§ 6.5 p.m.
§ Moved, That the Bill be now read 3a. —(Lord Sandford)
§ On Question, Bill read 3a, with the Amendments.
§ Clause 2 [Interests qualifying for compensation]:
THE MINISTER OF STATE, SCOTTISH OFFICE (LORD POLWARTH) moved Amendment No. 1:
Page 3, line 42, after ("of") insert ("(a)")
§ The noble Lord said: My Lords, this Amendment and the next one standing in my name, to which I should like to speak now, with your Lordships' agreement, are the first of the Amendments which were originally tabled for Report stage but which have been deferred until now at the request of the noble Lord, Lord Hughes. I can appreciate the noble Lord's dismay on first perceiving the bulk of these Amendments, but as my noble friend Lord Sandford explained at Report, there is no need to be intimidated by this. Most of them simply adapt to the law of Scotland provisions already in the Bill or apply those provisions to the peculiarly Scottish kinds of agricultural tenants. It is a complicated subject and also one on which there are a great many small differences between Scottish and English law.
§ I should like to explain these special kinds of tenure, for the benefit of those noble Lords who do not share the familiarity with the subject of the noble Lord, Lord Hughes. Crofters, cottars, landholders and statutory small tenants are peculiarly Scottish classes of tenant. Crofters and cottars are found only in the seven counties of Argyll, Caithness, Inverness, Orkney, Ross-shire, Sutherland and Shetland. Landholders and statutory small tenants are confined to the rest of Scotland. A crofter is the tenant of a croft, which is a small agricultural subject, who enjoys security of tenure virtually in perpetuity as well as the right to assign or bequeath his holding. He is responsible for providing his own house and buildings and is entitled to compensation for them on renunciation or removal from the croft. The only limitation on his security is that the landlord 319 has the right to apply to the Scottish Land Court for authority to resume the whole or part of the croft for a reasonable purpose having regard to the good of the croft or the estate or to the public interest.
§ A cottar is the occupier of a dwelling-house with or without agricultural land attached to it, who may or may not pay rent, but is in occupation with the consent of the landlord. He or his predecessors will normally have provided the dwelling-house, and he has similar compensation rights to a crofter. A landholder is the tenant of a small agricultural unit outside the crofting counties who in most respects is comparable with a crofter. He enjoys comparable security of tenure and is responsible for providing his own house and fixed equipment, for which he has similar compensation rights to a crofter. Statutory small tenants are a diminishing class, comparable to landholders but distinguished from them by the fact that they have not provided the greater part of the improvements on their holding.
§ In addition to the Scottish Amendments which have been carried over from Report stage, we have found it necessary to introduce some small drafting improvements, but these are quite straightforward and I shall explain them as we come to them. Turning first to Amendments Nos. 1 and 2, the purpose of them is to bring within the scope of Part I of the Bill the interests of crofters and similar classes of tenant who are peculiar to Scotland. The Amendments recognise the fact that the crofter is normally required to provide his own equipment on his holding for which he receives compensation on outgoing. It is possible that this compensation or the sum which he receives for the holding on assignation may be reduced by the injurious effect of the use of public works. It seems reasonable, therefore, to regard the interest of the crofter in this context as more analogous to that of an owner-occupier than of a year-to-year tenant, who does not normally have to provide his own equipment. We are therefore extending the definition of "owner's interest" in this clause to provide for this. The position of landholders, statutory small tenants and cottars is broadly similar to that of a crofter, and they 320 are therefore also covered by the Amendments. My Lords, I beg to move.
§ LORD HUGHES
My Lords, as the noble Lord, Lord Polwarth, said, I feel obliged at this late stage of the Bill to object to so many Scottish Amendments coming up at such short notice on so complicated a subject, much of it very highly legal and technical in its aspect. I have used the time that has elapsed between Report stage and to-day to make inquiries in Scotland as to the effects of these Amendments and about the way in which they have been received by the main agricultural interests. The noble Lord will be glad when I say that nothing that I have been told—with one exception, which is the subject of an Amendment that I have tabled—has given me any cause to believe that I should oppose any of these Amendments that have been re-tabled by the Government to-day.
However, the noble Earl, Lord Kinnoull, spoke to me early this afternoon about this Amendment, and said that he feared he would not be present when we reached it. If he had been here, he would have asked (I may be wrong, but I think this arose from discussions he has had with the Law Society) why in this widening definition a liferenter has been excluded. I do not know whether in fact a person who holds the liferent of a property which is affected under Clause 1 would benefit if liferenters were not specifically mentioned. Perhaps the noble Lord can say what is the position of a person who holds a liferent of a property in Scotland and who is affected under provisions where other people are being given protection.
§ LORD POLWARTH
My Lords, the noble Earl, Lord Kinnoull, did indeed inquire of me earlier about this point. I have made inquiries and, as I understand it, the reason for the exclusion of a life-renter as such is that a liferenter does not have a realisable interest which could be depreciated as a result of the use of public works. On the other hand, a crofter, or one of the other specified categories here, is entitled on renouncing his tenancy to receive compensation for his buildings, and this compensation is what could be depreciated by the use of public works. As I understand it, where there is a liferent it is the trustees who will be entitled to receive compensation, 321 not the liferenter direct; and presumably the liferenter would benefit through the fact of the assets of the trust being added to by this compensation. I understand that that is the position.
§ LORD HUGHES
My Lords, I thought that that might be the position, but can the noble Lord go a little further? He said, "as I understand it", but that is not the same as saying that the trustees will receive compensation and the liferenter will therefore benefit indirectly. Perhaps, even if it may be a little out of order, when the noble Lord can get specific information he will be able to say that the trustees will be in exactly the same position as any other owner. It is just possible that I have spoken sufficiently long out of order to enable the answer to be given.
§ LORD POLWARTH
My Lords. I am sorry to say that that is not the case. But I will certainly endeavour to obtain confirmation in time to give the noble Lord a reply at a suitable moment later on.
§ Amendment moved—
Page 3, line 45, at end insert ("and
(b) a crofter, a landholder, a statutory small tenant and a cottar in the land.").—(Lord Polwarth.)
§ LORD HUGHES
My Lords, it did not seem to me that anybody said anything. I heard no murmur of "Content" at all, and I certainly did not say "Not-Content". I think noble Lords ought to say something.
§ Clause 4 [Assessment of compensation: general provisions]:
LORD SANDFORD moved Amendment No. 3:
Page 5, line 43, after ("or") insert ("to a contract made after the relevant date").
§ The noble Lord said: My Lords, this is a drafting Amendment. As subsection (4)(c) stands, in cases of contracts for grant of a tenancy entered into before the relevant date there could be duplication of compensation because both parties to the contract would be entitled to 322 claim. A correction is required to secure that both could not, and the Amendment secures that the landlord's interest is valued subject to the contract for the tenancy. My Lords, I beg to move.
§ Clause 8 [Other restrictions on compensation]:
LORD SANDFORD moved Amendment No. 4:
Page 8, line 38, after ("by") insert ("the use of").
§ The noble Lord said: my Lords, this is another drafting Amendment. It ensures that the depreciation referred to in subsection (1) is depreciation caused by the use of the works (which is what Part I is all about) and not by other factors, such as the construction of the works. My Lords, I beg to move.
§ Clause 19 [Interpretation of Part I]:
LORD SANDFORD moved Amendment No. 5:
Page 18, line 16, after ("always") insert ("since 17th October 1969").
§ The noble Lord said: My Lords, this Amendment is the last to Part I, and it is a technical one. Part I applies only to highways first opened to public traffic on or after October 17, 1969, and the word "always" thus needs to be qualified to bring it within the terms of reference of Part I. Without the date the provision could be held to deal with situations in the indefinite past, which is not what it was intended to do. My Lords, I beg to move.
§ Clause 20 [Sound-proofing of buildings affected by public works]:
LORD SANDFORD moved Amendment No. 6:
Page 19, line 5, at end insert ("and the area in which a building must be situated if a duty or power is to arise in respect of it").
§ The noble Lord said: My Lords, regulations under Clause 20 may make provisions for the level of noise giving rise to a duty or power, and may specify the classes of buildings in respect of which a duty or power is to arise. By subsection (3) they may also provide for the 323 relevant level of noise in a particular case to be determined by reference to certain documents. It is envisaged that the regulations will require responsible authorities to determine the relevant level of noise in a particular case, either by prediction in accordance with a formula evolved and contained in a published document, or by measurement in individual or groups of cases, and, in the case of prediction, to publish a map in advance of the construction of the works showing the area in which the relevant level of noise is predicted to be reached. The intention is that buildings situated within that area shall be eligible for sound insulation work on the application of some person. The powers need to be wide enough to enable responsible authorities to publish such a map or take other steps which would result under the regulations in some buildings being eligible and others not. As drafted, subsection (2) does not quite ensure this; hence this technical Amendment. My Lords, I beg to move.
§ LORD SANDFORD
My Lords, this Amendment, No. 7, is consequential on Amendment No. 6. I beg to move.
Page 19, line 24, after ("noise") insert ("or the relevant area").—(Lord Sandford.)
§ 6.20 p.m.
§ LORD GARNSWORTHY moved Amendment No. 8:
Page 19, line 42, at end insert—
("(5A) Regulations under this section may authorise the council of a London borough to contribute towards expenses incurred under the regulations by a responsible authority in respect of the insulation of buildings against noise caused or expected to be caused by the use of any highway in that borough in relation to which an order has been made under section 6 of the Road Traffic Regulation Act 1967 (traffic regulation orders in Greater London).").
The noble Lord said: My Lords, Clause 20 enables the Secretary of State to
make regulations imposing a duty or conferring a power on responsible authorities to insulate buildings against noise caused or expected to be caused by the construction or use of public works or to make grants in respect of the cost of such insulation".
The term "responsible authority" is defined in subsection (11) of the clause
as including, where it relates to a highway,
any authority having power to make an order in respect of that highway under section 1 or 6 of the Road Traffic Regulation Act 1967…".
Section 1 deals with orders outside Greater London, whereas Section 6 covers orders in the Greater London Area. In Greater London the authority having power to make an order as respects roads other than trunk roads is the Greater London Council. In the case of trunk roads it is the Minister or, with his consent, again the G.L.C. Subsection (5) of this clause enables regulations to be made to
authorise or require local authorities to act as agents for responsible authorities in dealing with claims and in discharging or exercising the duties or powers of responsible authorities under the regulations, and may provide for the making by responsible authorities of payments to local authorities in respect of anything done by them as such agents".
§ As I have stated, the G.L.C., and not the London boroughs, is the authority which has the power to make such regulations in Greater London on highways other than trunk roads, and cases could occur where the G.L.C. could make an order at the request of a London borough, and that borough, being willing to make a grant to the G.L.C. towards the cost of any subsequent sound insulation scheme, may find itself unable to do so because of the restrictions of subsection (5) as it now stands. I am advised that subsection (5) is restricted to anything done by local authorities as agents for responsible authorities, and there is no circumstance in which the G.L.C. would be acting as agent for a London borough in this matter. The purpose of the Amendment is to enable a London borough to contribute to the expenses where the G.L.C. is acting as a result of a request from a London borough and that borough is willing to contribute towards the costs. I am assured the Amendment is acceptable to the London Boroughs Association, and I hope it is in a form which the Minister can accept. I beg to move.
§ LORD SANDFORD
My Lords, the House will be grateful to the noble Lord for moving and explaining this Amendment, and I am glad to confirm that it is acceptable to Her Majesty's Government.
LORD SANDFORD moved Amendment No. 9:
Page 19, line 43, after ("section") insert ("may contain such supplementary provisions as appear to the Secretary of State to be necessary or expedient and")
§ The noble Lord said: This is a technical Amendment. It provides for the regulations to include such incidental, consequential and supplemental provisions as may be necessary for the purposes of the sound insulation scheme, since it is impossible to visualise and hence specify in this clause everything which it may be desirable to include when the regulations come to be drafted and presented to Parliament. I beg to move.
§ Clause 21 [Sound-proofing of buildings affected by aerodromes]:
LORD SANDFORD moved Amendment No. 10:
Page 20, line 29, at end insert ("but a scheme under that section need apply only to such classes of buildings as the Secretary of State thinks fit").
§ The noble Lord said: My Lords, this Amendment has a little more substance than the ones I have been moving immediately prior to this. Clause 21 extends the meaning of "dwelling" in Section 15 of the Airports Authority Act 1965 to enable sound insulation to be installed in "buildings". This was done so as to match the new provision for sound-insulating buildings in respect of other public works in Clause 20. The existing powers in Section 15, however, are at present not adequate to enable regulations introduced under it to specify the classes of building in respect of which insulation might be installed, and the parallel with Clause 20(2)(b) is thus incomplete. This Amendment, therefore, simply provides powers in relation to aerodrome schemes which Clause 20 already provides for other schemes. I beg to move.
§ Clause 22 [Acquisition of land in connection with highways]:
LORD POLWARTH moved Amendment No. 11:
Page 23, line 16, leave out ("and other land").
§ The noble Lord said: My Lords, Amendment No. 11 simply corrects a mistake in drafting which results in more of subsection (4) being left out of the Scottish application than was intended. I beg to move.
§ LORD HUGHES
My Lords, it seems to me that this is perfectly reasonable and, looking at this, one wonders why the words that are being altered were inserted in the first place—open space or fuel or field garden allotment and other land".If it had read,open space and other landin the first instance, would that not have included a fuel or field garden allotment, or can they be regarded in some ways as not being part of any other land? However, it is not the Scottish application and I will not press it.
§ LORD POLWARTH
My Lords, I hope the noble Lord will excuse me from dealing with that English matter.
§ Clause 26 [Acquisition of land in connection with public works]:
LORD POLWARTH moved Amendment No. 12:
Page 26, line 32, after ("highway") insert ("or in Scotland a road").
§ The noble Lord said: My Lords, with your Lordships' permission, in moving Amendment No. 12 I will speak at the same time to the two subsequent Amendments. These are necessary because "highway" has a different meaning in Scotland from that which it has in England and Wales. In Scotland a highway is a road maintained by a highway authority. There are also roads built and maintained by other public authorities, such as the Forestry Commission and the North of Scotland Hydro-Electric Board, to which the public have access. In England these would be highways, but in Scotland they are just "roads" and are not therefore excluded from Clauses 26 and 27 as they are worded at present. It is, however, desirable to exclude such minor roads which are not the responsibility of a highway authority in Scotland as well as in England and Wales, and the effect of these Amendments is to achieve this exclusion.327
§ If your Lordships would allow me, while dealing with this question of highways and roads might I try to reassure the noble Lord, Lord Hughes, on the point which he raised at an earlier stage in relation to definitions, arising, I think, under two previous clauses, Clauses 18 and 19—the definition of a "highway authority" in Scotland. While in Clauses 1 to 18 of the Bill inclusive the expression "the appropriate highway authority" is used, the definition of that expression in Clause 19 is given in terms of the words "highway authority", and the words "highway authority" also appear in subsection (3) of Clause 19. So the definition of a "highway authority" is still necessary for the purposes of Clause 19 itself. Admittedly it is a definition for Scotland only, and it has not been considered necessary by the English draftsman to insert a parallel one for England and Wales. I think that this can be accounted for by the differences between the ways in which the meaning of "highway authority" is given in the Highways Act 1959, applicable only to England and Wales, and in the Roads (Scotland) Act 1970, which applies to Scotland. I have therefore made these inquiries and, as a result, should like to assure the noble Lord that the definition of a "highway authority" in Clause 19 does serve a purpose. I beg to move.
§ LORD HUGHES
My Lords, I am grateful to the noble Lord, Lord Polwarth, for explaining why there should be these two definitions in the previous clause. I admit that I had given up hope of hearing more about it. It is a long time since I asked the question. I thought that all the typewriters had disappeared from St. Andrew's House or that the Minister had lost his pen. I accept what he says as a reason why this should be done. I still do not feel that it is necessary, but if the draftsmen feel that it is so, then I am not disposed to argue about it.
§ Clause 27 [Execution of works etc. in connection with public works]:
§ Clause 28 [Power to pay expenses of persons moving temporarily during construction works etc.]:
§ Amendment moved—
Page 28, line 4, at end insert—
("(5) In the application of this section to Scotland 'highway authority' has the same meaning as in the Roads (Scotland) Act 1970, and in subsection (1) for any reference to a highway there shall be substituted a reference to a road.").—(Lord Polwarth.)
§ Clause 29 [Right to home loss payment where person displaced from dwelling]:
§ 6.32 p.m.
LORD GARNSWORTHY moved Amendment No. 15:
Page 28, line 27, leave out ("five") and insert ("four").
§ The noble Lord said: My Lords, I am acutely aware that this matter has been debated twice already in this House and twice in another place. I am also conscious of the fact that it is not to the liking of your Lordships generally that an Amendment at Third Reading should be moved in similar terms to one moved at either the Report or Committee stages. But I have been encouraged to table this Amendment, which is much more modest than has been considered previously, since it has been obvious at almost every stage of the passage of the Bill through this House and through another place that there is considerable disquiet and concern that the Government appear not to have fully appreciated the position of those people who as a result of public policy find that they have lost their homes.
§ Clause 29 provides for compensation to persons displaced as a result of compulsory acquisition. As the noble Lord, Lord Sandford, put it at Report stage, it is compensation to cover the grief and distress of being uprooted against one's will from a place that has become one's home. If I may say so, that has been the concern and disquiet throughout. I appreciate that the Government have 329 recognised the rightfulness of the claim for such solatium as is covered by the clause. I equally appreciate their desire to legislate to meet it. I have no wish to repeat all the arguments that were advanced on the Committee and Report stages, and certainly not to repeat all the points that were raised in debate in another place, but I think that there ought to be made clear the very deep concern which has been expressed at every stage of the Bill, at Second Reading, Committee stage and Report stage. And I think that concern will be evidenced again this evening.
§ The Government may say they have been flexible. Indeed, the noble Lord, Lord Sandford, said just that at the Report stage. He confirmed what I had already acknowledged when we were considering the matter: that there had been a reduction from the original figure of seven years to one of five years before the Bill reached this House. What was the reason for putting "seven years" in the original text of the Bill I do not know. Neither do I think that a case has been stated to support the choice of the term of seven years. What I do know is that there were, from the very beginning, strong feelings that there should be a "nil" qualifying period. In this House an attempt was made to persuade the Government to accept a "nil" period; an effort was made to amend the period to two years and again to three years. I think that it is crystal clear, reading all the discussions that have taken place, that five years is too long a period to satisfy those of your Lordships and those Members of another place who have followed the debates and listened to the arguments. On Report here an Amendment to reduce the period to one of three years was lost by only two votes.
§ The Amendment that I now move is a very much more modest one: four years instead of the original seven years, four years instead of the five years that is now mentioned in the Bill. I would hope that the Government will seize the opportunity to show that they have some regard for the concern which undoubtedly has been shown in this House and which was evidenced by the closeness of the vote at Report stage. We are concerned here with a solatium for the loss of a home. How that can be quantified I 330 do not pretend to understand. How anyone can say that it takes a minimum of five years before attachment to a home merits compensation, I find impossible to comprehend. People generally do not buy a house because of the prospect of being turned out; they do not buy a house because they are going to enjoy a period of insecurity. They buy a house because they need a home.
§ The noble Lord, Lord Sandford, said at Report stage that attachment to a home grows as the period lengthens and that it is certainly stronger after five years than it is after three years. I found that at the time (and on reflection I find it still) a generalisation that would be difficult to prove. Some people at the moment of occupation would feel more strongly attached to their home than some people who had lived in a house for a decade; for some it will be their first home after years of waiting and attachment will be deep and profound. I cannot accept that there will be a large number of people who will buy property and move into it knowing that it is going to be taken from them and being aware of the levels of compensation available to them.
§ There are no fortunes to be made in this—only grief and distress that those involved have no security of ownership. We are not talking about large sums of money. The figures for compensation range from £150 to £1,500. My Amendment does not involve a total figure much in excess of £2 million at the outside. I understood the noble Lord, Lord Sandford, at Report stage to suggest a figure of something like £5 million a year. At Report stage he talked about a total cost of compensation to meet this grief and distress of about £25 million. I do not know whether that £25 million was a firm figure. I very much suspect that the cost of the acceptance of this Amendment would be somewhere between £2million and £2½ million a year at the very outset. To qualify for consideration a claimant for compensation will need to have been in occupation of the dwelling, or a substantial part of it, as his only or main residence; in other words, he must have been in occupation by virtue of an interest or a right. I hope that the Government will respond to the very moderate nature of the Amendment. While not meeting the position as fully 331 as one might wish, if the Government did accept the Amendment it would help many who are surely deserving of consideration. I suggest that it would indicate that the Government are sensitive to the very strong feeling which I believe still exists with regard to this matter.
§ 6.40 p.m.
§ VISCOUNT DAVIDSON
My Lords, I should like to support the Amendment very strongly and very briefly—very strongly because that is how I feel about it, and very briefly because I feel that the case has already been argued fully and forcefully in Committee and at Report stage. I cannot believe that there is anyone who does not welcome this new principle of home loss payments. All we are trying to do by this Amendment is to ensure that the principle is extended to include another group of people who, we believe, will be affected no less than those already covered by the provisions in the Bill. It is no doubt a matter of opinion as to how long a person has to occupy a house before he or she experiences a sense of loss or distress when that house is forcibly taken away. But it is the fact, my Lords, that in the debates on the Amendments moved in Committee and on Report every speaker, with the exception of my noble friend the Minister, expressed the view that five years was too long a period before one could qualify for this payment. I must confess, my Lords, that throughout the passage of this important Bill I have been rather disappointed at the apparent unwillingness of the Government to yield at all to many of the reasonable Amendments which have been put down, and the reasoned arguments which have been put forward. In my view this one is quite the most reasonable and I urge my noble friend the Minister to concede that it is so, and to show a degree of flexibility at this stage. If he finds that impossible, and if the noble Lord, Lord Garnsworthy, decides to press this Amendment, I urge your Lordships to give it your full support.
§ LORD DAVIES OF LEEK
My Lords, I too, will be brief, but I think there is one point worthy of notice. Because of the movement of work people from one part of Britain to another the period of occupancy should be lower because the fluidity of labour is an important matter 332 in a modern technological world. Long periods of dwelling in the same area, especially in modern development, are not expected as they were in years gone by. Without developing the argument, because I think it is self-evident, I believe my noble friend is right to attempt to reduce the period of years of occupancy, and I hope that the Amendment will be regarded as worthy of support.
§ LORD SANDFORD
My Lords, I entirely agree with the noble Lord, Lord Garnsworthy, that we can deal briefly with this matter because it has been debated four times already and most of the main issues are well understood. I would rebut the contention of my noble friend Lord Davidson that the Government have not been flexible on this point, or in respect of the Bill in general. I have today already accepted one Amendment from the noble Lord, Lord Garnsworthy. I have accepted earlier Amendments, and it may be that I shall accept one more But on this topic the Government have already responded to the views expressed in another place and have reduced the period to five years. I would, however, summarise the four points on which I must advise the House to support the Government.
First, my Lords, as everyone knows, we are here introducing a new payment not designed to represent the value of what is being taken, but to console those forced to leave homes for which over the years they have formed a strong attachment. The people we really need to have in mind are not those who have been living in their houses for two, three, four or five years, but those who have lived in their houses for most of their lives. It is these people for whom this payment is chiefly provided. But we have to provide a cut-off point. I think it fundamental to the concept that there has to be a period of occupation long enough to form an attachment, and not a "nil" period for which the noble Lord, Lord Garnsworthy, has sometimes argued.
Five years has been selected for three reasons. The first, which is the least important, is to establish a cut-off point; to ensure that those most likely to suffer distress will benefit, while at the same time keeping within bounds the cost of a provision which, of all those in the Bill, is the one making the heaviest call on 333 the taxpayer. The noble Lord, Lord Garnsworthy, was perfectly right. This particular provision requires about £20 million a year from the taxpayers at large, and the effect of the acceptance of his Amendment would be to increase that sum by £2 million or £3 million. That is one reason for the cut-off, but it is not the main one.
The two more important reasons are these. First, a public work takes a long time to plan and to implement and there will be plenty of occupiers of five years' standing who would know at the very outset of their occupation that they were likely to be dispossessed; and to reduce the qualifying period even to four years would increase the number of such people and the number of unwarranted payments made at the expense of the taxpayers and ratepayers. No one can be precise about the number who would be in that position, but plainly there could be many, and I will give the House two reasons for being able to say that quite categorically.
Take, for instance, housing schemes, slum clearance schemes, the ones most likely to generate claims to which this section applies, dealing with unfit houses. These programmes nearly always cover a period of five years. The first official step is that the medical officer of health inspects the area and makes recommendations about the extent of the clearance area to be proposed. This may well be common knowledge locally, and once the clearance area is declared a prospective purchaser would be alerted. After the declaration of the clearance area a further period of one or two years or more may elapse before the compulsory purchase order is confirmed, and another couple of years before households are moved out of the area. In some cases demolition may be deferred for a still longer period.
Another public work giving rise to claims for home loss is, of course, the construction of new roads. The relevant period is that period which elapses after the publication of the line order and before construction actually begins. The periods that have elapsed in respect of one or two well-known roads are these: the A.66 Kendal link, 6 years; the Reigate-Godstone section of the M.25, 5 years; the Lightwater-Sunbury section of 334 the M.3, 5 years; the Lofthouse-Ferry-bridge section of the M.62, 6 years 4 months; the Fiveways corner intersection of the M.1 with the North Circular, 6 years, 3 months; the M.40 Gerrards Cross by-pass, now under construction, 7 years, 10 months. There was some talk about possible speculation in this field. I did not make very much of that, and I do not make much of it now. But I think that from what I have said noble Lords will see that in both these areas there is more often than not the likelihood that the number of people moving into the properties will know when they move in that they are going to be dispossessed within those periods.
The final reason I give for the cut-off of five years having been selected is the most important, not because it represents any sort of meanness by the Government, but from a desire to concentrate the available help on the people who most deserve it. If the qualifying period were reduced the number of people qualifying each year would be permanently increased. This would mean not only higher annual expenditure, which as I have said is a factor, but not the most important one, but also less room for manoeuvre if and when any Government give consideration to raising the minimum payment of £150 under Clause 30(1), which can be done by the order of the Secretary of State. It is worth realising that most of those who will benefit from this minimum payment of £150, or some larger sum if a larger sum is introduced, live in slum clearance areas where five out of every six houses required for public work are situated. If the period were reduced further these people could suffer in this way, whereas those who bought a house four years before it was due to be acquired for a scheme, and did so in the full knowledge of the prospects, would be given an undeserved payment which could be as high as £1,500.
As I said at the beginning, we have to remember that we are not talking here about compensation for the value of what is taken or of losses caused by compulsory displacement. Those are covered of course by the existing compensation code, as amended and as enlarged by the other provisions in this Bill. What we are talking about is a special, new, additional 335 payment over and above these for people who are subjected to great distress when they are forced to move away from homes where they may have brought up their families or lived for the best part of their lives—much longer periods than those we are talking about. As I say, the Government have already reduced the qualifying period in response to arguments in favour of those who have occupied their homes for a lesser period, but we remain persuaded that it is not right to accept any further dilution of our concern for occupiers of very long standing, or to open the provision further to the possibility of making payments at the taxpayers' expense to those who knew from the outset that they were not taking up their permanent home.
I hope that with that even fuller explanation than I have given before the noble Lord will not press his Amendment, as he will see that we are trying to be fair as well as generous; but if
§ he does, I must ask the House to resist it.
§ LORD GARNSWORTHY
My Lords, I thank the noble Lord, Lord Sandford, for his reply, but I find what he has said quite unconvincing. I think that further talk now will not carry the matter any further. Those of your Lordships who were present in the Chamber will have heard the debate. I should have liked to deal point by point with what the noble Lord has said, because there is an answer to every point he has made. The Government have not been flexible in their expression of opinion in this House on this most important matter, and I think your Lordships should be given an opportunity to vote on it. I think a Division is fully justified before this Bill proceeds further.
§ 6.54 p.m.
§ On Question, Whether the said Amendment (No. 15) shall be agreed to?
§ Their Lordships divided: Contents, 56: Not-Contents, 62.337
|Addison, V.||Gainford, L.||Royle, L.|
|Archibald, L.||Garnsworthy, L. [Teller.]||Sainsbury, L.|
|Arran, E.||George-Brown, L.||Serota, B.|
|Auckland, L.||Hale, L.||Shackleton, L.|
|Bacon, B.||Henderson, L.||Slater, L.|
|Bernstein, L.||Hoy, L.||Snow, L.|
|Beswick, L.||Hughes, L.||Soper, L.|
|Blyton, L.||Jacques, L.||Stanley of Alderley, L.|
|Brockway, L.||Kinnoull, E.||Stocks, B.|
|Brougham and Vaux, L.||Llewelyn-Davies of Hastoe, B.||Stow Hill, L.|
|Carnock, L.||Lloyd of Hampstead, L.||Strange, L.|
|Champion, L.||Maelor, L.||Teviot, L.|
|Cooper of Stockton Heath, L.||Milner of Leeds, L. [Teller.]||Wells-Pestell, L.|
|Cranbrook, E.||Monson, L.||White, B.|
|Davidson, V.||Newall, L.||Williamson, L.|
|Davies of Leek, L.||Nunburnholme, L.||Wise, L.|
|Dundonald, E.||Phillips, B.||Wynford, L.|
|Faringdon, L.||Rankeillour, L.||Wynne-Jones, L.|
|Fiske, L.||Rhodes, L.|
|Ailwyn, L.||de Clifford, L.||Masham of Ilton, B.|
|Allerton, L.||Denman, L. [Teller.]||Massereene and Ferrard, V.|
|Balerno, L.||Drumalbyn, L.||Milverton, L.|
|Belstead, L.||Eccles, V.||Monck, V.|
|Berkeley, B.||Emmet of Amberley, B.||Mowbray and Stourton, L. [Teller.]|
|Boothby, L.||Ferrers, E.|
|Brabazon of Tara, L.||Fraser of Lonsdale, L.||O'Neill of the Maine, L.|
|Brooke of Cumnor, L.||Gowrie, E.||Onslow, E.|
|Brooke of Ystradfellte, B.||Haig, E.||Orr-Ewing, L.|
|Carrington, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Penrhyn, L.|
|Coleridge, L.||Polwarth, L.|
|Colville of Culross, V.||Harvey of Tasburgh, L.||Ruthven of Freeland, Ly.|
|Conesford, L.||Jellicoe, E. (L. Privy Seal.)||St. Aldwyn, E.|
|Cork and Orrery, E.||Jessel, L.||Sandford, L.|
|Courtown, E.||Kemsley, V.||Somers, L.|
|Craigavon, V.||Lansdowne, M.||Strathclyde, L.|
|Crathorne, L.||Lauderdale, E.||Stratheden and Campbell, L.|
|Crawshaw, L.||Lothian, M.||Stuart of Findhorn, V.|
|Daventry, V.||Mar, E.||Tenby, V.|
|Terrington, L.||Vivian, L.||Waldegrave, E.|
|Tweedsmuir of Belhelvie, B.||Wakefield of Kendal, L.||Young, B.|
On Question, Amendment agreed to.
§ 7.3 p.m.
§ LORD SANDFORD moved Amendment No. 16:
Page 29, line 44, at end insert—
("( ) Where an interest in a dwelling is vested in trustees (other than a sole tenant for life within the meaning of the Settled Land Act 1925) and a person beneficially entitled (whether directly or derivatively) under the trusts is entitled or permitted by reason of his interest to occupy the dwelling, he shall be treated for the purposes of this section as occupying it by virtue of an interest in the dwelling.
In the application of this subsection to Scotland the words "(other than a sole tenant for life within the meaning of the Settled Land Act 1925 ") shall be omitted.")
§ The noble Lord said: My Lords, I beg to move Amendment No. 16. This is a technical drafting Amendment prompted by the Law Society. As Clause 29 stands, it could be open to doubt whether the interest of the entitled person is in the dwelling or in the process of a sale. For the avoidance of doubt, the Amendment provides that the interest is in the dwelling. Clause 29(4)(a) includes interest in the dwelling, subject to the trust for sale. There is no such doubt in the case of a sole tenant for life within the meaning of the Settled Land Act 1925, which applies only to England and Wales. Such a tenant does not have an interest in the dwelling. As that Act does not apply to Scotland the second paragraph of the Amendment is formally required.
§ Clause 32 [Supplementary provisions about home loss payments]:
LORD SANDFORD moved Amendment No. 17:
Page 32, leave out lines 24 to 27.
§ The noble Lord said: My Lords, I beg to move Amendment No. 17 and to speak to No. 18, because the first paves the way for the second. One of the qualifying conditions that had to remain in order to confer on a person the right to claim a home loss payment is that that person can perhaps specify an interest or right of dwelling in the home from which he is displaced. This condition 338 is necessary to ensure that only one home loss payment is made in respect of each home. In some cases, however, two or more persons could have a qualifying interest in the same home which they jointly occupy—for example, a husband and wife who jointly own their own home or are joint tenants of it. The provision is not exact enough as it stands to cover this current situation, and the redraft takes the form of removing the last four lines of subsection (4) and re-introducing them in an improved version in a separate subsection. I beg to move.
§ Amendment moved—
Page 32, line 33, at end insert—
("( ) Where there are two or more persons entitled to make a claim to a home loss payment in respect of the same dwelling (whether by virtue of joint occupation or of subsection (4) above) the payment to be made on each claim shall be equal to the whole amount of the home loss payment divided by the number of such persons.").—(Lord Sandford.)
§ 7.6 p.m.
LORD POLWARTH moved Amendment No. 19:
Page 33, line 5, leave out ("a") and insert ("(i)a").
§ The noble Lord said: My Lords, I beg to move Amendment No. 19 and, with your Lordships' permission, I should like to speak to the subsequent Amendment which is consequent upon it. These Amendments deal with the situation where someone who would have been entitled to a home loss payment dies before he can claim it. As Clause 32 stands at present, other people who have lived in the dwelling for five years up to the date of displacement can claim the payment to which the deceased person was entitled, but only if they were entitled to benefit under the will or under the law of intestate succession. It is possible, however, for the deceased person to have made a will leaving his entire estate to a distant relative or, for that matter, to a dogs' home. If this happened, the widow would be unable to claim a home loss payment. Nevertheless, as your Lordships know, they 339 have certain rights under Scots Law, into which I need not go, which ensure that even although they are not named in the will the widow or widower and the children of the deceased receive a portion of the estate. In these circumstances, I think your Lordships will agree that it is right that the widow or widower and children should be able to claim a home loss payment in the same way as if they had benefited under the will. I beg to move.
Page 33, line 8, at end insert ("and at the end there shall be added the following words 'or(ii) a right to jus relicti, jus relictae or legitim out of the deceased's estate'.")—(Lord polwarth.)
§ Clause 33 [Home Loss payments for certain caravan dwellers]:
§ LORD SANDFORD moved Amendment No. 21:
Page 33, line 34, after ("effect") insert—
("(a) as if in subsection (3) for the words "in occupation of a dwelling or a substantial part of it", "resided in the dwelling, or a substantial part of it" and "in occupation thereof" there were substituted respectively the words "in occupation of a caravan site", "resided in a caravan on that site" and "in occupation of that site";
(b) as if in subsection (4) for the words "resided in the dwelling, or a substantial part of it" there were substituted the words "resided in a caravan on the caravan site"; and
§ The noble Lord said: My Lords, I beg to move Amendment No. 21, which is a drafting Amendment for the sake of elucidation, to apply more clearly the references in Clause 32, subsections (3) and (4), to displacement from a dwelling to the situation where a person residing in a caravan or on a caravan site is displaced from that site.
Page 33, line 39, leave out ("subsection (3)") and insert ("subsections (3) and (4)").—
§ Clause 34 [Right to farm loss payment where person displaced from agricultural unit]:
LORD HUGHES moved Amendment No. 23:
Page 35, line 16, leave out ("or").
§ The noble Lord said: My Lords, I beg to move Amendment No. 23, and I wish also to speak to Amendment No. 24, because No. 23 is merely a paving Amendment. When the series of Scottish Amendments were down at Report stage and I asked for them to be deferred till now, I undertook to investigate what Scottish opinion was regarding these Amendments. Among others, I consulted the Crofters Commission and the National Farmers' Union of Scotland—two bodies which seemed to me to cover between them the majority of agricultural interests affected by this Bill. My contacts with the Crofters Commission were in writing, and then I followed the line of letting the National Farmers' Union of Scotland know what the Crofters Commission had said. For their interest, they adopted the views expressed by the Crofters Commission.
As I said on the Amendments to Clause 2, in the light of these discussions I am prepared to accept that the Amendments which the Government have now retabled at this stage are satisfactory and I have therefore no reason to object to any of them. If I may quote in part from what the Crofters Commission wrote to me, they said this:
The Commission, in exercise of their statutory function to advise the Secretary of State on crofting matters, have had discussions with the Department of Agriculture and Fisheries for Scotland on a number of points which now appear to be satisfactorily covered by the amendments to the Bill proposed to be moved on Third Reading next week".
They then went on to refer to the various points which have been taken care of by these Amendments. They continued:
The one fresh point which has emerged since the Commission considered the provision of the Bill in relation to crofters concerns farm loss payment. The position here will be that (1) The farm tenant holding on a lease of which not less than three years remain unexpired will qualify for this payment. (2) The farm tenant on tacit re-location or on a lease with less than three years to run will not qualify; (3) the crofter will not qualify. In all three cases under Clause 47
which I think is now Clause 48
and the proposed new clause following it the tenant's compensation will be assessed having regard to his security of tenure—which is substantially security for life in the case of farm tenants and security in perpetuity in the case of crofters. This recognition of the true duration of the tenancy right brings into question the validity of making a three years leasehold the watershed dividing those who can qualify for farm loss payment from those who cannot and suggests that the farm tenant and the crofter should qualify in every case".
§ As I understand the position, it is this: we might have two adjoining farms affected by proposals for road works or reservoir works. In one case the man is sitting on a lease which has three years or more still to run. He may have been in the farm for a year, five years, ten years or fifteen years. What matters is that there are three years or more still to run. His neighbour on the adjoining farm has been there for many years. His lease has run out, but by virtue of the law he is there, if he so wishes, for the rest of his life and can pass the tenancy on to his son. So he has the possibility of a tenancy for much longer in many cases than the three years that remain in a lease.
§ Similarly, the crofter is there in perpetuity. His right is very much better than that just coming from a three years balance of lease. In these circumstances, I cannot see why the three years is taken as the position which will determine that farm loss payments should be made. In putting forward an Amendment of this kind I was conscious of the fact that I was venturing into a field which might have repercussions in other parts of the Bill. I should be very much surprised if the Amendment which I have put forward is technically acceptable because it probably has consequences elsewhere. If the Government are disposed to agree with me that injustice would be done by sticking to these three years, then I would invite them to accept this Amendment on the basis that the opportunity would be afforded to another place for the Government then to table whatever other Amendments were necessary to put the matter in order.
§ If the opportunity had been available to do this at either the Committee stage or Report stage, there would have been a substantial opportunity available to me to propose all the necessary further 342 Amendments. But, coming up at this last stage—not of my seeking but of others doing—I am deprived of what would have been the ordinary Parliamentary opportunity. Therefore unless the Government can advance some perfectly valid reason why the three years' provision should remain, then, defective or satisfactory, they should accept this Amendment. I beg to move.
§ 7.16 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, the technical method that the noble Lord, Lord Hughes, has suggested would, so far as I know, be a perfectly valid way of dealing with this matter were I to be basing my argument on pure technicalities. I am not going to do so; I am going to develop this as a matter of principle. Apart from having discovered what "tacit relocation" means—which, for the benefit of those who do not know, means not being relocated but staying in the same place—I do not want to address the House on the technicalities of this matter at all. Perhaps the noble Lord, Lord Hughes, may recall—I do not know whether he was present at the time or not—that we have had discussions in the course of this Bill on similar points regarding England and Wales. He will appreciate that the scheme of the Bill on farm loss tenants has been to treat the so-called owner, who is the owner or tenant with three or more years to run, and whom the noble Lord correctly mentioned, in a different way from the tenant who has less than three years to run on a lease, or a tenancy from year to year.
One of the reasons why this has been done—and at the moment I am talking about South of the Border; I will come to Scotland in a moment—is that traditionally the protection and the law relating to the two different sorts of tenure on an agricultural holding have developed in entirely different directions. For instance, it was partly in recognition of the Government's unwillingness to put in provisions for farm loss payments for the tenant whose lease has less than three years to run, that we now have what is Clause 48, which provides for the reversal of the fairly recently propounded assumptions for the purposes of assessing compensation. That was the clause to which the noble Lord, Lord Hughes, rightly referred.
343 As I explained at earlier stages of the Bill, under Clause 48 (and the same thing is now being provided by my noble friend Lord Polwarth's Amendment No. 29, which adapts Clause 48 for Scotland, and the special provisions in the new clause in Amendment No. 30 which deals with the particular problems of the legislation for crofters) we shall have the situation whereby we disregard altogether the scheme for the purposes of assessing compensation. The noble Lord will probably remember the way this was explained previously. We have to take account of the fact that the person is losing his land in whole or in part. One looks at the provisions of the Agricultural Holdings Act or of the Agricultural Holdings (Scotland) Act and one finds when planning permission for a scheme has been granted—in this case for public work—normally one may assume that the tenant of the farm can be got rid of in order that that development should take place. In other words, the landlord can get rid of him on the strength of the planning permission that has been granted for the development, and until we introduced Clause 48 the law, certainly South of the Border, has been that you assessed compensation on the assumption that the owner of the land was going to be able to get rid of the tenant on the strength of the scheme of public works, and in those circumstances the tenant is likely to have comparatively modest compensation paid to him because one assumes that he is going to go reasonably soon anyway.
Now that is reversed in Clause 48 and the subsequent Scottish provisions. We now assume that although the owner can get planning permission for something else you can take that into account. You do not take account of the scheme itself, and therefore you credit the tenant with security of tenure which he would have and you disregard the scheme altogether. This greatly increases the prospects of him getting compensation on a larger scale but it is of course tied, and has to be tied, statutorily to the statutory machinery for dealing with the termination of agricultural tenancies. That is why one has references in Clause 48 to these two sections of the Agricultural Holdings Act. We are now putting in the equivalent sections of the Agri- 344 cultural Holdings (Scotland) Act and the situation is not the same in law as it is for owners.
That is the basic scheme of the Bill. The payment which will come as compensation under Clause 48, with the long-stop of the four years rent under Section 12 of the Agricultural (Miscellaneous Provisions) Act 1968, which applies to Scotland except in the case of crofters, as I understand it, is intended to be, as it were, a make-weight for the tenant not having the farm loss payment. The owner who loses his farm does not get the four times rent or anything like that; he is dealt with on a perfectly ordinary basis of having the value of his interest taken into account and assessed in the ordinary way of compulsory purchase. But we have to create an artificial situation for the tenant of three years or less, taking account of the existing law.
§ LORD HOY
I am grateful to the noble Viscount for the explanation he is making, but did not the 1968 Agricultural (Miscellaneous Provisions) Act already make a differentiation? Is it not a fact that in that Bill the farm tenancies in Scotland were differentiated as between those of England and Wales, and whatever the law was up until that time the very fact that someone was a tenant farmer, he or she was entitled to have as his or her successor a member of the family who was associated with agriculture, and to this extent the Scottish position was different from the rest of the country.
VISCOUNT COLVILLE OF CULROSS
I think that is so. I did not remember that it was in the 1968 Act but I knew it was the law. I was just going to come on to this point. I was trying to set the background about the difference in the legislation for tenants as opposed to owners, which inevitably affects the way that one frames the compensation provisions in this Bill.
§ LORD HOY
My Lords, I did not want to get up quite so quickly again. All I am saying is that I cannot remember whether it was the 1968 Act or the next one, but on that occasion a differentiation was made between tenants in Scotland and tenants in England and Wales. So he had certainly much greater security of tenure than in other parts of the country.
VISCOUNT COLVILLE OF CULROSS
I accept this. As I said I am just coming on to this very point. What the noble Lord, Lord Hughes, is doing against the background of the Bill as reinforced by these two Amendments, Nos. 29 and 30, to which we shall come fairly soon, is suggesting that we should cut across the previous differentiation both in this Bill and in other legislation which divides off in law and in the Statute the position of the tenant from the position of the owner. I understand the point that the noble Lord is making, but in a way it is a somewhat bizarre one because I think he is saying that agricultural tenants in Scotland (and this is reinforced by Lord Hoy's point) and the crofters have now been legislated into a position whereby they are in fact virtually in the same position as an owner. I think that is really what the noble Lord, Lord Hughes, was saying. That may be so in practice.
I understand the point the noble Lord is making. The laws may have been so altered that it gives them, and indeed their successors, an almost indeterminate period of tenure, but I am afraid that I cannot advise the House that the artificial creation of this position by Statute is the only way in which one can frame the compensation code. I think one has to realise that whatever you do by a method in a Statute to increase the security of tenure of the tenant, you still do not get away from the fundamental division, which I believe applies in Scots law as well as it does in English law, between the tenant, or somebody who is still said to be the tenant, and the owner of the land itself. Now that distinction remains in Scots law as it does in English. To suggest that it has been so whittled away that one has altogether to disregard the way in which the law has been built up when framing this sort of measure would, I suggest, be a mistake.
Now what would be the effect of leaving the Bill without the farm loss payment when one looks at the Scottish position? Unlike the tenant in England, as the noble Lord, Lord Hoy, has already said, the Scottish agricultural tenant has already acquired by Statute, not by common law, a greatly increased security of tenure, and the crofter an almost infinite one. The Bill deals fairly generously with crofters already. If the house goes they get the home loss payment; they get the mort- 346 gage provisions under Clause 41; they will get, if the buildings are left, injurious affection for the buildings under Part I of the Bill and they will get the ordinary compensation to which they are already entitled in the law relating to crofting. So they are fairly well done by in terms of Statute. But in addition to this—
§ LORD HUGHES
My Lords, may I interrupt the noble Viscount on one point only? When he said the crofter would get the home loss payment, where the farmer, the owner, lives on the farm and owns his house, whether a tenant of three years or more or an owner, does he qualify for home loss payment as well as farm loss payment? Because if so he is in no different position than the crofter.
VISCOUNT COLVILLE or CULROSS
As I understand it I think the owner does, but the tenant does not, but I must check on that.
§ LORD HUGHES
What I am saying is that bringing in the reference to the crofter getting his home loss payment is an artificial point because he is in fact the owner of the house on the croft; and the farmer who owns his house will get a home loss payment as well as the farm loss payment which, after all, is a year's profits.
VISCOUNT COLVILLE or CULROSS
But he gets the home loss payment because of the situation the noble Lord has mentioned. He probably—I think he almost always did—built the house or provided the house in the first place. I am simply saying that under this Bill if you look at the rest of the provisions which give him compensation he is already fairly generously dealt with.
§ LORD HUGHES
The noble Viscount put it as though the crofter was being especially generously treated in getting a home loss payment. He is not; he is just being put in the same position, if I am right, as anybody else who owns his home. He is not being favourably treated. I agree he may be generously treated, but he is being equally generously treated with other people.
VISCOUNT COLVILLE OF CULROSS
My Lords, I was wrong. In fact the owner and tenant both get their home loss payment, so I think the point goes. But I was inviting the noble Lord at that moment to look at the peripheral parts 347 before we come to the centre. The centre of it is this: Under Clause 48 as existing, and as we propose to amend it, and the new clause for crofters, the compensation that the tenant or the crofter will get takes account—the more so because of his increased security of tenure in Scotland—of that very security of tenure in assessing the compensation that he gets. To that extent, to the extent that he has greater security than the tenant in England, because of the existing Statute law which we merely adapt, he has the advantage over the tenant in England and Wales, and except in the case of the crofter he will still have the fall-back of the provisions of Section 12 of the Agricultural Holdings Act 1968 to underpin any shortfall there may be. We think that the result of the valuation of a croft on the basis of this sort of security of tenure is likely, as I said when discussing this clause in regard to England, to be beneficial, because the longer the security that you assume, presumably in valuation the greater the number of years' purchase you take for the capital value of the holding.
But to go beyond the adaptation and the adoption of the existing statutory provisions to protect the tenant, whether in England and Wales or Scotland, seems to us to strike at the basic subdivision of the whole of the principle of this measure: that we treat an owner and a tenant in a different way. It may be artificial, but this is the way the law has been built up. It would have the repercussion, of course, of making the situation quite different in principle in England and Wales from what it would be in Scotland, and we do not think that either the small tenant or the tenant of short-term in Scotland, or the crofter, is going to be badly affected, in view of the concessions that were made and are now being repeated in Scotland as a result of the discussion in another place which pointed out that there could be this differentiation which favoured the owner-occupier and which we have tried to meet by virtue of Clause 48. However much the law may have drifted into making the tenant into something very nearly an owner, I cannot advise the House to depart from this basic dichotomy of tenure which still exists North of the Border as it does South.
§ 7.33 p.m.
§ LORD HUGHES
My Lords, before the noble Viscount finally resumes his seat, may I ask him this question? The Bill as it stands confers rights on a tenant; it gives a tenant a right not only to the compensation under Clause 48 but to the farm loss payment under this clause which we are discussing—not only to an owner; it gives it to a tenant in certain circumstances. The tenant who has a lease of three years or more to run qualifies for both these items of compensation. The tenant who has three years to run in due course could become a tenant on tacit relocation in Scotland, so that what determines whether he is going to get one payment or two payments is not the merits of the case but the accident of the time during his lease when this event takes place. If he had been there for three years longer, and therefore one would assume with an even greater right to compensation than if he had been there for the shorter period, by being there three years longer and not having a balance of his lease to run, he loses. It seems contrary to all natural justice that this should work this way.
The noble Viscount said that, by doing what was done in Clause 48 and the new clause applying these conditions to Scotland, very much more generous compensation was being paid because the security of tenure aspect was being taken into account. That I accept. But that applies in exactly the same way to the man who has three years or more of a lease to run. Shall I put it this way? If we are going to compare like with like we should confine the comments to tenants. Can the noble Viscount assure me that if we have two farmers, one with three years or more to run and another one held on tacit relocation, in the second case the compensation under Clause 48 will be greater than the compensation payable to the man with three years to run, and that the farm loss payment which the second one gets more or less puts him in the same position as the man on tacit relocation? If that is the position, then I accept that the Government are right. But if the payments being made to both of these people under Clause 48 and the new clause are to be similar, then the man with the shorter right, the man with three years to run, is the one 349 who is going to get the larger payment, and I cannot see the justice of that. Can the noble Viscount give me that assurance: that the man on tacit relocation will have a higher compensation under Clause 48 and the succeeding clause.
VISCOUNT COLVILLE OF CULROSS
My Lords, it is extremely difficult to take this agricultural side entirely out of the context of the rest of the compensation code. May I take the noble Lord, Lord Hughes, back a moment and away from the agricultural field, because this principle applies across the board with tenancies of all sorts. I personally know the law in England and Wales very much better than I know what happens in Scotland, but I think the basic land clauses codes are very similar in both countries. Precisely the same point applies to the person with a business tenancy of, say, a shop. It does not make any difference whether you look at a business or agriculture for this purpose.
§ LORD HUGHES
No, my Lords. Would the noble Viscount give way for one moment? It is not the same because I do not know of any business tenancy which can be continued on tacit relocation.
VISCOUNT COLVILLE OF CULROSS
Well, my Lords, my noble friend says the situation in Scotland is different in this matter, but the fact remains, I would suggest, that if the premises of a tenant of a business firm, a shop, are compulsorily acquired, and he has a lease which is, say, of three years or five years, it will be the value of that lease that he gets. If he has only a very short lease of a year or less to go, then he will be compensated under a different code in Scotland as in England, and he will in the case of Scotland not be given the benefit of any security of tenure. In fact, he did not get very much benefit of security of tenure previously, although he does under this Bill in England. You cannot altogether, therefore, dissociate what is being done in agriculture and take, as it were, an arbitrary line of three years from what applies to the rest of the compensation code.
350 The noble Lord wants an assurance. I cannot say what the Scottish Land Valuation Court is going to do about this matter, but I think the noble Lord will himself have been involved in sufficient matters of valuation in the course of his long civic career to be able to know roughly that this is likely to be the case. If you value a tenancy which is assumed to be a very long or indeed a perpetual one you are likely to get a greater value than if you value a tenancy which has only three years to run. Therefore, I would expect the results of these cases to be in favour of the tenant who has the shorter tenancy in law but the one which is protected longer by Statute.
§ LORD HUGHES
My Lords, I am sorry, but the noble Viscount has admitted that he is not as familiar with Scottish law as with English law. What I suggest is that no one valuing a tenancy with a three years' lease to run is going to value that on the basis that there is only three years, because anyone dealing with this subject knows perfectly well that when the three years have expired the tenant can continue to sit there. So he is there for life just as much as the man whose lease has expired. So it is not the case that one man is going to be valued on three years and another man is going to be valued on his life expectation; they are both going to be valued on their life expectation.
VISCOUNT COLVILLE OF CULROSS
My Lords, that may be so, but the tenant on a three years' lease or more does not, as I understand it, profit from the switch of assumptions in Clause 48 of the Bill as applied to the tenant in Scotland. The noble Lord shakes his head but what assumption is to be made about his continuation of tenancy? I do not believe that this has ever been decided by the Land Valuation Court in Scotland. It may have been in England. The result in England was that when you looked at this situation you took into account the scheme which would in fact enable the landlord to terminate that tenancy. Why should the valuation procedure in Scotland fail to take account of the fact that if, theoretically, the man was going to stay for another three years there was going to come a scheme which would enable the landlord to terminate 351 that tenancy? I cannot see any reason why the courts in Scotland should come to a different conclusion on this point from that of the courts in England. This is precisely what we hope to reverse in Clause 48.
I cannot see any reason there why what I have said about the assumptions which will underlie the two different forms of valuation are not sound. But there is one additional point, that where one considers the tenant with the three year tenancy and the owner, they do not automatically get the farm loss payment. They get it only if they go back into farming within the specified time and start up on a farm somewhere else. So it is a conditional payment. I will not go into all the details of it but they do not automatically get the farm loss payment. What I am saying is that the short term tenant or the crofter will automatically get the benefit of the valuation under Clause 48-and Clause 49 in Scotland—and therefore he is bound to get his payment, whether or not he starts up anywhere else.
I have made a long speech and I have tried to answer the noble Lord's questions. If I have not convinced him I am sorry, but I must go back to the point that although I cannot forecast what the courts will do—it would be foolish of me to try to forecast the values that the valuation courts in Scotland would put on this matter—I have attempted to set out what I believe is likely to be the situation. I have tried to deal with the position between the two forms of tenure which we still want in principle to stick to and adapt in order to provide different forms of compensation, building upon each and upon experience in the past. I am sorry if the noble Lord, Lord Hughes, does not like it, but nevertheless that must be the principle upon which the Government must stand.
§ LORD HUGHES
My Lords, it looks as though it is to be a duel between us if no-one else wishes to enter the battle. I will only say this: I am extremely dissatisfied with what the noble Viscount has said. I am quite certain that if his knowledge of the law of Scotland, particularly of agricultural law, had been as sound as no doubt his knowledge of the English law is, he would not have 352 said some of the things that he has said. The dividing line which is being imposed in Scotland is wholly artificial. The noble Viscount said that the tenant with three years to run does not automatically get the farm loss payment. Of course that is so; but my Amendment would not give it automatically to anybody either, because I have not interfered with what is in the Bill itself, namely, that the farm loss payment is only made to someone who starts up in a farming business somewhere else within three years and if he never starts up, or if he waits four or five years to start up, he is not entitled to the farm loss payment. I am not quarrelling with that. What I am saying is that there are two classes of tenant: the one whose lease has expired and who can remain there for the rest of his life and transfer the lease to his son, who in turn can remain there for his life. He is not to qualify for a farm loss payment. But if it had happened while his lease still had some time to run he would get both payments. The noble Viscount has not been able to contradict what I have stated, that it is virtually certain that in assessing the compensation under Clause 48 (or in Scotland under Clause 49) the amount which would be paid to the man who was dispossessed of his farm while his tenancy had three years or more to run would be as great as the man who is on tacit relocation because the court is bound to take into consideration that that man's lease is not going to be terminated at the end of three years.
The division therefore is a wholly false one. It is perhaps valid in relation to business premises, perhaps valid in relation to English agricultural and land laws but it has no validity in Scotland whatsoever. I doubt whether in the past I have often found myself in complete agreement with the National Farmers' Union of Scotland; I do not know whether I have ever been in complete agreement with the Crofters Commission. I am quite certain that I have never been in complete agreement with both of them at the same time. Yet that is the position in which I find myself now. I cannot accept what the Government have said. Having regard to the composition of the House it would be a waste of time to divide the House. I think this is a case where I have the arguments but the Government have the troops.
§ LORD BALERNO
My Lords, before the noble Lord, Lord Hughes, sits down may I just take the opportunity of saying that I am very much persuaded by his arguments. I think the tacit relocation for Scottish agriculture is a very much cherished system of land tenure, and to knock it in the face is certainly an unwise thing to do. I have only one other remark to make. I think this will be an absolute bonanza for the Scottish lawyers, and I have no confidence that if the matter comes to judgment the Scottish judges or whoever evaluates it will in any way be likely to accord with the English judges.
§ LORD HOY
My Lords, I am certain that even the noble Lord, Lord Denham, would grant me leave to say a word or two in order to pour a little oil on troubled waters. I doubt whether the noble Lord understands what this is all about, but I am sure he wants to keep us all in order. If I may have his leave and the leave of your Lordships to speak, I am certain that we should not want to finish on an unsatisfactory note. The noble Lord, Lord Balerno, has rightly pinpointed what I attempted in a short interjection some twenty minutes ago. I remember very well that the difference between the Scottish position and the English and Welsh position was made in a Bill which I was taking through the House of Commons, and which indeed caused considerable trouble from the Scottish National Farmers' Union. I think what my noble friend has done to-night is to prove that if we allow this Bill to go through, at least to the best of his belief and mine, we shall be creating an anomaly between two sections of farming which we feel to be unjustifiable.
The noble Viscount has been very courteous and has argued his case well, but I thought at the very least, when this difference of opinion arose, that he would have said that he was prepared to have one more look at the point; and after we had the intervention from the noble Lord, Lord Balerno, I found it difficult to understand why the noble Lord, Lord 354 Polwarth, did not say, "Well, if there is this difference we will have another look at it". I cannot see what harm this would do, because it would be very foolish indeed to legislate an anomaly.
The noble Viscount, Lord Colville of Culross, said that we do not know what the judges will decide in cases of this kind. The judges, after all, can only decide on the law that we are creating. It is not for them to create law but to interpret it, and if there is an anomaly that makes it all the more difficult. I would not go quite so far as the noble Lord, Lord Balerno, in saying that by agreeing to this we are creating a bonanza for Scottish lawyers; but when there is this difficulty and if there is an anomaly all I am saying is—and I am certain that my noble friend Lord Hughes would agree—that if the noble Viscount would say, "Having thought it over once again, and having had a word with my noble friend Lord Polwarth, I should like to look at it just once more", then of course we should be perfectly willing to do it. Despite the fact that my noble friend Lord Hughes feels that he has numbers against him, I am sure that he has justice on his side and it may well be that if we cannot get a satisfactory reply we should decide this matter for ourselves and for the judges in the Division Lobbies of your Lordships' House.
§ VISCOUNT MASSEREENE AND FERRARD
My Lords, would the noble Lord not agree that the protection which Scottish agricultural tenants now have, which of course was brought in by the Acts of the Government of the noble Lord opposite, is really complete appropriation of the landowner's land? As we have heard in this debate, and as I know only too well, if one has a farm tenant, he and his descendants have that farm for hundreds and hundreds of years. The landowner has, to all intents and purposes, had his land appropriated. I do not see why the tenant should have any more compensation than a tenant in England or Wales where he is under a lease for a certain number of years. When the landowner had his land expropriated under the law brought in by the Government of noble Lords opposite, he got no compensation for losing his land. I and my descendants have lost a lot of land for ever owing to that law which the noble Lord's Government brought in. 355 I do not see why a tenant should get any more compensation at ail, because the landowner received no compensation for losing his land. Why should the tenant get compensation for something for which he has not paid.
§ LORD HUGHES
My Lords, the noble Lord, Lord Balerno, asked a question before I finally resumed my seat which makes it technically proper for me to get up again although I did not gather that the noble Viscount, Lord Masserene and Ferrard, was interrupting my speech. In fact he was resuming the debate on the 1968 Act, and on that basis I would have expected him to be moving an Amendment that nobody should get any farm loss payment and nobody should get the benefit of Clause 47, and that when the noble Lord, Lord Polwarth, moves the new clause after Clause 48 the noble Viscount, Lord Massereene and Ferrard, should be opposing it on these views.
However, having regard to what my noble friends feel, they have persuaded me that I should be wrong not to carry this matter to a Division, because if the Government are right they have a further opportunity in another place of pressing their point of view. But by having deprived me of the opportunity of raising it before this stage, if the Amendment is rejected that ends the matter, because the other place can only consider Amendments to Amendments. If the Government wanted to be fair, if they were absolutely certain that their case was right, they would accept the Amendment and ask the other place to take it out for reasons advanced there, where at least they would have the advantage of having the Lord Advocate trying to persuade them on the law of Scotland. In these circumstances, my noble friends think that it would be a dereliction of duty on my part not to press the Amendment. In saving that, I am not casting any reflections on the noble Viscount.
VISCOUNT COLVILLE OF CULROSS
My Lords, I appreciate that I am a very poor substitute for the Lord Advocate and it may well be that I have this wrong. The noble Lord is perfectly right that we cannot reconsider this matter at all unless this Amendment is accepted. Perhaps I may, by leave, answer this point. I am as much out of order as the noble 356 Lord, Lord Hoy, if I do not obtain the leave of the House.
VISCOUNT COLVILLE OF CULROSS
Except that my noble friend Lord Denham did not pull me up. I have been talking to my noble friend Lord Polwarth and to my noble friend Lord Sandford about this matter. It probably would be as well if we were to check the matter up. I may say that if my noble friend Lord Balerno thinks that there is something in this point also, of course I wish to pay regard to his views as well as to those of noble Lords opposite. Upon reflection, and having discussed the question with my noble friends, I think that we should consider again some of the points that noble Lords opposite have made. I do not think that even my right honourable friend the Lord Advocate will be able to forecast what the Land Valuation Court in Scotland will say. I do not think that anybody will be able to give assurances on what the precise effect of this will be, because it turns on valuation and assumptions and it is difficult in a vacuum to know the result. But, on the assumption that we cannot necessarily maintain this particular provision in the Bill, and that the Government may have to advise another place that it is wrong to have it in, we are prepared to have another look at this matter. I do not know whether or not the Amendment is acceptable technically. I do not think that it very much matters. Similarly, if it has to be put right and to be maintained, then an Amendment can be dealt with in precisely the same form in another place. I understand the difficulties under which the noble Lord has laboured because of the time scale of the Scottish adaptations. But I may say that the English N.F.U. got on to this point a long time ago. I understand the noble Lord's own difficulties here and in the circumstances we are prepared to accept these two Amendments, but without any promise that they will finally stay in the legislation when it is passed.
§ LORD HUGHES
My Lords, the noble Viscount was very generous at the last stage in agreeing to defer all the Scottish Amendments to this stage. He has become even more generous to-day and 357 leaves me very much in his debt, irrespective of what the other place may do to the Amendment. I am most grateful.
Pate 35, line 17, leave out from second ("lease") to end of line 19 and insert ("with an unexpired period or continuing on tacit relocation, or of a crofter;").—(Lord Hughes.)
§ Clause 40 [Duty to rehouse certain caravan dwellers]:
§ LORD SANDFORD moved Amendment No. 25:
Pace 44, line 9, after ("effect") insert—
("(a) as if for the words preceding paragraph (a) there were substituted the words "Where a person residing in a caravan on a caravan site is displaced from that site in consequence of"; and (b)")
§ The noble Lord said: My Lords, we are back to caravans and England. This is a drafting Amendment for the sake of elucidation to apply the reference in Clause 39(1) to displacement from residential accommodation to the situation where the person residing in a caravan on a caravan site is displaced from that site. Amendment No. 26 is consequential upon Amendment No. 25. I beg to move.
Page 44, line 23, leave out ("residential accommodation or").—(Lord Sandford.)
§ Clause 41 [Power of relevant authority to make advances repayable on maturity to displaced residential owner-occupiers]:
§ LORD POLWARTH moved Amendment No. 27:
Page 46, line 21, at end insert ("and at the end there shall be added the following words" or by virtue of a tenancy or other interest to which the Crofters (Scotland) Acts 1955 and 1961 or the Small Landholders (Scotland) Acts 1886 to 1931 apply;
(ii) in paragraph (b) for the word "tenancy" there shall be substituted the words "lease or by virtue of such a tenancy or interest";")
§ The noble Lord said: My Lords, this Amendment extends the provisions of Clause 41 to crofters, landholders, statutory small tenants and crofters in Scotland. As I explained in relation to an earlier Amendment, the position of these classes of tenants in respect of their dwellings is closely analagous to that of an owner-occupier and this Amendment has the effect of bringing them within this definition. I beg to move.
§ Clause 47 [Compensation in respect of short business tenancies]:
§ 7.58 p.m.
§ LORD STOW HILL moved Amendment No. 28:
Page 51, line 17, leave and insert—
("(1) Where in pursuance of any enactment providing for the acquisition or taking of possession of land compulsorily an acquiring authority—
(2) Subsection (1) of section 39 of the said Act of 1954 (right of tenant to apply under the said Part II for a new tenancy to be disregarded in assessing compensation for compulsory taking of possession of land subject to short tenancy) shall cease to have effect.")
§ The noble and learned Lord said: My Lords, Clause 47 is designed to deal with the principles on which compensation should be assessed in the event of compulsory taking. Under Part II of the Landlord and Tenant Act 1954 the occupant of business premises is entitled in certain circumstances specified in Part II to apply for and to be awarded a further tenancy of his premises. Section 39 of the 1954 Act, to which I have referred, provides that that right to have a fresh tenancy in certain circumstances is to be disregarded in assessing the quantum of 359 compensation available in the event of a compulsory taking. Clause 47, subsection (1), as it at present stands, would repeal that provision of Section 39 of the 1954 Act. The object of that is in order to provide that the right of the tenant to a new lease should be taken into account in assessing compensation payable both to the landlord and to the tenant. The difficulty with regard to Clause 47 as it at present stands (as those who on this side of your Lordships' House have considered it think, rightly or wrongly) is that it does not achieve its purpose. You may constantly get cases in which, for example, the acquiring authority as part of its plan acquires possession of the land, with the result that under certain decided cases, which I will not cite to your Lordships, the right to a further tenancy could not be taken into account. If that is a correct view, then Clause 47(1) as drafted at present fails of its purpose.
§ The object of the Amendment which I move is to try to ensure that what I conceive the Government's purpose to be in drafting Clause 47 is in fact achieved. The Amendment would seek to insert in front of the existing subsection (1) of Clause 47 the new subsection set out in the Marshalled List which would require in terms, affirmatively, that the right to have a new lease is to be taken into account in assessing the compensation payable both to the landlord and the tenant in the event of a compulsory taking. Ordinarily that would produce the result that the measure of compensation payable, at any rate to the tenant, would be enlarged. Therefore, the Amendment is designed to give back to Clause 47 an effect which we on this side of the House, rightly or wrongly, think it would not achieve because of the way in which subsection (1) is drafted.
§ The effect of the Amendment would be fairly considerable when the acquiring authority or the local authority is doing what I think is commonly known as "topping up"; that is to say, making a payment in order to achieve justice, even if the specific term laying down the right to compensation is not precisely fulfilled. That right is at present preserved in subsection (5) of Clause 37 of the Bill, and 360 the effect of the Amendment which I commend to your Lordships would be that it would really enlarge the power of the paying authority to see that justice was done by a topping up process under the new form which it takes in subsection (5) of Clause 37. That basically is the reason for the Amendment. I beg to move.
§ LORD SANDFORD
My Lords, I am glad to give yet another demonstration of the reasonableness and flexibility of the Government, to express our gratitude to the noble Lord, Lord Stow Hill, for the explanation of his Amendment and what it seeks to achieve, and to confirm that it is indeed necessary to resolve this anomaly and therefore it is acceptable to us.
§ LORD STOW HILL
My Lords, I only rise again to thank the noble Lord very sincerely for what he has just said. I am most grateful to him.
§ Clause 48 [Compensation in respect of agricultural holdings]:
§ LORD POLWARTH moved Amendment No. 29:
Page 52, line 38, at end insert—
("(7) In the application of this section to Scotland—
§ The noble Lord said: I beg to move Amendment No. 29. This brings us to the clause we have already discussed somewhat in advance, Clause 48. The purpose of this Amendment is to add a further subsection to apply the provisions of the clause to agricultural tenants in Scotland who hold on leasehold tenure. The effect is, therefore, to give these tenants the entitlement given in the clause to have their security of tenure taken into account. This is done by paragraph (a). Paragraphs (b), (c) and (d) are necessary because we must make provision in Scotland to deal with the case where a tenant is dispossessed not by notice to quit but by resumption under a provision in the lease. In Scotland such a resumption is not, as in England, regarded as a notice to quit. The Amendment also makes it clear that this clause does not apply to the other classes of Scottish tenants, crofters, et cetera, with whom we shall be dealing in a new clause which I shall be proposing shortly. I beg to move.
§ LORD HUGHES
My Lords, the noble Viscount, Lord Massereene and Ferrard, having departed, it is not necessary for me to come to the Minister's aid.
LORD POLWARTH moved Amendment No. 30:
After Clause 48 insert the following new clause:
§ Compensation in respect of crofts, etc.
§ ".—(1) This section has effect where in pursuance of any enactment providing for the acquisition or taking of possession of land compulsorily an acquiring authority—
- (a) acquire the interest of the landlord in an agricultural holding which is a croft; or
- (b) take possession of a croft.
§ (2) In assessing the compensation payable by the acquiring authority to the landlord of a croft in connection with any such acquisition of an interest as is mentioned in subsection (1)(a) above—
- (a) there shall be disregarded any right of the landlord to apply to the Scottish Land Court under section 12 of the Crofters (Scotland) Act 1955 for authority to resume the croft and any such authority already granted which would not be or would not have been effective if in that section the reference to resuming the croft did not include a reference to its being resumed for the purpose of its being required by the acquiring authority; and
- (b) if the crofter has surrendered his croft under the said section 12 by reason of an authority which is to be so disregarded it shall be assumed that he has not done so.
§ (3) In assessing the compensation payable by the acquiring authority to the crofter in connection with any such taking of possession of a croft as is mentioned in subsection (1)(b) above, there shall he disregarded any right of the landlord to apply to the Scottish Land Court under the said section 12 for authority to resume the croft or any such authority already granted which would not be or would not have been effective if the said section 12 were construed in accordance with subsection (2)(a) above.
§ (4) If the compensation payable to the crofter as determined in accordance with subsection (3) above is less than it would have been if that subsection had not been enacted, it shall he increased by the amount of the deficiency.
§ (5) This section shall apply to part of a croft as it applies to an entire croft.
(6) This section shall apply to the holding or part of the holding of a landholder as it applies to a croft or part of a croft except that for any reference to a croft, crofter or section 12 of the Crofters (Scotland) Act 1955 there shall be substituted respectively a reference to a holding, landholder or section 2 of the Crofters Holdings (Scotland) Act 1886.
(1) This section shall apply to the holding or part of the holding of a statutory small tenant as it applies to a croft or part of a croft except that—
§ The noble Lord said: My Lords, I beg to move Amendment No. 30. I realise that at first appearance this new clause seems somewhat formidable, but I can assure your Lordships that it does no more than apply the provisions of Clause 48 to crofters, landholders and statutory small tenants who are not subject to provisions relating to notice to quit. The need for separate and somewhat lengthy provision is dictated by the different form of legislation governing these different forms of tenure. The main difference in the legislation is that where the landlord wishes to get possession of any land in the case of such tenancies he requires to proceed by way of an application to the Scottish Land Court for resumption rather than by notice to quit. I beg to move.
§ Clause 49 [Compensation where occupier is rehoused]:
§ LORD SANDFORD moved Amendment No. 31:
Page 53, line 17, at end insert—
("( ) Subsection (2) above shall apply in relation to a case where a notice to treat is deemed to have been served by virtue of Schedule 3 to the Town and Country Planing Act 1968 or Schedule 24 to the Town and Country Planning (Scotland) Act 1972 (general vesting declarations) as it applies in relation to a case where a notice to treat is actually served.")
§ The noble Lord said: My Lords, I beg to move Amendment No 31. It is a technical Amendment. Clause 49(2) provides briefly that where a private tenant is re-housed at the expense of an acquiring authority after notice to treat has been served on the landlord the compensation payable for the landlord's interest in the property is not enhanced by the vacant possession he thus obtains. In the case of a general vesting declaration, however, a notice to treat is only deemed to have been served. By this Amendment the clause will apply the limitation on the value of the landlord's interest in a case where the tenant is re-housed whether a notice to treat is actually served 364 or only deemed to have been served. I beg to move.
§ Clause 53 [Effect of counter-notice tinder section 52]:
§ LORD POLWARTH moved Amendment No. 32:
Page 61, line 5, at end insert—
("(d) in subsection (7), for the word "court" and for the words from "subsections (2)" to the end there shall be substituted respectively the words "the Bank within the meaning of section 3 of the Lands Clauses Consolidation (Scotland) Act 1845" and the words "the following provisions of the said Act of 1845 shall apply to that suns with the necessary modifications—
§ The noble Lord said: My Lords, I beg to move Amendment 32, which is of a fairly technical kind. Its purpose is simply to insert the appropriate references in subsection (7) of Clause 53. This clause covers the case where the tenant surrenders his interest in the land but the landlord does not do so, and provision is made for the situation where a landlord does not accept the sum payable by the acquiring authority for the surrender of the tenant's interest. The procedure for dealing with monies in such cases in England and Wales is governed by the Compulsory Purchase Act 1965, which was a consolidation measure. There is no precise Scottish equivalent, and it is necessary, therefore, to apply the relevant provisions of the Lands Clauses Consolidation (Scotland) Act 1845, and this Amendment makes the necessary substitutions. I beg to move.
§ Clause 55 [Effect of counter-notice under section 54]:
§ LORD SANDFORD moved Amendment No. 33:
Page 63, line 22, at end insert—
(3A) Where a tenancy is terminated by virtue of sub-section (3)(c) above, section 58 of the Agricultural Holdings Act 1948 (landlord's right to compensation for deterioration of holding) shall have effect as if the proviso required the landlord's notice of intention to
claim compensation to be served on the acquiring authority and to be so served within three months after the termination of the tenancy.")
§ The noble Lord said: My Lords, I beg to move another technical Amendment. Clause 55(3) is concerned with the acquiring authority's, the tenant's and the landlord's rights and liabilities in the situation where an agricultural tenant has given up possession of his holding to an acquiring authority and the authority has not been authorised to acquire the landlord's interest in part of the holding; that is, that part to which the authority's notice of entry did not relate. Subsection (3)(d) provides inter alia that any liabilities of the tenant to the landlord which arise on or out of the termination of the tenancy are transferred to the acquiring authority. One such liability could be in respect of compensation payable to the landlord under Section 58 of the Agricultural Holdings Act 1948 for general deterioration of the holding. Under this section the landlord has to give notice in writing to the tenant of his intention to claim such compensation not later than one month before termination of the tenancy. In the situation with which Clause 55 is concerned it is the tenant rather than the landlord or the acquiring authority who determines the date on which the tenancy is terminated, since this occurs when the tenant gives up possession to the acquiring authority. The Amendment therefore provides that in these circumstances the landlord has three months after termination of the tenancy to give notice in writing to the acquiring authority of his intention to claim compensation under Section 58 of the Agricultural Holdings Act 1948 for general deterioration of the holding. I beg to move.
§ 8.10 p.m.
§ LORD POLWARTH moved Amendment No. 34:
Page 63, line 27, leave out from ("(3)") to end of line 31 and insert—
("(d) for the words from "contract" to "1948" there shall be substituted the words "lease, the Agricultural Holdings (Scotland) Act 1949, the Crofters (Scotland) Acts 1955 and 1961, the Small Landholders (Scotland) Acts 1886 to 1931":
(c) in subsection (3A), for the reference to section 58 of the Agricultural Holdings Act 1948 there shall be substituted a reference to section 59(1) of the Agricultural Holdings (Scotland) Act 1949 and for the word
"proviso" there shall be substituted the words "said section 59(1)".")
§ The noble Lord said: My Lords, this Amendment is in two parts. The first amends the Scottish application which appears at present at subsection (4) of Clause 55. It has been expanded to include crofters, landholders and statutory small tenants so that they may all get the benefits of this clause. It also makes a small drafting improvement. The second part of the Amendment is the Scottish application of the one just moved by my noble friend Lord Sandford to page 63, line 22. The purpose is simply to apply this new subsection to Scotland by inserting the reference to the appropriate provisions of the Agricultural Holdings (Scotland) Act for the references to the English Act. My Lords, I beg to move.
§ Clause 58 [Notice to quit agricultural holding: right to opt for notice of entry compensation]:
§ LORD SANDFORD moved Amendment No. 35:
Page 67, line 4, at end insert—
("(6A) The reference in subsection (1)(a) above to a notice to treat served by an acquiring authority includes a reference to a notice to treat deemed to have been so served under any of the provisions mentioned in section 52(5) above.")
§ The noble Lord said: My Lords, this is another technical Amendment. Clause 58 provides for a person in occupation of an agricultural holding, having no greater interest therein as a tenant for a year or from year to year, to opt for notice of entry compensation if he is served with a notice to quit the holding after an acquiring authority have served a notice to treat on the landlord. In some types of acquisition, however, a notice to treat is not actually served, but is simply deemed to have been served. This occurs where a general vesting declaration is made, or where acquisition follows a purchase notice. In order to preserve the rights of a tenant under Clause 58 in these circumstances, the Amendment provides that the reference to the authority's notice to treat includes a reference to a notice to treat deemed to have been served. My Lords, I beg to move.367
§ LORD POLWARTH moved Amendment No. 36:
Page 67, line 4, at end insert—
("(7) In the application of this section to Scotland—
(a) for subsection (1)(b) there shall be substituted the following paragraph—
(b) in subsection (2)(a), for the references to sections 20 of the Compulsory Purchase Act 1965 and 11(1) of that Act there shall be substituted respectively references to section 114 of the Lands Clauses Consolidation (Scotland) Act 1845 and paragraph 3 of Schedule 2 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947;
(c) in subsecion (2)(b), for the references to the Agricultural Holdings Act 1948 and section 15(2) of the Agriculture (Miscellaneous Provisions) Act 1968 there shall be substituted respectively references to the Agricultural Holdings (Scotland) Act 1949 and section 15(3) of the said Act of 1968;
(d) in subsection (6), for the reference to section 32 of the Agricultural Holdings Act 1948 there shall be substituted a reference to section 33 of the Agricultural Holdings (Scotland) Act 1949;
(e) after subsection (6A) there shall be inserted the following subsections—
("(6B) This section and section 59 below shall have effect in relation to a notice given in pursuance of a stipulation in a lease entitling the landlord to resume land for building, planting, feuing or other purposes (not being agricultural purposes) as it has effect in relation to a notice to quit as if, in this section, subsections (1)(b) and (6) were omitted; and references in this section to the termination of the tenancy shall be construed accordingly.
(6C)This section shall not apply where the person in occupation of an agricultural holding is a crofter, landholder or statutory small tenant.".
§ The noble Lord said: My Lords, I beg to move Amendment No. 36 which applies to leaseholders in Scotland the provisions of Clause 58. This clause deals with the right of a tenant who is given notice to quit an agricultural holding to opt to have the compensation fixed as if he had been given notice of entry by the acquiring authority. The 368 Amendment does this by adding a subsection to the clause which substitutes references to the Agricultural Holdings (Scotland) Act 1949 for references to the English Agricultural Holdings Act 1948, and by substituting other appropriate statutory Scottish references. It also makes the provision normally required in Scotland to deal with a notice given under a power of resumption instead of a notice to quit. My Lords, I beg to move.
LORD POLWARTH moved Amendment No. 37:
After Clause 58 insert the following new clause:
§ Requirement to surrender croft, etc: right to opt for notice of entry compensation.
§ ".—(1) This section has effect where—
- (a)the person in occupation of an agricultural holding is a crofter and is required by an order of the Scottish Land Court under section 12 of the Crofters (Scotland) Act 1955 to surrender his croft; and
- (b) the crofter is so required—
- (i)after an acquiring authority have served notice to treat on the landlord of the croft or, being an authority possessing compulsory purchase powers, have agreed to acquire his interest in the croft, and
- (ii)where the Court have been satisfied under the said section 12 that the landlord desires to resume the croft for a reasonable purpose which is a purpose other than an agricultural purpose.
§ (2) If the crofter required by such an order to surrender his croft elects that this subsection shall apply to the order and gives up possession of the craft acquiring authority on or before the date on which the croft is required to be surrendered in accordance with the order—
- (a)section 114 of the Lands Clauses Consolidation (Scotland) Act 1845 (compensation for tenants from year to year, etc.) shall have effect as if the crofter had not been so required to surrender his croft and the acquiring authority had taken possession of the croft in pursuance of a notice of entry under paragraph 3 of Schedule 2 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 on the day before that on which the croft is required to be surrendered in accordance with the order; and
- (b)any provision of an order under section 12 of the Crofters (Scotland) Act 1955 relating to the compensation to a crofter shall not have effect in relation to the surrender of the croft by reason of the order.
§ (3) No election under subsection (2) above shall be made or, if already made, continue to have effect in relation to any land to 369 which such an order relates if, before the date on which the croft is required to be surrendered in accordance with the order, an acquiring authority take possession of that land in pursuance of an enactment providing for the taking of possession of land compulsorily.
§ (4) Any election under subsection (2) above shall be made by notice in writing served on the acquiring authority not later than the date on which possession of the croft is given up.
§ (5) This section shall have effect in relation to an order to surrender part of a croft as it has effect in relation to an order to surrender an entire croft and references to a croft shall be construed accordingly.
§ (6) The reference in subsection (1)(b)(i) above to a notice to treat served by an acquiring authority includes a reference to a notice to treat deemed to have been so served under any of the provisions mentioned in section 52(5) above.
§ (7) This section shall apply to a landholder as it applies to a crofter except that for any reference to a croft, crofter or section 12 of the Crofters (Scotland) Act 1955 there shall be substituted respectively a reference to a holding, landholder or section 2 of the Crofters Holdings (Scotland) Act 1886.
§ (8) This section shall apply to a statutory small tenant subject to the modifications set out in Part I of Schedule (application of section (requirement to surrender croft, etc.: right to opt for notice of entry compensation) to statutory small tenants) to this Act; and in accordance with this subsection this section shall have effect in relation to a statutory small tenant as set out in Part II of that Schedule."
§ The noble Lord said: My Lords, the last Amendment which your Lordships considered provided for the application to leasehold tenants in Scotland of the provisions of Clause 58. This new clause which, I am afraid, is necessarily somewhat lengthy because of the difference in the basic legislation, adapts these provisions to crofters, landholders and statutory small tenants, differences concerning the legislation for whom I explained earlier on. My Lords, I beg to move.
§ Clause 59 [Notice to quit part of agricultural holding: right to claim notice of entry compensation for remainder of holding]:
§ LORD POLWARTH moved Amendment No. 38:
Page 67, line 45, at end insert—
("(6) In the application of this section to Scotland—
§ The noble Lord said: My Lords, Amendment No. 38 inserts an additional subsection to Clause 59 to apply its provisions to leasehold tenants in Scotland. As your Lordships know, this clause gives a tenant who has been given notice to quit part of a holding and has opted to have it treated as a notice of entry the right, in certain circumstances, to require the acquiring authority to take the entire holding. The Amendment has to substitute such references as the Scottish Land Court for the Agricultural Land Tribunal, and the Lands Tribunal for Scotland for the Lands Tribunal. The Amendment also substitutes references to the appropriate Scottish Statutes. My Lords, I beg to move.
LORD POLWARTH moved Amendment No. 39:
After Clause 59 insert the following new clause:
§ Requirement to surrender part of croft, etc.: right to claim novice of entry compensation for remainder.
§ (".—(1) Where an order of the Scottish Land Court in respect of which a person is entitled to make an election under section (requirement to surrender croft, etc.: right to opt for notice of entry compensation) relates to part only of a croft or holding and that person makes such an election with the period of two months beginning with the date of the making of the order, he may also within that period serve a notice on the acquiring authority claiming that the remainder of the croft or holding is not reasonably capable of being farmed either by itself, or in conjunction with other relevant land as a separate agricultural unit.
§ (2) If the acquiring authority do not within the period of two months beginning with the date of service of a notice under subsection (1) above agree in writing to accept the notice as valid the claimant or the authority may, within two months after the end of that period, refer it to the Lands Tribunal for Scotland, and on any such reference the Tribunal shall determine whether the claim in the notice is justified and declare the notice valid or invalid in accordance with its determination of that question.371
§ (3) Where a notice under subsection (1) above is accepted as, or declared to be valid under subsection (2) above then, if before the end of twelve months after it has been so accepted or declared the claimant has given up to the acquiring authority possession of the part of the croft or holding to which the notice relates, section 114 of the Lands Clauses Consolidation (Scotland) Act 1845 shall have effect as if the acquiring authority had taken possession of that part in pursuance of a notice of entry under paragraph 3 of Schedule 2 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 on the day before the expiration of the year of the tenancy which is current when the notice is so accepted or declared.
§ (4) Subsections (2) to (4) of section 54 and subsection (3) of section 55 above shall apply in relation to subsections (1) to (3) above and to a notice under subsection (1) above as they apply in relation to those sections and a counter-notice under subsection (1) of section 54, and shall so apply with the necessary modifications and as if in section 54(3)(b) for the words "service of the notice of entry" and in section 55(3) for the words "the notice of entry" there were substituted the words "the order of the Scottish Land Court".
§ (5) Where an election under section (requirement to surrender croft, etc.: right to opt for notice of entry compensation) above ceases to have effect in relation to any land by virtue of subsection (3) of that section any notice served by virtue of this section shall cease to have effect in relation thereto.
§ (6) Subsection (3) above shall apply in the case of the holding of a statutory small tenant as if after the word "1845" there were inserted the words "and section 12 of the Agriculture (Miscellaneous Provisions) Act 1968".".
§ The noble Lord said: My Lords, this Amendment is really the other half of the Scottish application of the main provision. The Amendment which we have just disposed of applied the provisions of Clause 59 to leasehold tenants in Scotland. This new clause does the same thing for crofters, landholders and statutory small tenants. It gives such tenants the right to serve a counter-notice to a notice of entry affecting part only of a croft or holding. I do not think I need trouble your Lordships further on this point. My Lords, I beg to move.
LORD POLWARTH moved Amendment No. 40:
After Clause 63 insert the following new clause:
§ Provisions relating to acquisition of new rights in Scotland
§ (".—(1) Subject to the provisions of this section, the Lands Clauses Consolidation 372 (Scotland) Act 1845 and the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall apply subject to any necessary modifications to the compulsory acquisition under any enactment of a right in or over land by the creation of a new right as they apply to the compulsory acquisition of land under the enactment in question.
§ (2) Section 61 of the said Act of 1845 (estimation of purchase money and compensation) shall apply to the compulsory acquisition of such a right as if for the words from "value" to "undertaking" there were substituted the words "extent (if any) to which the value of the land in or over which the right is to be acquired is depreciated by the acquisition of the right".
§ (3) Paragraph 4 of Schedule 2 to the said Act of 1947 (protection for vendor against severance of house, garden, etc.) shall apply to the compulsory acquisition of such a right as if at the end there were added the following sub-paragraph—
- "(2) In considering the extent of any material detriment to a house, building or manufactory or any extent to which the amenity or convenience of a house is affected, the Lands Tribunal for Scotland shall have regard not only to the right which is to be acquired in or over the land, but also to any adjoining or adjacent land belonging to the same owner and subject to compulsory purchase."
§ (4) Nothing in this section shall affect the operation of any enactment which makes specific provision to the like effect as the provisions of this section.").
§ The noble Lord said: My Lords, I beg to move Amendment No. 40 which, rather surprisingly, although it introduces a new clause, does not in fact introduce anything new. Rather, it transplants existing provisions of the Bill to a more suitable place in it and widens their application. The existing provisions are in Schedule 1, paragraph 71, and in that location they of course apply only where land is acquired as a result of a blight notice. The intention was that they should apply generally to the compulsory acquisition of rights over land, and to achieve this it is necessary to have a new clause in the appropriate part of the Bill. Briefly, the provisions which we are transplanting provide a basis for the valuation of rights over land where these have to be acquired compulsorily; for example, to lay drainage pipes in connection with a road scheme. The basis is simply the effect on the value of the land caused by the acquisition of the right over it. My Lords, I beg to move.373
§ Clause 72 [Land affected by new street orders]:
§ LORD SANDFORD moved Amendment No. 41:
Page 76, line 29, leave out paragraph (a) and insert—
§ The noble Lord said: My Lords, I beg to move Amendment No. 41, the last Amendment from England. It does not alter the substance of the clause. At present, the clause is not correct in relation to orders made under Section 30 of the Public Health Act 1925, because such orders do not, in fact, prescribe outer lines for a new street as do orders made under Section 159 of the Highways Act 1959. The Amendment puts this right by making a separate reference to land which has a frontage to a highway declared to be a new street by an order under Section 30. The Amendment substitutes a new paragraph (a) in subsection (1) of Clause 72. Sub-paragraph (i) of the new paragraph (a) repeats the former provision in relation to an order made under Section 159 of the 1959 Act. Subparagraph (ii) makes separate provision for land which has a frontage to a highway declared to be a new street by an order under Section 30 of the 1925 Act and lies within the minimum width of the street prescribed by by-laws or a local Act. The effect of this is that Section 192(1) of the Town and Country Planning Act 1971 will have effect as if it included the land specified in sub-paragraph (i) and (ii) of paragraph (a) of Clause 72(1). My Lords, I beg to move.
§ Clause 83 [General interpretation]:
§ LORD POLWARTH
My Lords, I beg to move Amendments Nos. 42, 43, 44, 45, 46. These Amendments are purely concerned with definitions of a number of expressions arising because of the different Scottish conditions. Apart from 374 that they remove from lines 34 and 35 words which are no longer necessary following Amendment No. 14. My Lords, I beg to move.
§ Amendments moved—
Page 84, line 6, at end insert:
"cottar" has the same meaning as in section 28(4) of the Crofters (Scotland) Act 1955;
'"croft", "crofter" and "landlord", in relation to a croft, have the same meanings respectively as in the Crofters (Scotland) Act 1955;")
§ Page 84, line 9, at end insert ("or, in relation to Scotland, means a person in need under section 12 of the Social Work (Scotland) Act 1968 as read with section 1 of the Chronically Sick and Disabled Persons (Scotland) Act 1972.")
Page 84, line 20, at end insert:
(""holding", in relation to a landholder and a statutory small tenant, has the same meaning as in section 2(1) of the Small Landholders (Scotland) Act 1911 and "landlord", in relation to such a holding, has the same meaning as in the Agricultural Holdings (Scotland) Act 1949;
landholder" has the same meaning as in section 2(2) of the Small Landholders (Scotland) Act 1911;")
Page 84, line 23, at end insert:
"road" has the meaning assigned to it in the Roads (Scotland) Act 1970;
statutory small tenant" has the same meaning as in section 32(1) of the Small Landholders (Scotland) Act 1911.")
§ Page 84, line 34, leave out from ("25") to ("above") in line 35.—(Lord Polwarth.)
LORD POLWARTH moved Amendment No. 47:
After Clause 85 insert the following new Schedule—