out to be a flagrant case.
Why the Government cannot do the fair, decent thing to these wretched surface owners who are having their property stolen at forty per cent. of its market value I cannot understand. It really 176 makes me very angry. If the royalty owners had had a square deal it might not have been so bad, but not only have they had a deal which I think perhaps soon the country will begin to understand is a very raw deal, in the words of my noble friend, but in addition to that the Government by this proposal go on scaling them down and scaling them down, putting them in the wrong, making things as difficult for them as they possibly can. I can only say once again that this is a measure of which the Government ought to be, and I think probably in their hearts are, ashamed, but I cannot get your Lordships to agree with me and I do not think it is much use pressing the point to a Division.
§ Amendment to the Amendment, by leave, withdrawn.
My Lords, before the main Amendment is finally agreed to I should like, if I am in order, to ask a question about it. This is the last opportunity before we part with the Second Schedule. As one of the saviours of the Government I would like to presume on that position and ask a question which really supports what has been so ably argued by the noble Lord, Lord Balfour of Burleigh. I am not speaking now of the great landlord who has leased coal for generations. I am thinking of the small freeholder who has bought his house or cottage.
LORD BALFOUR OF BURLEIGH
If the noble Lord had thought of that before he would have voted for my Amendment and we might have carried it.
I am thinking of it now. I go a great part of the way with the noble Lord, but on this occasion my noble friend Lord Addison persuaded me against it. Here you have the case of coal which is taken over by the Coal Commission and from time to time the Coal Commission lease it to various companies w ho work it. Earlier in to-day's discussion the noble Lord, Lord Gainford, moved an Amendment, the principle of which was accepted by the Government but which was not inserted in the Bill, to provide for notice being published in the London Gazette and in local newspapers. That notice was to be given by the Commission on the occasion of their first exercising their right to grant a lease. I ask your Lordships to suppose that some years have 177 elapsed, that the coal has been leased to perhaps two or three different tenants, and damage occurs through subsidence. I am the owner of a small freehold house which is damaged. How do I know who has caused the damage? By this Amendment I shall have to apply in the first place to the lessee, to the local secretary of the coal mining company. But how do I know who it is? I am a busy man, may be a small shopkeeper, who does not follow these things. Will it he known in the locality whenever a lease is granted, and will it be known when that lease alters the right of support? I am thinking, as I say, of small householders, perhaps thousands of them, who have suffered grievously in the past. They will know that there is this all-powerful Coal Commission in London to whom they can in the last resort apply, but meanwhile they have to go to the local people. What steps do the Government propose to let it be known to whom they should apply?
§ THE LORD CHANCELLOR
My Lords, the case where there is more than one colliery company working an underground seam is not usual, but I think that is the case under the hypothetical house with which the noble Lord is concerned. There are not many such cases, but I agree that I ought not to shirk the question because there are such cases. Usually one seam is let to one lessee and another seam to another lessee. Sometimes, however, there are as many as three or more people working under the ground in question. One colliery corn-pang perhaps is working a narrow seam and another company is working a wider seam. There is at the present time considerable difficulty in. such a case, when damage to the surface occurs, in determining who is liable, but I do not think myself that that difficulty will continue. I am expressing here an opinion which I think is right, and doing my best without notice of the question to answer it. I do not myself think that the difficulty will continue if paragraph (7) as it stands on the Amendment Paper is put into the Bill, for the reason that the owner of the house or cottage would, if he were a wise man, apply to each of the lessees who are working under his premises and request each of them to pay him for the damage that has occurred. If one of them replies, all is well.
I am sorry if I have not made myself clear. That was not my point. I was putting the case of one company. There is a change. The original company is perhaps liquidated and a new company formed to take over the lease. How are small local people to know that a new tenant has taken over the lease?
§ THE LORD CHANCELLOR
I confess that I had not understood that that was the noble Lord's point. The answer to that, I think, is that the existence of a new lessee would be known in the neighbourhood. If a company goes into liquidation that would be known.
§ THE LORD CHANCELLOR
Yes, even if it is a voluntary liquidation. If something of that sort takes place he might unfortunately take the view that the wrong person is liable, and if so the answer may be that the persons responsible are those who went out a week, a month, or a year ago. In those circumstances the person to whom the claimant went would very likely decline responsibility, rightly or wrongly, and if within a reasonable time he failed to discharge the liability, then the Coal Commission would come in. I think that the paragraph is so drawn that there is no real difficulty in such a case. The paragraph does not say that the lessee has got to be unsuccessfully sued or anything of that sort. He has got to fail to discharge his liability before you have recourse to the Coal Commission.
§ On Question, Amendment agreed to.
§ Third Schedule: