PART II. (Hansard, 26 May 1938)

HL Deb 26 May 1938 vol 109 cc680-713 680

§ 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,—

(a) damage arising from such working to that land, exclusive of buildings or works thereon; and
(b) subject as hereinafter provided, damage arising from such working to buildings or works thereon.

§ (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 obligation to make good or to pay compensation referred to in the preceding sub-paragraph shall be limited to damage which could not have been avoided by reasonable and proper precautions taken in the design and construction of the buildings or works to minimise damage in the event of subsidence.

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§ LORD DARCY (DE KNAYTH) moved, in sub-paragraph (4) of paragraph 2, to leave out "a restrictive" and insert "any." The noble Lord said: I have only seen this Amendment this afternoon for the first time and I am afraid the Lord Chancellor will probably tell me that there is very little in it, that it is all wrong and things of that sort. I rather imagine he will be right. But please do not think that I am unnecessarily taking up the time of the Committee, because there is a difficulty here and we want his assistance to enable us to deal with it. Under the Schedule any of the conveying parties to the imaginary conveyance that we have previously discussed, who might be subject to any personal liability on a restrictive covenant that adversely affects the coal or mine, have to be indemnified against the consequences of that covenant being broken. The difficulty we are up against here is that, although everyone knows quite well what a restrictive covenant is, not everybody has drawn his covenant to comply exactly with the term "restrictive covenant." We feel that where we have a covenant that is in substance a restrictive covenant, where the Commission could commit an act or refrain from committing an act, and they do intentionally commit an act, they ought to stand the racket if anybody is to stand the racket at all.

§ I have two examples that have been handed to me. One is that of a colliery company that was in negotiation with a royalty owner for a lease of certain coal and, in anticipation of the grant of a lease, drove certain headings into the coal. The negotiations were abandoned by mutual consent and it was agreed that it was necessary to leave a barrier round the heading. The colliery company paid to the royalty owner the royalty value of the coal left unworked and the royalty owner agreed that if at any future time he worked the coal, or the coal left unworked should be worked by a lease or a licence granted by the royalty owner, colliery A should have an allowance in respect of the payment that it had made. If they had only said that that coal should not be worked, all would have been well, but they said it should be worked on certain terms. Now if the Commission proceed to do it the wretched royalty owner would find himself liable in an action.

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§ THE LORD CHANCELLOR
Indeed he will not. With all respect to the noble Lord it is not so. He has read out that it is only if the royalty owner or his licensee worked that coal, he is to make an allowance. That is not going to be the case here.

LORD DARCY (DE KNAYTH)
I have been instructed by a very eminent firm of solicitors and I quite agree that this is rather a brief account that I read out. I should have thought it might have occurred to the Lord Chancellor that it would be almost inconceivable in such a case as that that the owner would have covenanted otherwise than with heirs, executors and assigns.

§ THE LORD CHANCELLOR
But his heirs, executors and assigns are not going to do it.

LORD DARCY (DE KNAYTH)
I should have thought that the Coal Commission would have been assigns. I thought that was the purpose of the Bill. There was another case where the owners of unlet coal covenanted with each other that in certain events, which had happened, neither of them, nor their respective successors in title, would let his coal without first offering to concur with the other in making mutual arrangements for joint working or a joint lease. I do not think that is a particularly good case, but it does illustrate principles. It is not a case where I think any damages would be given, but we are interested here in the class of covenant, not in the fact that it is not going to cause any damage. An eminent counsel, who I think is the counsel mentioned in the discussion which we had a short time ago, has advised that this covenant did not create any interest in the coal in favour of the owner, but the owner is under personal liability to pay damages if the covenant is not performed. I am not asking the noble and learned Lord to give us an Amendment here and now, but I hope he will give us some assistance. I want to submit that where a covenant which adversely affects the coal, and is really of a negative character—that some act shall not be done, or only upon terms—it affects the value of coal as between a willing buyer and a willing seller. I submit that this is a matter that can be dealt with in this Bill.

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§ Amendment moved— Page 53, line 3, leave out ("a restrictive") and insert ("any").—(Lord Darcy (de Knayth).)

§ THE LORD CHANCELLOR
I will try to be brief. In the other place this question was raised by a very learned counsel, who in the first instance wished to have a general covenant, or rather an indemnity against any sort of covenant which affected the coal, and it was the subject of discussion among lawyers in the House. It was pointed out to him that he could not suggest any covenant other than a restrictive covenant which adversely affected the coal, which could impose any liability on the owner after this Bill had resulted in an Act and the property had passed to the Commissioners. It was said that if any such covenant could be suggested the Government would see that something was done to protect the person who might have been liable under such covenant, and I have already said privately to the noble Lord that if he can now suggest any such covenant, other than a restrictive covenant, against which the owner of the coal, one of the conveying parties, requires an indemnity, it shall be considered, but my strong belief is that no such covenant can be suggested. My view is rather confirmed by this, that he has given us two examples which have been put before him, and in neither of them is the owner of the coal left under any liability whatever. Accordingly I see no reason for putting in anything which will only occasion trouble, and I shall ask the noble and learned Lord to withdraw his Amendment.

LORD DARCY (DE KNAYTH)
I think that my effort at prophecy when I introduced this Amendment has been carried out reasonably well, but I wish to thank the noble and learned Lord for replying in the very courteous way he has, and I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ LORD HASTINGS moved, in paragraph 6, to leave out all words after "subject to an obligation to" in subparagraph (1) to the end of sub-paragraph (2) and insert "pay reasonable compensation for damage due to letting down the surface of the land and buildings and works thereon. Any dispute as to the fact of such damage or the amount of such compensation shall, failing agree- 684 ment, be determined by arbitration." The noble Lord said: In this Amendment we have reached a subject in which, the principle of transfer having once been, we will not say agreed, but no longer disputed, this particular point is perhaps not only of the chiefest interest to mineral owners now, but a perennial and continuing interest to surface owners in the future. The proposals contained in the Bill as drawn had better be dealt with for the moment on their merits. This particular part of the Second Schedule deals with the transfer of such rights as are now possessed by the owner of surface and minerals to the Coal Commission, and inasmuch as the surface owner who is also the owner of the minerals is in a position to safeguard his surface rights in his lease, so does the Coal Commission desire to obtain the same powers that the surface owner now possesses.

§ If that were all we might almost leave it at that, but it is by no means all. In this Schedule there are contained certain words, which, although not unfamiliar in certain mineral areas of Great Britain, are extremely unfamiliar in others. There are the words inserted before "pay compensation," "make good or." There is a vast deal of good between making good and paying compensation, and whereas making good is permitted in certain leases, in the majority of leases it is not permitted other than by the consent of the lessor, which makes the entire difference. It is not to be supposed that a lessor and a lessee are in constant variance in the matter of making good damage which has been necessarily inadvertently caused. There are innumerable cases where the lessee does make good and does pay compensation, but it is always with the consent of the lessor, who has the right to insist upon the payment of compensation.

LORD STRABOLGI
"Proper compensation."

§ LORD HASTINGS
Yes by all means, proper compensation. It is the words "to make good" that I am concerned with. It means that the lessee under the Coal Commission will have the right either to make good or to pay proper compensation, whichever suits him—not the surface owner—best. That is a very serious interference with existing surface rights. But it is as nothing to that which 685 follows. There is a provision contained as the Schedule proceeds that unless the surface owner has complied with certain conditions in respect of the development of his surface he will not be entitled to compensation for damage in respect of that development. It is really hardly possible to exaggerate the effect that this must have upon the property and the potentialities of development of the surface owner after he has parted compulsorily with his minerals.
On the occasion on which I ventured to initiate a debate on Part I of the Bill, only last Thursday, I ventilated this subject at some length, but here we are now in Committee getting down to details, and this is the proper moment for dealing with it in detail. It is here proposed to impose upon the owner of the surface whose minerals will have been taken away from him an obligation which does not lie upon him. His lessee is under covenant to pay compensation for damage done upon the surface, and he, as I have said before and repeat, endeavours to have the best of both worlds and to arrange that the surface is not developed in such a manner as will depreciate the value of the minerals beneath his own surface, so that he may extract these minerals through the medium of his colliery tenant and later develop the surface. After the coal has been taken away from the surface owner, his interest no longer lies in coal; his interest will lie exclusively in the deveopment of the surface.
To impose upon him an obligation in rsepect of that development to which he is not now liable is to place upon him a financial liability which may be exceedingly serious. It will at least hinder him in his development, hinder him in any effort he may make to recoup himself for the losses which this Bill inevitably inflicts upon him, and it will incidentally make it difficult also for those whose interest in coal never was great, but who desire to occupy the surface and have had that surface withheld from them because the owner of that surface has desired not to hinder his colliery tenant.

§ THE LORD CHANCELLOR
I am loath to interrupt the noble Lord even for one moment, but I thought he was aware, and certainly a message was sent 686 to him from which he would be aware, that on this point on which he is dilating with such eloquence the Government are prepared to make a full concession.

§ LORD HASTINGS
The noble and learned Lord has pleased me more than I am able to say, but no message was brought to me to that effect. It was hinted to me that the Government might be prepared to give a concession in this matter. If I had known, I should have spared the time of the Committee and my own voice. If the noble and learned Lord is prepared to give way I shall most gladly sit down and welcome what he has to say.

§ Amendment moved— Page 54, line 11, leave out from the first ("to") to end of line 27 and insert the said new words.—(Lord Hastings.)

§ THE LORD CHANCELLOR
There are two questions which arise here, and I do not propose as at present advised to deal with them quite in the same way. The first point is whether it is wrong to give a working colliery owner an option to make good or to pay proper compensation. Your Lordships will observe that this is a matter which does not in any way affect the Commission. This is a matter for the ordinary people who are going to work the coal of this country throughout the land. My information, and I would add my experience, with regard to colliery leases is that it is the commonest possible practice to give the lessee who is letting down some surface an option as to whether he shall make good or pay proper compensation. I did not want to interrupt the noble Lord, but I thought he had finished what he wanted to say on that point.
With regard to that, as at present advised the Government do not make a concession, but with regard to the other point which he was dealing with when I am afraid I interrupted him but without any intention of being discourteous, the Government are prepared to omit the various provisions contained substantially in subparagraph (2) of paragraph 6, under which there is a qualification with regard to the nature of the construction and the nature of the building. With respect to that we propose to say that we do not insist on it. It is true we run a certain risk there, or rather the lessee will run a certain risk, for the reason that it has 687 been hinted there are sometimes buildings put up, when subsidence is approaching, which it is known are going to tumble down; but it is for the lessees to say whether they wish to insist upon the clause as it is—that is to say, the people who are going to work the coal. The House must determine the matter as it thinks fit, but so far as the Government are concerned we are prepared to omit sub-paragraph (2) which will entail, a little alteration of (a) and (b) in subparagraph (1), lines 12 to 15. That is only verbal.
Now having omitted that, there remains only the question of making good or paying proper compensation. With regard to that I should like to remind the noble Lord, and to appeal to some of the noble Lords who have actual experience of this matter, that there are quite a number of large colliery companies who keep a staff accustomed to make good minor damage when it takes place on the surface, who do it with extraordinary expedition to the complete content of the people on the surface who have suffered some minor damage, it may be, to a shed or to the ceiling of a room or something of that sort. I am told there are cases when the damage, such as it is, resulting from long-wall working, is made good within twenty-four hours after it is done. I should suggest to your Lordships that it would be extremely unwise to impose upon the tenants who are going to work the coal in this country an obligation in every case to have a quarrel prima facie, unless the person on the surface is a very high-minded person, as to the precise sum which is involved in putting right a fence or making some minor repair to some farm buildings or even to cottage buildings. Far better, if the working colliery company is in a position to do it, that they should send in their own men and make the thing as good as new straightaway. That, as I submit and according to my instructions, is so common a provision that it cannot be suggested there is anything unreasonable in it. On that point, therefore, I propose to ask your Lordships not to accept the Amendment of the noble Lord. On the other point I am fully accepting what he wants, subject to alterations in sub-paragraph (1) between lines 12 and 15.

§ LORD HASTINGS
If I might be permitted to deal first with the lesser point 688 of making good, the noble and learned Lord Chancellor states with perfect truth what is the custom in the great majority of colliery districts of Great Britain. It is no less than the truth to say that in the vast majority of cases the colliery staff does in fact make good the damage which is done. I agree that it would be most unreasonable to insist that they should in all cases pay compensation. It would not react to the advantage of the surface owner that that should be done. But he will not forget that at the present time making good is always done with the consent of the lessor, the consent of the surface owner. It is done as a matter of convenience and always with the consent of the lessor. If he would agree to insert "the consent of the lessor being necessary thereto" all the prospect of trouble and compulsory powers and the rest would be done away with. The lessor's rights would be safeguarded and colliery proprietors would not be put to greater expense than now. But not all colliery proprietors are model lessees. There are many whose practice and custom is above all reproach, but there are, as in all walks of life, some who are not entirely reliable. If you allow them to choose between making good and paying compensation you will have buildings, in respect of which compensation ought to be paid on account of damage, dealt with by unsatisfactory colliery lessees whose ideas of making good are not those which could commend themselves to any landlord. If it was made subject to the permission of the lessor there would be no further argument.
On the larger point I am more than grateful to the Government for having given way on this very vital matter the importance of which really cannot be exaggerated. I cannot speak with knowledge, but I hope that the lessees, in other words the representatives of the Mining Association, will not feel disposed to dispute the propriety of what the royalty owners have put forward as essential to them and which the Government have been courteous and gracious enough to acknowledge. I do not know how we are going to deal with the framework of the Amendment, which is neither to be dropped nor carried, but I should be very content to leave that to the Lord Chairman and the Government because I am confident that that will be put right.

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§ VISCOUNT HORNE OF SLAMANNAN
May I ask the noble and learned Lord Chancellor exactly how this is going to read now. As I take it, it will read from line 10: … subject to an obligation to make good, or to pay proper compensation for damage arising from such working to that land, exclusive of buildings or works thereon— then we omit everything thereafter. Am I correct in that assumption?

§ THE LORD CHANCELLOR
I think that is right. I would like my draftsman to go through it, but that is as I understand it.

§ VISCOUNT HORNE OF SLAMANNAN
That would mean, as I read it, that compensation would be paid for damage to the land but no compensation would be paid for any buildings.

§ THE LORD CHANCELLOR
I am sorry. That is just what I did not mean. I thought you said "inclusive" but I understand it was "exclusive" as you read it. It will read: to pay proper compensation for damage arising from such working to that land, including any buildings or works thereon.

§ VISCOUNT HORNE OF SLAMANNAN
Of course that makes a complete difference.

LORD STRABOLGI
I have listened with the greatest attention to this amiable exchange between the noble and learned Lord Chancellor and the noble Lord, Lord Hastings, and I am not quite clear what is proposed. I think we are entitled to know, and for this reason. Earlier in the proceedings on the Committee stage of this Bill, I had the privilege of moving an Amendment—which, of course, was not accepted—in an attempt to safe guard people from damage by subsidence. As far as I can gather, those who speak for the Mining Association—

§ VISCOUNT HORNE OF SLAMANNAN
My noble friend must not regard me as speaking for anything at all except as a member of this House.

LORD STRABOLGI
I was not quoting the noble Viscount, Lord Horne, but the noble Lord, Lord Hastings. He said that those who were speaking for the Mining Association—

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§ LORD HASTINGS
But I said they were not in this House.

LORD STRABOLGI
I did not mean to say anything offensive at all. The noble Lord has, quite rightly, had expert advice.

§ LORD HASTINGS
That is perfectly right.

LORD STRABOLGI
From the people who advise the Mining Association. I am not imputing anything to the noble Lord or to any other member of this Committee. I was merely speaking of those who advised the noble Lord on behalf of the Mining Association. Is that right?

§ LORD HASTINGS
That is quite acceptable.

LORD STRABOLGI
They are satisfied with the concessions that the Lord Chancellor has had wrung out of him at a late hour, the third late night sitting on this Bill. But I understand from an interjection made by the noble Lord, Lord Balfour of Burleigh, that those who are advised by those who advise the royalty owners—I hope I am not going to give offence—are prepared to compromise or to accept this. I make no apology for asking this question: What is happening to the rights of the unfortunate people who built houses on the land perhaps carelessly or in ignorance, poor people who suffered severely from subsidence? Is their position going to be worsened as a result of this paragraph?
SEVERAL NOBLE LORDS: No.

LORD STRABOLGI
I think we are entitled to know that.

§ LORD HASTINGS
It will be strengthened.

LORD STRABOLGI
I am not quite sure about it. I think that the words in the Bill were vague enough as it was and I do not see what advantage we get by combining (a) and (b) of subparagraph (1) of paragraph 6.

§ THE LORD CHANCELLOR
Combining (a) and (b), if the noble Lord will allow me, means simply this. As the Schedule read, there was a qualification about the liabilities with regard to buildings—namely, the qualification contained in sub-paragraph (2). It is now going to run that there is to be compensation for "damage arising from such working to 691 that land "and damage" arising from such working to buildings or works thereon." That is not going to hurt any living human being except possibly the people who have to pay. The persons who own land and buildings whom the noble Lord is desirous of protecting are going to get the benefit of this. I rather protest against the suggestion that anything has been wrung out of the Government, or that there has been an eleventh-hour compromise. That is not so at all. An Amendment has been put down on a paragraph in this Schedule, which after all is a very complicated and difficult matter and involves questions of law which are by no means easy; and after long consideration the Government have thought it fair to make the concession that I have made. There has been no compromise and nothing wrung out of the Government whatever.

LORD STRABOLGI
Suppose there had been something wrung out of the Government that is what the noble Lords are here for. That is their job. That is why the noble Lord, Lord Hastings, I presume, is on this side of the House although he usually sits on the other. We are here to wring concessions from the Government where we think concessions are called for. With the greatest respect to the noble and learned Lord he is the head of the legal profession of this country, but it so happens that I have done more active political work in one House of Parliament or the other than he has. It is the business of Members of Parliament in either House to fight as best they can for what is just, and if they can wring concessions out of the Government, then good luck to them! I tried myself to do so earlier in the afternoon, and if more of your Lordships had supported me, I should have succeeded.
When the Government have pressure brought to bear upon them, they make concessions. The noble Earl who leads your Lordships' House knows this very well, because he has a long acquaintanceship with another place. So has the Lord President of the Council, if I might draw him into this. Would they please advise the noble and learned Lord Chancellor that when I suggest that the Government have had something wrung from them I am only complimenting the Parliamentary skill of 692 those who are getting some concessions. What I rose for was to probe a little further into the position of a man who owns a house which is suffering from subsidence. Is his position worsened by this? The Lord Chancellor says "No." Then I come to the next question. I am not very familiar with legal phraseology used in mining leases and similar documents, but if you look at line 11 it says, "to pay proper compensation." I am not familiar with any such term as "proper" in a legal document.

§ THE LORD CHANCELLOR
I thought perhaps the noble Lord was objecting to the use, in connection with compensation, of a word so simple as "proper," and would prefer to have the word "improper."

LORD STRABOLGI
I have always been taught that qualifying adjectives were dangerous in legal documents and Acts of Parliament. In the Amendment drafted by Lord Hastings and his friends "reasonable" is adopted, to which I objected. Why should it not be put down plainly as "compensation"? I think I have a right to ask whether, as a result of these exchanges and these comings and goings, with the bargain that has been struck—a perfectly proper bargain—the position of those who are likely in the future to suffer from subsidence will be worsened. I should be very glad if the noble and learned Lord could give an assurance.

§ LORD HASTINGS
I should like to say a word about this. Lord Strabolgi is quite properly agitated as to whether the small house-owner is going to suffer or be benefited. He forgets that the mineral owner is to be extinguished as such, that he is in future, where he is both the owner of the surface and of the minerals, to be the owner of the surface only, and that anything he can suggest as an Amendment should be designed to improve the situation of the occupier, tenant or freeholder of the surface. Clearly it must be to the interest of the man who is going to be interested only in the surface to safeguard the interests of others who are interested, as well as himself. Accordingly this particular Amendment, of which the Government have approved, is going to improve the position of all upon the surface, big or little, freeholders or tenants. That he can take from me to 693 be the fact, or we should not have sought this Amendment. In so far as he has suggested that this concession has been wrung from the Government, I think the very fact that I began to develop the case as I did, and was checked by the Lord Chancellor, proves that I did not know that the Government were going to give way. As for wringing, indeed I had not begun to wring. I can but reiterate the gratitude which I feel to the noble and learned Lord, but I had only an inkling and nothing more of what was going to happen, although I admit I was confident as to my ability to carry the House with me.

LORD STRABOLGI
I thank Lord Hastings for giving me the explanation that I required.

VISCOUNT ELIBANK
I would like to know what will happen in the case of a dispute as to whether proper or improper compensation has been awarded? I understand from the Lord Chancellor that the words originally in the Bill regarding disputes will not be included in this paragraph. Is that the case? If so, what will happen if there is a dispute?

§ THE LORD CHANCELLOR
If the noble Lord will wait one minute there is another Amendment on the Paper which will deal with that question. That is the Amendment which stands in the name of Lord Hastings.

LORD BALFOUR OF BURLEIGH
May I add one word of thanks to the Lord Chancellor for the concession he has made. I feel very grateful to the Government, because this happens to be a point on which I personally felt very strongly. I would like to ask the Lord Chancellor whether he is now moving the Amendment in the form which he has described to the House because I personally would attach great importance to seeing this Amendment in that form when we reach the next stage of the Bill. I do not want it left on the understanding that something is going to be put in on the next stage; I would like to se it in now.

§ VISCOUNT BERTIE OF THAME
This Amendment has been on the Paper for some time, and I think in the past it has been the Government's practice when they are willing to compromise on an Amendment to put down in writing the rival Amendment, so that the two can be con- 694 sidered together. It is very inconvenient that all these Amendments on which the Government are making concessions should be held over till Report.

§ THE LORD CHANCELLOR
I am willing to take whatever course is the most convenient to your Lordships. What I am told is that it would be better perhaps, and more satisfactory, if Lord Hastings were to withdraw his Amendment on an undertaking that we should submit upon Report the extent to which we agree with the Amendment. This will be the position then, that we shall strike out of the existing paragraph the words in (a) and (b), replacing them by the words which I in a sense agreed with the noble Viscount, Lord Home, and that we should also omit sub-paragraph (2). That will leave the clause with the words "make good, or"; and with regard to that it will be open on Report for Lord Hastings to move to strike them out by Amendment if he thinks so to do. If that is the convenient course, as I think it is, perhaps he might on that understanding withdraw the present Amendment.

§ LORD HASTINGS
The Lord Chancellor's proposal is quite satisfactory to me. He will understand of course that on Report there must be a suggested Amendment to the words "make good, or." I do not propose to cut them out again; I should propose to add "with the consent of the lessor," but this present Amendment I now withdraw.

§ THE LORD CHANCELLOR
The Government are going to leave in the words, and it will be for the noble Lord, Lord Hastings, to present another Amendment.

§ LORD HASTINGS
I understand. That is quite agreeable to me.

VISCOUNT RIDLEY
Do we understand that the noble and learned Lord is to include in his Amendment such part of the Amendment suggested by Lord Hastings as refers to compensation which "shall, failing agreement, be determined by arbitration"? I understand from something he has just said that he anticipated that would be so.

THE LORD CHAIRMAN
The Question is whether the Amendment is, by leave, withdrawn.

LORD BALFOUR OF BURLEIGH
Surely the next thing, Lord Hastings 695 having withdrawn, is that we should have the Amendment proposed by the Lord Chancellor, otherwise it does not become part of the Bill as we understood it would do.

§ LORD HASTINGS
That is so. It will not be in the Bill.

§ THE LORD CHANCELLOR
I need not say that if I am wrong in this I shall admit at once, but what I thought was understood was that on the Report stage paragraph 6 would be as it is, (a) and (b) being altered as mentioned, and sub-paragraph (2) coming out. There is no difficulty, is there?

§ LORD HASTINGS
There will be some difficulty when the Bill is reprinted because unless an Amendment is made it will be reprinted as we leave it exactly as it is now, and that is not desired.

§ Amendment, by leave, withdrawn.

§ THE LORD CHANCELLOR
With the leave of your Lordships, then, I should desire to move the Amendment. Can I move it without its being at this moment even in manuscript? I am sure I can put it right. I beg to move that paragraph 6, sub-paragraph (1), of the Second Schedule shall be altered by leaving out all words after "land" in line 12 to the end of the sub-paragraph, and replacing them with the words damage arising from such working to that land or for damage arising from such working to the buildings or works thereon. Secondly, I request leave to move that sub-paragraph (2) of paragraph 6 be omitted.

§ Amendment moved— Page 54, line 12, leave out from ("land") to end of line 15 and insert ("damage arising from such working to that land or for damage arising from such working to buildings or works thereon").—(The Lord Chancellor.)

§ LORD HASTINGS
That seems to be perfectly in order, but there is one point that does arise. In withdrawing my Amendment, and permitting it to be replaced by the words the Lord Chancellor has suggested, I dropped out any provision for disagreement. I think we shall have to have some provision provided for disagreement at the end of my Amendment, so that it "shall be determined by arbitration." I am not very particular whether it is determined by 696 arbitration or by the Court, but we must have some kind of provision for determining disagreement.

LORD PHILLIMORE
I apologise for interfering, but I cannot help thinking we are labouring under great difficulty. Is it not possible for us to adopt a precedent which I understand has been recently discovered and postpone this particular paragraph?

§ THE LORD CHANCELLOR
May I suggest to Lord Hastings that the matter which he has just mentioned, which of course has to be settled, is one of the matters which could easily be settled on Report stage, the Amendment which I have already moved being assented to. So there will be two questions. He can raise his "to make good or" and, also how the question of disagreement shall be determined. May I add that the noble Chairman, I think, has not yet got an Amendment with regard to the omission of sub-paragraph (2).

THE LORD CHAIRMAN
That is the second Amendment. I have that.

§ LORD HASTINGS
I am agreeable to that. I merely mentioned it as a saver. There are the two points outstanding, the question of making good and the question of fixing the method of settlement of disagreement. I am quite agreeable to that procedure.

§ On Question, Amendment agreed to.

THE LORD CHAIRMAN
I think the noble and learned Lord should move the Amendment to omit sub-paragraph (2) now.

§ THE LORD CHANCELLOR
I beg to move that sub-paragraph (2) be omitted.

§ Amendment moved— Page 54, line 16, leave out lines 16 to 27.—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ LORD AMULREE moved, after subparagraph (1) of paragraph 6, to insert: (2) On granting to any person the right to withdraw support from any land the Commission shall require that person to give adequate security for the payment of any compensation likely to become payable as a result of the exercise of that right. The noble Lord said: This Amendment is to secure that there should be some proper provision for compensation from any person who may have been found liable for 697 damage. There should be adequate facilities for payment of compensation. This Amendment is in general terms and applies generally, but I move it more particularly with reference to local authorities. The Association of Municipal Corporations have had this matter under consideration, and they take a rather serious view of what may happen in the future. In Clause 29 certain provisions are made for the protection of local authorities in respect of their statutory undertakings. It provides that in the case of works carried on by a local authority, such as tramways, gas, electricity, water, sewage disposal and so on, they shall vest in the Commission subject to the restriction that the coal should not be worked without the consent in writing of the persons in whom the undertaking is for the time being vested.

§ That provision is a general one for the protection of all statutory undertakers and ought to apply also to a local authority. Then a later subsection makes provision for the conditions under which consent may be given and that gives adequate protection for a local authority in certain circumstances, but the section omits certain other matters affecting a local authority. For example, the site of a town hall or a building site is not covered by Clause 29. We therefore come back to the question of compensation under the Schedule. A local authority may have gone to very great expense in securing the freehold, including the coal, of a site upon which to build a town hall or a site required for a housing scheme. They have done that in order that they may secure for all time support against subsidence.

§ Under the Bill the coal under such land passes to the Coal Commission and under the Schedule the Commission have the right to grant permission to withdraw support subject to the obligation to pay compensation. There is no guarantee that the person causing subsidence will be able to pay compensation. My Amendment is to this effect: On granting to any person the right to withdraw support from any land the Commission shall require that person to give adequate security for the payment of any compensation likely to become payable as a result of the exercise of that right. To go back to the local authority, they have secured land on which to build perhaps a town hall or museum, and they 698 have secured the freehold including the coal in order that they may be secure for all time of adequate support for the building. This Bill comes along and takes away that security, takes away from them the support of the coal, and damage is done. There is no guarantee under the Bill that the person liable to pay compensation will be in a position to pay it. All I ask is that it shall be the duty of the Commission to require a person to give adequate security for the payment of compensation. It is putting no burden on the Commission and it seems to me a reasonable proposition that some such provision should be made.

§ Amendment moved— Page 54, line 15, at end insert the said words.—(Lord Amulree.)

§ THE LORD CHANCELLOR
This would be entirely a new departure in legislation of this character. There is no reason that I have been able to see why in this particular case, and in no other case, a man should be required to give security for something which may never happen, and, if it happens, may be without any possibility of determining how much security should be given and without means of knowing when the security would be required to be had recourse to. It is common to have cases where people are allowed to let down and there are powers in the Mines (Working Facilities and Support) Act, 1923, under which the Railway and Canal Commission can do it. But I have never yet heard of any such provision as this, and I think it would be imposing upon the working lessees a very unfair burden to compel them to give what is called "adequate security," which means a complete guess as to the amount which is necessary in respect of possible damage done at some later time. We have the provisions that compensation is to be given, and I suggest to the noble Lord that this Amendment is one which should not be pressed.

§ VISCOUNT HORNE OF SLAMANNAN
The noble Lord, Lord Amulree, has raised a very important point. It is one of the extraordinary features of this Bill, which has been entirely unnoticed, or at least uncommented upon, that for the first time in the law of England, so far as I know it, the right to support has been withdrawn from the surface owner. It is the first occasion on which any person is entitled to work coal without providing support.
699 A person who would have been prepared to sacrifice whatever he got from the coal in order that his ancient mansion house might be preserved has no longer, under this Bill, got the right to support. The coal can be mined by this Coal Commission under any place in the country on payment of compensation but without any regard to any amenities which have previously been held to be sacred to the proprietors of ancient properties. That in itself is a very striking feature of this Bill. But I think that if you are going to have this extraordinary change in the law, at least you must be assured that the person who is working the coal under, let us say, some very expensive house or establishment shall be in a position to pay for it.
I do not pretend to say to your Lordships to-night what is the best way to deal with the matter. I do not pretend that the right way is, as Lord Amulree suggests, that security should be exacted from the person who is actually working the coal. I am rather inclined to say that the Coal Commission should be the body ultimately responsible for this. Of course, the Coal Commission need not be damnified in this matter, because it is always in their power to put into the leases which they grant such stipulations as they choose. Ultimately, however, as it seems to me, if the Coal Commission have this power to undermine anybody's property or anybody's house in the future, it is the Coal Commission that should be ultimately liable to see that these people are properly compensated. I do not pretend to-night to suggest what the real solution is, but I think we must seriously take this point into consideration before the Report stage.

LORD STRABOLGI
The noble Viscount said, very much better, what I had intended to say myself, and I am very glad that I saw him through the back of my head getting up, and sat down in time. I would only add this in supporting the noble Lord, Lord Amulree, in this matter. The learned Lord Chancellor tells us that this is an entirely new principle in law. I am very diffident of doing so, but I am afraid that I must dispute that. The Lord Chancellor has, I presume, a motor car, or drives in a motor car. There is a third-party risk insurance policy in respect of that motor 700 car without which it would be illegal to drive it. That is one example. This is really what Lord Amulree is asking for: a third-party risk insurance. There is also a case in commerce of people in a position of trust having to take out fidelity bonds. The Lord Chancellor said that this is an entirely new principle in law, that you have to make provision for something which has not happened and which may happen.

§ THE LORD CHANCELLOR
I thought I said "the law in relation to this subject," but if I did not, I intended to say it. I was not dealing with fidelity bonds!

LORD STRABOLGI
I am within the recollection of the Committee that the Lord Chancellor did not use those words. If he meant to use them, I accept that, but it is not a new principle in the Common Law to-day that such a provision should be made. It is in the nature of an insurance policy, and especially after the argument we have heard from Lord Home, I think there is much more in this than the Lord Chancellor allowed in his reply, and I hope Lord Amulree will stick to his point and find some form of words.

THE EARL OF CRAWFORD
Lord Amulree speaks with so much authority in this House, and represents so powerful a group of public interest, that anything he says requires very close attention from this House, but I do not think the Lord Chancellor's reply was very convincing. I think he showed that it is difficult to assess, to-day, damage which may happen twenty, thirty, or fifty years hence. Those are technical answers to a very serious proposition, but of course this is natural and inevitable from the dangerous principle underlying this Bill, of severance of ownership of coal from ownership of the surface. What Lord Home said just now is perfectly correct. There are any number of great and heavy buildings in this country which are being protected by having pit pillars beneath them. Every famous house in a mining area has a coal pillar beneath it. When the lease of Grassmoor pit comes to an end the Coal Commissioners will be entitled to let that property which is worth thousands of pounds to the neighbouring colliery, and the owner of Hardwick Hall will have no redress at all, and if the mining pillar gets to a certain point it is 701 likely to fall to the ground. I think that the Government really must give a rather more considered reply, and not deal with this on the point of difficulty of making assessment, and that the Coal Commission shall be under an obligation to take certain circumstances of this character into consideration.

LORD BALFOUR OF BURLEIGH
May I say that the next Amendment on the Paper deals rather more drastically with this point.

THE MARQUESS OF LOTHIAN
I understand that the position is not quite like that which is stated by the noble Viscount, Lord Horne, and that the Coal Commission will not be perfectly free to give leases for the mining of coal, because there is a right of appeal to the Railway and Canal Commission, and that that Commission will be able to restrain the Coal Commission from mining any coal under the four heads mentioned.

§ VISCOUNT HORNE OF SLAMANNAN
Yes, but those are very exceptional cases. For example, coal under a mansion house will be mined in spite of the desire of the owner of the mansion house to keep his house intact. But there is no provision for the certainty of due compensation being paid in the event of the man who works the coal not being able to pay it.

THE MARQUESS OF LOTHIAN
The Amendment which I moved gives the right to any person to apply to the Railway and Canal Commission to impose restrictions on the work. The Lord Chancellor assured me that that was in the Bill as it stands.

§ VISCOUNT HORNE OF SLAMANNAN
What clause?

THE MARQUESS OF LOTHIAN
That is Clause 30, page 30, line 16. I moved an Amendment in order to ensure the right of private individuals to make that application, and the noble and learned Lord in his answer assured me that that right was already preserved in the Act.

§ THE LORD CHANCELLOR
May I intervene? The noble Marquess is perfectly right, only the view of what I said is not quite right. The noble Viscount, Lord Home, must forgive me for remarking that when I sent him over a copy of 702 the Act of 1923, I am rather sorry that he did not have time to read it. There are two things clear under the Act. Under Section 8 any person having an interest in land who is not entitled to support, or sufficient support for any buildings or works—not statutory undertakings—erected or constructed, or intended to be erected or constructed, on or below the surface, who alleges that it is not reasonably practicable to obtain such support by private arrangement can go to the Board of Trade; and on the Board of Trade considering the application, and thinking that a prima facie case is made out, the matter goes to the Railway and Canal Commission. And that has been done ever since 1923, and so far as I know no difficulty has arisen in connection with it. The noble Marquess was perfectly right when he said that, in answer to a suggestion that that ought to be saved by the Bill, I pointed out that that section remains as it is. And, after all, 1923 is a good long time ago, and nobody has ever suggested, so far as I know, that there is any difficulty about it at all.
Then there is the other point. It is said there is a difficulty in connection with getting a right to let down the surface. The same Act applies to that. There is practically no coal in the land which can be worked at all without some risk of the surface being to some extent let down. Every landowner knows that. It may be a few inches, it may be much more. It depends on a number of circumstances, but you cannot be sure of working coal without letting down to some extent the surface. It was for that reason that the Act of 1923 was passed, and gave distinct right and clear authority to the Railway and Canal Commission to give rights to any person to work the coal whose proper and efficient working was unduly hampered by the inability or failure to obtain such rights, or an ancillary right. He could apply and could be given such ancillary rights as are mentioned in Section 3, subsection (2) of the Act of 1923, the first paragraph of which is "(a) a right to let down the surface." If you go a little bit further on you will find the circumstances or the conditions on which that right is granted, which are to be found in Section 6 (4), where it is provided that in granting the right to let down the surface regard shall be had to the value of the minerals, the value of the buildings 703 which they are to support, and so on. Really the truth is that this right to let down, which it is suggested is a completely new right given to the Commission, is nothing of the sort. It has existed since the Act of 1923.

§ VISCOUNT HORNE OF SLAMANNAN
The difference is that the Coal Commission are entitled to go ahead with their working and withdraw support without application to anybody at all. They have got an initial right to withdraw support without requiring consent from anybody. That has never happened before.

§ THE LORD CHANCELLOR
Of course it happens every day where there is some sort of agreement. It is not a surprising thing. It happens constantly; but it was suggested by my noble friend, as I understood—I am within the recollection of the Committee—that a right to let down the surface to anybody was an extraordinary and unusual thing. If he did not say that, I am wrong, but, if he did say that, he is wrong, and my recollection is that he did. The other point is this question about buildings. The man who wants to support buildings has been entitled to get that support, in an appropriate case, ever since the Act of 1923 came into force. I am sorry to have interfered with the observations of the noble Marquess, but I did want to make it clear that we are considering something on a basis, up to the present time, that really has not been completely accurate. All these things have been considered. The noble Viscount seems to think that these provisions were inserted in the Bill without any proper consideration. There has been the fullest consideration given to them, and he must forgive me for saying that his criticisms are a very modern and recent acquisition as far as he is concerned.

§ VISCOUNT HORNE OF SLAMANNAN
Of course, I do not venture to dispute any question of law with the noble and learned Lord Chancellor, but the Committee will be in recollection of what I actually stated. It is perfectly true that for the first time in the legislation of this country, without any consent at all, the Coal Commission have been granted power to withdraw support from the surface. That is the proposition that I advanced, and probably it is a misapprehension as between the Lord Chancellor 704 and myself that we are differing upon this subject. But I reiterate that that is a power that has been granted for the first time, and it has to be very carefully safeguarded. We think that the Commission that is granted that extraordinary power should become the body ultimately responsible for such compensation as may need to be awarded, and that is the proposition I put to your Lordships.

LORD STRABOLGI
Are we to understand that where this old right that has existed so long is granted, if damage results, compensation is to be paid?

§ THE LORD CHANCELLOR
Certainly.

LORD STRABOLGI
In that case why not see that the men taking the lease are not men of straw and that they put up securities and collateral as in the case of new insurance companies? The Leader of the House, who has been recently at the Board of Trade, knows you cannot start a new insurance company without putting up securities. I think it is the same with friendly societies. There are several cases where this sort of reserve fund is required. I am not thinking so much of the great mansions like the historical building mentioned by Lord Crawford. These people can look after themselves.
SEVERAL NOBLE LORDS: Oh, oh!

LORD STRABOLGI
They can brief lawyers and their watchdogs to look after their interests. I am thinking of the smaller people in great numbers, though I agree that great mansions over coalfields have an equal right of protection. May we have an answer to that point?

§ THE LORD CHANCELLOR
If the House will allow me to answer, it is this is it not? Has anybody ever heard of a colliery undertaking being carried on by a man of straw? The lease is granted by the Coal Commission which will require all sorts of work to be done, and the notion that some completely impecunious person is going to undertake the carrying on of an ordinary colliery really is a little remote, but if there is such a person it is no different. It seems to me that this is only liability for damage you can do in the ordinary way. People who commit torts have got to pay, but it is not possible in the ordinary way to 705 get security before the damage is actually done. In any case it does seem to me that this is a most unfair obligation to attempt to put upon the ordinary collieries of this country.

LORD STRABOLGI
Has not the Lord Chancellor heard of the many cases of working men who, because colliery companies have gone bankrupt, have been deprived of their damages under the Workmen's Compensation Act? Is it to be supposed that colliery companies never go bankrupt? Has the Lord Chancellor never heard of Hatry? How many collieries did he control? I am sorry to say it, but the Lord Chancellor will not treat certain arguments put to him with the seriousness they deserve. I say that with all respect. He has not done so in the case of the Amendment of my noble friend Lord Amulree.

§ LORD CROMWELL
May I ask whether the Government are prepared to make the Commission responsible? If they are, it would end the whole question. If they are not, they must find some way out.

§ LORD AMULREE
I have listened with great attention to the observations of the Lord Chancellor. As far as I can make out his argument amounts to this, that my Amendment is something new to the law and therefore should be ruled out. My answer to that is that this Bill is something entirely new to the law and therefore my Amendment is in order. I mentioned the case of the local authorities acquiring a building site under the Housing Acts at great expense, and the land being afterwards let down. This Bill comes along and says that under certain

706

§ circumstances the support may give way, and, while compensation is payable, the company that has to pay or the man who has to pay may be a company or a man of straw. What is the use of that? I submit that the proper course is for the Commission, when they grant a lease, to require from the person to whom the lease is granted some adequate security so that compensation will be paid if compensation should be found to be payable.

§ LORD GAINFORD
May I point out a case in which such a security is quite impossible? There are in the County of Durham probably sixty small groups of miners working a mine. There may be only three or four men working in one of them. I know of a case of two men, one of whom works underground and the other sells the coal above. It is necessary in the interest of these sales in these tiny places and scattered all over the coalfield, that the community served by these miners should get their coal at a regulation price, and that the miners should get their living in that way. It is quite impossible to expect a group of three or four, or perhaps eight or ten, miners to put down security in connection with letting down the surface. I think it is quite unreasonable to say that in every case security should be produced to cover the amount of damage that may be done. Surely it is the duty of the Commission when they let coal to estimate the extent to which damage may be expected and if they are wrong in their estimate they ought to be responsible.

§ On Question, Whether the proposed words shall be there inserted?

§ Their Lordships divided:—Contents,41; Not-Contents, 33.

707

CONTENTS.
Northumberland, D.	Ridley, V.	Lamington, L.
Wellington, D.		Middleton, L.
	Aberdare, L.	Mildmay of Flete, L.
Bathurst, E.	Amulree, L. [Teller.]	Mowbray, L.
Dartmouth, E.	Basing, L.	Oxenfoord, L. (E. Stair.)
Fitzwilliam, E.	Belper, L.	Palmer, L.
Grey, E.	Brassey of Apethorpe, L.	Redesdale, L.
Iddesleigh, E.	Cromwell, L.	Sandhurst, L.
Lindsay, E.	Darcy (de Knayth), L.	Sherborne, L.
Lindsey and Abingdon, E.	Fairlie, L. (E. Glasgow.)	Shute, L. (V. Harrington.)
Radnor, E.	Gerard, L.	Stafford, L.
	Hampton, L.	Strabolgi, L.
Bridgeman, V.	Holden, L.	Wigan, L. (E. Crawford.) [Teller.]
Elibank, V.	Howard of Glossop, L.
Hereford, V.	Iliffe, L.	Wolverton, L.
NOT-CONTENTS.
Maugham, L. (L. Chancellor.)	Munster, E.	Ebbisham, L.
	Onslow, E.	Fermanagh, L. (E. Erne.)
Hailsham, V. (L. President.)	Plymouth, E.	Gage, L. (V. Gage.) [Teller.]
	Poulett, E.	Gainford, L.
De La Warr, E. (L. Privy Seal.)	Spencer, E.	Hastings, L.
	Stanhope, E.	Hutchison of Montrose, L.
		Luke, L.
Bath, M.	Samuel, V.	Saltoun, L.
Dufferin and Ava, M.		Stanley of Alderley, L. (L. Sheffield.)
	Addington, L.
Airlie, E.	Cadman, L.	Strickland, L.
Birkenhead, E.	Clanwilliam, L. (E. Clanwilliam.)	Templemore, L.
Liverpool, E.		Teynham, L.
Lucan, E. [Teller.]	Daryngton, L.	Windlesham, L.

§ Resolved in the affirmative and Amendment agreed to accordingly.

§ LORD BALFOUR OF BURLEIGH moved to insert at the end of paragraph 6: If any person interested in any land supported by coal or a mine of coal shall suffer injury or damage through the withdrawal of such support after the vesting date (otherwise than in pursuance of a right vested in the Commission under paragraph 5 or 6 of this Schedule and in accordance with any term or condition attached to such right under that paragraph) he shall have a right of action against the Commission in respect of such injury or damage.

§ The noble Lord said: I am indeed on very perilous ground. This is a legal question, and I feel that it may appear presumptuous to attempt to argue these legal questions which have been debated and on which there is a difference of opinion between the eminent legal authorities in your Lordships' House. The object of this Amendment is, however, to make quite clear that the owner who suffers damage by the wrongful withdrawal of support can bring an action against the Commission, who are the owners of the coal. That seems to me to be the right way to do it. The last Amendment put the onus, as it seems to me, on the lessee. This Amendment puts the onus on the Coal Commission, who are the owners of the coal. I should like to quote in support of this Amendment a paragraph from the Royal Commission on Mining Subsidence which reported in June, 1927. That was a Royal Commission under the Chairmanship of Lord Blanesburgh, a very weighty Commission, and it had reference to this very case of damage being done by subsidence, and cases where the owners of property destroyed, and particularly small people, were unable to get redress.

§ The Report said that in many cases the principal consideration for the miner 708 is that his house must be near his work, and the Report went on to say: We are satisfied that so far as the owners of these small houses are concerned there are existent many cases of genuine hardship, and it is this circumstance which has seemed to most of us alone to justify the recommendation which with reference to existing houses of this type in private ownership we embody later in this Report. They went on to make the recommendation that there should be a right to compensation for damage caused by the withdrawing of support through mineral working in cases where under the existing law that could not be established. That recommendation has never been put into effect, because, I think, of opposition from the lessees, upon whom that liability would have fallen. This moment, when this tremendous change in the law is being made and the property is being transferred to the Coal Commission, seems to me to be an appropriate moment to make, as Lord Amulree said, a corresponding change in the law which would be appropriate.

§ A great deal of hardship has been caused by inability to get this compensation. It was admitted by the Commission, who now have an opportunity of correcting it. There is just this point, that the Coal Commission are going to become the owners of the property, and in cases where the lessees do not provide in a proper way, if no alteration is made the Coal Commission will be drawing profits from a situation which is held to be unsatisfactory. I think this Amendment ought certainly to secure the support of His Majesty's Opposition, and I gather from Lord Strabolgi that he would favour the protection of the small man. It may very well be that the Lord Chancellor will tell me that this is a drastic change in the law, but I do not think it is unfair, as the Coal Commission are going to make this very large profit on the deal, that 709 they should take the responsibility for cases of damage, even where a direct liability cannot be established against the lessees. If liability can be established against the lessees, then the Coal Commission will have redress. If it cannot be established, it seems to me they will have ample funds out of which to compensate all these people, in many cases poor people, who have suffered damage.

§ Perhaps one ought to have put down an Amendment which would have been discussed at that interesting moment last night when we tried to decide what was to happen to the surplus money. We had a Division on an Amendment by Lord Samuel, and that, I think, would have been the moment to suggest that there should be established a fund out of which compensation could be provided for such cases as this. Meanwhile, without attempting to argue the legal technicalities, of which I am not capable, I have moved the Amendment, the object of which is to provide that where support is wrongfully withdrawn, the Commission shall be responsible, and I leave it to the legal experts to say why that is impossible, if indeed it is impossible.

§ Amendment moved— Page 55, line 3, at end insert the said words.—(Lord Balfour of Burleigh.)

§ THE LORD CHANCELLOR
The noble Lord who has moved the Amendment has moved it in a very plausible manner; but is it right to do this? An Amendment has already been passed providing that the Commission are to require the working colliery company to give adequate security for the payment of compensation. Accordingly the person who is going to be injured by the withdrawal of support has got the security which the Commission have required for the payment of the compensation. I must admit that I was caught out in a slight mistake when I addressed the Committee a short time ago, when I scoffed at the notion of there being people who could not pay. I agree I was wrong, and Lord Strabolgi was quite right. But you have now provided for the giving of security, and why should there be something else as well? Why should there be not only security but the right of action against the Commission? After all, it may not be the fault of the Commission at all. All the leases that are in existence at the present time have been granted before the vesting 710 date, and on the average they will continue for another twenty years or so. Many of these people will be acting under rights under which they have to withdraw support after the vesting date, and not necessarily rights to withdraw support under the provisions in paragraph 6 of the Schedule.
This, as drawn, may lead to support being taken away by people in the ordinary course working their leases without any reference to the Coal Commission at all. Yet you are going to impose on the Commission an obligation to pay the injury or damage, presumably on the footing that the adequate security that has been given is not sufficient and that the man or the company which has really done the damage is not able to pay. But I ask your Lordships to come to the conclusion that this really, in the circumstances, is not a fair thing to impose upon the Commission. There is nothing impossible as a matter of law in this, but it is not an equitable thing which you are trying to impose upon the Commission, and I suggest that it should not be agreed to.

LORD STRABOLGI
Is not it a fact that the Amendment we have just passed and this Amendment of Lord Balfour's dovetail in together?

§ VISCOUNT HORNE OF SLAMANNAN
I suggest that this Amendment is a more desirable one than that for which we have just voted. As I indicated in the speech I previously made, I should much prefer the Commission to be the responsible body. I realise at once, and appreciate very much what the Lord Chancellor has just said, that leases have been granted before the date at which vesting has taken place, but I assume that in all these cases either power has been given to let down the surface in the working of the coal or stipulations have been made by which compensation will have to be paid if the surface is let down. Accordingly, if the lessee who at present enjoys a lease which must be taken over by the Coal Commission, lets down the surface under a lease in which he is entitled to let down the surface, then no compensation is payable and the Coal Commission will not be liable. On the other hand, if he lets down the surface under a lease where a stipulation had been made as to compensation, then the lessee will have to pay 711 and again the Coal Commission will not be damnified.

§ THE LORD CHANCELLOR
That is not what the Amendment says. The noble Viscount is perfectly right in his analysis that there are all these leases, many of which empower the lessee to let down the surface on the promise of paying compensation. Supposing one of these lessees lets down the surface, and knows he has to pay compensation, this Amendment still applies as drawn. The person who has suffered injury or damage is going to have a right of action against the Commission in respect of the injury or damage he has suffered, although that injury or damage was suffered by something which the Commission could not control in any way and had nothing to do with, and although the terms of the lease were that the surface might be let down on the lessee paying compensation. This Amendment as drawn will still hit the Commission.

§ VISCOUNT HORNE OF SLAMANNAN
I agree that in that respect the Lord Chancellor is entirely justified, and I should not be prepared to vote for the Amendment as it stands. What I am anxious to get at is this principle. The wording of the Amendment and the limitations which may be inserted are a different matter. What I would like to put before the Committee is this, and what I am anxious the Government should safeguard, is the principle by which, when damage takes place after the Commission are in operation—because all affairs beforehand would be regulated by their own terms—the Commission should be the body responsible for it. They can always safeguard themselves by the stipulations they make in their own leases. As to past leases, they will be regulated by their own terms. That is the principle I should like to see put into the Bill in whatever phraseology it may be couched. So far as this Amendment is concerned, I entirely agree with the Lord Chancellor that it will provide double damage for people in whose case leases were already in existence which provided for damage for letting down the surface. That would be entirely wrong, but do let us work at this principle, and put it in definite shape in this Bill, and we can surely do that by the Report stage.
712 May I just be forgiven for one moment in saying that I did not read the 1923 Act so negligently as the Lord Chancellor suggested? The Lord Chancellor says that people who have experienced damage through their mansion or cottage being let down have got to go back to Section 8 of the Mines (Working Facilities and Support) Act, 1923. I have reinforced my recollection by going to the Library, where I obtained a copy of the Statute, and I found this. What right have I when I appear before the Railway and Canal Commission to establish a claim that restriction should be imposed upon the working of the coal? I find that, in order to safeguard my cottage, I have to show that it is in the national interest that my cottage should be sustained. That is the amount of the right that remains to one under the 1923 Act. I do not suggest that I am ever going to establish, no matter how much I love my cottage, that it is in the national interest that it should remain. I say again that this is the first time that, without consent of anybody, or the authority of any other body, a Coal Commission are to be appointed who are entitled to withdraw support from the surface. I am sorry to say this with so much vehemence, but I was rather disappointed to seem to be caught out in an error in what I put before the Committee. At any rate, so far as this matter is concerned, I suggest to the Government that the great majority of the Committee are of the opinion that some safeguard should be made to ensure that people whose interests have been injured should receive the compensation to which they are entitled, and the only way that can be safeguarded is by putting the duty upon the Coal Commission.

LORD BALFOUR of BURLEIGH
May I say, in view of what has fallen from the noble and learned Lord and my noble friend behind me, of course I did not intend to provide for double compensation. It is a legal matter and I naturally cannot understand the legal technicalities, but the position is that the Commission may withdraw support and we want to give redress. The end I want to achieve is that everybody should have recourse against the Coal Commission, preserving to the Coal Commission whatever recourse they may have against the lessee. That seems to me to be what is 713 wanted. There is no intention to have double recourse and if the Lord Chancellor would say that could be carried out I should be only too happy to withdraw my Amendment.

§ THE LORD CHANCELLOR
I do not quite understand what it is that is now wanted. I understand from my noble friend Viscount Horne that he agrees that this Amendment as it stands does not carry out that which is fair. There is of course a very great difference in the position of the Commission as regards leases they will grant, in view of the position of the Commission as people who come on the scene when leases are in existence, practically all of which permit of some terms or of some conditions for the letting down of the surface. As regards those, as I pointed out, the Commission cannot help it. Already the lessee is liable in respect of those matters where there is a condition to that effect. I think perhaps one might say that if that is what is required—namely, the liability of the Commission as regards leases granted by them and work done under those leases—the Government might fairly consider it on the Report stage. But the Amendment as it stands is one which, in the view of those with me and, as I understand it, in the view of the noble Viscount, Lord Horne, the Government cannot accept as it stands.

LORD BALFOUR OF BURLEIGH
In view of what has fallen from the noble and learned Lord, I think the right course is to agree to withdraw. The noble and learned Lord has been kind. He has promised us something. I must admit I had thought, in view of the fact that the Coal Commission are going to become possessed of the whole of the coal, that there was an opportunity of putting into effect the recommendations of the Blanes-burgh Commission, which would rectify some of the injustice to small people. But the hour is early and I think it better not to press the Amendment now. I thank the noble and learned Lord for his promise and I beg leave to withdraw.

§ Amendment, by leave, withdrawn.

§ Second Schedule, as amended, agreed to.