§ 4.27 p.m.
§ Second Reading debate resumed.
§ LORD BALERNO
My Lords, to the best of my knowledge I am neither a vassal nor a superior. I hasten to add that neither am I a lawyer, but for the past nine centuries, as we have heard, the feudal system has furnished Scottish lawyers with a lot about which to argue. As bits of the system became out of harmony with the times, so have they been modified and simplified, but when simplified they only furnished opportunity for the introduction of further complexities. In spite of what my noble friend Lord Strathclyde has said about the proposals during the past 60 years to alter the Scottish feudal system, I respectfully submit that these alterations have been going on for at least the past 300 years. Indeed, the Bill which we are now discussing does just that; it actually amends the Feu Duties Act of 1597, which itself was an amending Act.
While there has been a steadily growing desire to do away altogether with feu-duty, the pace has been extremely slow. It is almost as though we cannot bring ourselves to throw away this lovely, tattered garment which has been of such use to us in the past. Admittedly, for 600 years it has worked well and, indeed, as has been said already, it served a most useful purpose during the Industrial Revolution. But I submit its value has been largely overtaken by the planning legislation of the past 30 years. However outmoded it has become, it is not going to give up without a fight. I suppose the Government are right in this Bill only to push the system a few inches towards its grave. Doubtless they have looked back over the long history of attempts to change and modify, and have realised that here of all the ancient laws of Scotland the national motto applies par excellence, "Nemo me impune lacessit", which translated into Scots, is "Wha daur meddle wi' me?"
The noble Lord, Lord Hughes, has referred to the interest that the Church of Scotland has in the matter of feuduties. They hold, I believe, more feuduties than anybody else, save, possibly, the university of which the noble Lord who is 483 promoting this Bill is the Chancellor. From feuduties the Church derives an annual income of £125,000. Most of these superiorities were actually bought by the old Church of Scotland for the endowment of the stipends of the churches which were being built towards the end of the last century, and they were bought, believe it or not, at about 25 years purchase. The present Bill proposes roughly 8¼ years purchase. The Church of Scotland does not oppose this figure, if only so as to bring the matter to a conclusion; and that is why I hope your Lordships will give sympathetic consideration to a very reasonable proposal that will, I hope, hasten the demise of the feuduties.
As the noble Lord, Lord Hughes, has mentioned, under the Bill as it stands redemption is purely voluntary—a voluntary act on the part of the proprietor of the land. This means that the Church can expect to have this millstone hanging round its neck for many years to come. The General Trustees of the Church of Scotland would like to see more definite progress, and they have put forward the proposal to which the noble Lord, Lord Hughes, referred, that this could be accomplished by inserting a new clause, that on the occurrence of the sale of the property the feuduty should be compulsorily redeemed. I can see no hardship being involved here, as this would be paid by the seller. Sales of heritable property in Scotland are, almost without exception, conducted by solicitors, and the redemption price would be a perfectly normal item of their transactions.
The noble Lord, Lord Hughes, has spoken about the form of receipt, and I would support every word he said there; I hope that it is correct that the Government may give some favourable consideration to this. To persuade them in this direction, I would like to say that at the present time, as for many years past, the Church of Scotland are redeeming the feuduties just by a simple receipt, which the proprietor can then put with his titles, and if he wants to register them he can register them and pay for the registration.
There is yet another simplification for which the Bill presents a unique opportunity. Local government in Scotland 484 is being reorganised. Again this is a matter to which the noble Lord, Lord Hughes, referred. There are a few churches in Scotland called the Burgh Churches, where the burgh has a right of pre-emption in the event of a change of use of the building. The noble Lord, Lord Hughes, gave as a reason for not supporting such a suggestion that the Church itself was imposing rights of preemption when the Church itself was selling property. This is a pity, because I think the answer to this is that when the Church of Scotland is selling a building it is normally a building which, if one was in England, one would call a consecrated building, and therefore it is the sentimental desire to see that the building is retained, or preferably passed to some other branch of the Christian religion.
I will not weary your Lordships with a disquisition on the subject of Parliamentary Churches, which are in a similar position, in that the local proprietors have certain rights of pre-emption. Both of these are anachronisms and the fact that they are recognised as anachronisms can be seen in the Act of 1970 which abolished such right of pre-emption in the case of the land surrounding the church, in the case of the glebeland. If it can be done for the glebeland it can be done for the churches also.
It is indeed a pity that we cannot get rid of this feudal system altogether, much as one hates to break up a lawyer's paradise. I have a very simple suggestion to make. The obligations other than financial imposed with the feuduty relate almost entirely to good planning and protection of amenities. The difficulties of this have been adumbrated by my noble friend Lord Selkirk. But why not pass over the rights in these feuduties to the local planning authorities, who can then, if they think it desirable, enforce the conditions of the feu, and if not they can ignore them; neighbours wishing the enforcement of the conditions would merely have to ask the local authority to enforce them, and the local authority would do so or not at their discretion in consonance with their good planning.
I find it rather peculiar that at this particular time your Lordships are in the process of discussing the Protection of the Environment Bill. We are now legislating for just those things that crop up 485 most frequently in the conditions of the fens, which can be summed up in the words, "Do not annoy your neighbour". With all the planning laws and this wonderful new environment Bill, I beseech the Government to consider whether there is really any need to retain this archaic cobweb of complexity which, so far as I can make out, as I have said, benefits nobody but the lawyers—and I say that with great respect in the presence of a great Scottish lawyer, Lord Selkirk, and the noble Lord, Lord Kilbrandon, who is not in his place.
The coincidence of these two Bills makes me wonder whether arrangements will be made to have a Law Officer for Scotland once again in your Lordships' House. Had one been present, I venture to think that this coincidence and its implications would have been spotted. The last Government arranged for the Lord Advocate to be a Member of this House and all we Scots greatly benefited from his counsel. In the near future we are promised further legislation for the simplification of the land laws of Scotland, and therefore it is all the more desirable that there should be a Law Officer in this House. Without any disrespect to my noble friend who has performed so ably for the Government to-day, I would ask the present Government to give serious consideration to this proposal.
§ 4.40 p.m.
THE DUKE OF ATHOLL
My Lords, like many other speakers I must declare an interest in that I own some superiorities which presumably will be affected by this Bill. I believe that I also pay a small amount of feuduty to the Church of Scotland, to which my noble friend Lord Balerno has referred, as part of the £125,000. On the whole, I welcome Part I of this Bill. I am sure that the Government are correct to proceed in this somewhat slow way. It is necessary to preserve the private planning conditions inherent in the feuing system, and if this cannot be done without keeping the nominal feuduty of one penny per annum if asked for, I see no reason for not keeping it.
We must all be pleased that vassals will have the opportunity of redeeming their feus but, as the noble Lord, Lord Hughes, said, many people are extremely worried about the legal costs involved. 486 I would support both his plea, and that of my noble friend Lord Balerno for a simplified receipt system. I believe that under Section 8 of the Feudal Casualties (Scotland) Act 1914 provision was made both for a recorded discharge and for a simple receipt which did not need to be attested or holographed as a recorded discharge. I also believe that the simple receipt was almost universally used, and, so far as I know, worked extremely well. I should have thought that the Government could have based the proposed receipt under this Bill on those lines. That is all I want to say about Part I of the Bill.
I cannot praise Part II so much. Its drafting is incomprehensible. The clauses are much too long and complicated, and the final four lines of Clause 7(1) seem very surprising. Perhaps I might read them:… the court may decern for the termination of the lease in respect of such part and the removal of the lessee therefrom; and, failing such removal, the court may, on expiry of the 28 days last mentioned, eject him there-from.The final few words conjure up a lovely picture of the noble and learned Lord, Lord Kilbrandon, dressed in all his robes, followed by counsel, ejecting someone from the house they had leased. I cannot believe that this is really what is meant. Could not the Bill say what is really meant, which is presumably that an order may be obtained to get the person out of the house. In this day and age, what does the phrase, "the court may decern" mean? That phrase must be a relic of the nineteenth century.
The second Part of this Bill is full of unintelligible drafting and I hope that the Government will look at it very carefully and try to make it easier to understand. My noble friend Lord Selkirk emphasised the need, in a Bill of this sort, for clarity of meaning, and I feel that Part II of this Bill, especially Clause 7, does not live up to that. I am also slightly worried about the principles involved in Part II. Why should willing lessors and lessees not enter into agreement for more than twenty years if they so wish? I used to live in London in a house which had a long lease that expired in 1970. Three or four years before it was due to expire I, somewhat naturally, started to enter into negotiations with the ground landlords to renew 487 the lease. For reasons of their own they were not willing to renew it for more than nineteen years. I was not interested in renewing it because I did not consider that it was worth while spending the capital needed to bring the house up to modern standards when one had only a nineteen year lease. This, it seems to me, is one snag about limiting leases to twenty years.
Another snag is that I believe it is difficult to obtain a loan for improvements if a lease is as short as twenty years. I should like to know whether the Government have considered this point in deciding on the period of twenty years. I appreciate that some limit to long leases is necessary, but I should have thought that forty or fifty years would have been more appropriate than twenty years, and would have safeguarded against the fear—which I do not honestly feel is very great—that people do not realise that their house is only leasehold. After all, as my noble friend Lord Strathclyde said, they presumably have to pay a rent either once a year or every half year, and I should have thought that that would make them fully aware that they do not own the freehold of the house.
I should like to ask my noble friend two questions about this Part of the Bill. The first relates to the position over sporting leases which happen to have a house attached to them. Am I to understand that we can no longer make sporting leases for more than twenty years because there is a lodge attached to the dwelling-house? Occasionally people wish to take some stalking for well over twenty years because they wish to improve the forest, or something like that, and they would like a guaranteed tenancy for more than twenty years. I should like to clear up that point. If they are affected by the twenty-year lease, that is another reason for making the period forty or fifty years rather than twenty. Secondly, does Clause 10 apply to all leases, or just to leases of dwelling houses? If it applies to all leases snags will arise, so far as mineral leases are concerned, under Clause 10.
There is still much to do in tidying up the feudal system in Scotland. One matter I am disappointed to see has not been 488 dealt with in this Bill is compensation for the variation of land conditions. At the moment the position is most unsatisfactory, and gives the superior totally inadequate compensation for a change of use of lands. This was done under the 1970 Act, and I feel that opportunity might have been taken in this Bill to adjust this. After all, the feuar pays for a particular use or uses only, and if he wants to change his use, which is tantamount to acquiring additional proprietary rights, he should pay the current market value of these rights, otherwise he is acquiring something of value at a nominal price which he can immediately dispose of at its current market value. It is a pity that this problem arose when the 1970 Act was passed. We did not realise at the time the effect this would have on compensation for the change of use. I am sure that no Government would have meant it to be so penal to the superior. With these few remarks, I should like to say that I support the Second Reading of this Bill, and especially of Part I.
§ 4.48 p.m.
§ THE EARL OF ELGIN AND KINCARDINE
My Lords, it is a great pleasure to follow the noble Duke. About a month or two ago I followed him rather more physically down Fifth Avenue in New York. On that occasion we were flying a gas balloon as a sort of kite. I dare say that the noble Duke has flown a number of kites to-day, and perhaps I may be allowed to do so this afternoon. First, I must thank the noble Lord, Lord Polwarth, for the admirable way in which this difficult and complicated Bill has been put forward.
In the first clause there is something which touches very deeply and dearly my own heart. The noble Lord, Lord Hughes, asked who was a friendly tenant. Well, they were originally the people who came with my forebears from England. They came up and settled at Loch Maben. They were given land by my Bruce forebears and they and their ancestors and successors have been there ever since. There is something particularly human about the provisions of Clause 1, because we are to be allowed to continue to keep this human relationship between the vassal and his superior. This is immensely important in any dealings that have to do with land where a house, or perhaps a new village or new town is built. As 489 has been said, we have seen this in the past in the new town of Edinburgh, but it certainly has never ceased to be important. It is immensely important that the human relationship at the start of a development be continued.
Here I must declare an interest, in that I am not only a vassal but also a superior. People come to me regularly to find out whether I have a new plan to allow them to live with carefully prepared conditions. Even though they might get a plan through a planning committee, they want something extra so that the amenity of their houses and the amenity of their neighbours will be enhanced as years go by. I am fortunate in that one or two villages in my part of Scotland of which I am the superior have been considered for the operation of conservation orders. Were it not for the fact that I am the complete superior of those villages, I believe that it would be very difficult to make the conservation really firm. It is in that way that something from the past can be made valuable to the future. There is a feature of our feu tenure which, strangely enough, has not been mentioned this afternoon, and that is the fact that in all these charters there are names. Scotsmen all over the world love to know from whence they came. They love to know of their families. Embedded in this ancient feudal system are the names of all the people who have owned land in Scotland ever since the system began, and if you wish you can trace anybody, provided that you know where and when he lived. It is a fund of immense value and it is splendid that it should be continued.
However, I am not so happy about the arrangements for redemption, because one of the problems that faces a superior is the very small sums which have come down to us and which are now in decimalised form. Three hundred years ago, they probably started off as a couple of fat capons or a lippy of oatmeal, but they have now become lop or something of that kind and I do not think it will be easy to calculate that in terms of 2½ per cent. Consols. There is a duty on the Government, at each time of the year that it is permissible to have redemption, to declare the value of the Consols and to prepare a quite simple chart which the vassal could look at it to see what the amount should be. It would then be easy for him to know his obligations without 490 going to either a lawyer or a stockbroker, and in that way both the vassal and the superior would know where they stood. This system has been conducted—perhaps in other ways—in Scotland for many centuries. It is known as "fiars' prices", and they have been struck annually by the sheriffs of counties for many generations.
I should like to ask my noble friend Lord Polwarth a question about the meaning of the word "other" in the description of "feuduty". Among other things, Clause 4(8) states that… any other period of perpetual periodic payment in respect of the tenure or occupation of land".Unfortunately, my forebears took on some 999 year leases and we shall be in a difficult position if they are not included. I shall then not be allowed to have any houses on that land for the remaining period of the leases, which may be something like 830 years. Furthermore, I may not let properties separately. This seems to me most unfortunate and quite wrong and inequitable. I hope that a 999-year lease can be construed as a feudal tenure, or, alternatively, that there can be a little more flexibility in the arrangements for leases, somewhat along the lines which the noble Lord, Lord Strathclyde, and others have suggested. Perhaps 20 years is far too short a time and around 60 years would be much more beneficial.
Something has been said about irritancy, and the strange state of affairs when a feu has not been paid for two years. Unfortunately, from time to time I have had to be an irritant superior. One of the most difficult problems is where there is a small piece of ground in an old village which is quite unless for almost any purpose and which is held under a separate feu. The feuar may have disappeared, and the feuduty may not have been paid for many years, so the ground is an absolute nuisance to the neighbouring proprietors. If a five-year period is allowed in cases such as that, it will become increasingly difficult to discover who is responsible and bring him to book and make him pay the duty, or attend to the feu properly. Though there can be a great deal of worry about irritancy, and though the means of irritating a feu might be used wrongfully, one must think of the neighbours who may 491 be irritated because of the shabby condition of the ground.
Whatever may happen, I hope that the obligations which exist as a result of feu tenure over 900 years will not be forgotten, because the obligation is to Scotland as a whole. The original obligation of a feu was to see that our country was kept properly defended and free from attack, and that obligation is laid upon everyone who takes upon himself the responsibilities of ownership of land in Scotland. If you try to get out of it by one means or another, you are not being honourable or sensible or helpful to our nation.
If anything happens as a result of this discussion and the passing of the Bill, which, in the main, I greatly support, I hope that it will refresh the spirit of those who use the measure that we have been given by our forebears to the very best of their ability, to build up our country honourably, because this great system has stood us so well in the past. There can be no doubt that whatever is done we shall benefit, for there are many people who enjoy the responsibilities of ownership of property under the feu system. They hope that they may hand on those responsibilities so that others are able to live in a well-ordered, happy and profitable society. I, too, hope that this measure will pass, but I also hope that these various problems will be considered by the Government.
§ 4.58 p.m.
§ LORD STRATHSPEY
My Lords, I must apologise for having given your Lordships such late notice of my maiden speech on this Bill that my name does not appear on the list. The fact is that I had not intended to speak on this Scottish legal subject, but when I saw the Bill only yesterday I felt impelled to speak on it and to give it my support. First, I should explain that I had the privilege of serving the War Department as a land agent for some 34 years, some 14 of which I spent in Scotland responsible for their landholdings, from Wigtonshire in the extreme South-West to the Isle of Unst, in the expreme North-East. For those of your Lordships who are not geographers perhaps I should explain that Unst is the most Northerly island of the Shetland group.
492 During this period of service I had, inter alia, to operate, with and without Scottish lawyers, the Scottish land tenure system. I may say without hesitation that I formed a very marked appreciation of the system, and consider it to be (if I may be excused for making a comparison) superior in many ways to the English system, in which I was trained. I have found it so much more definite, clearer and quicker in some ways. Take, for example, the conveyancing of property. I know that this item is not fully covered in this Bill, but perhaps your Lordships will excuse me for mentioning it, as it will serve as an illustration. I am sure many of your Lordships have been aware of the lengthy uncertainties of the English contract stage. In Scotland, this stage is covered by the exchange of formal missives. These can take a few hours only or, at worst, a few days; but when exchanged they are as binding as the English contract, which normally takes weeks or months to conclude. Again, the English contract by no means always indicates all the purchaser's rights, liabilities and burdens on the property. The Scottish missive does; and if it does not, then the seller is liable to the purchaser.
As many of your Lordships have pointed out to-day, the Scottish land tenure system has successfully served for probably a millenium. It is a good system, and is well known and understood by the Scottish people, who are traditionalists. Here, my Lords, I had contemplated using the word "conservative", but I feared that noble Lords on the opposite Benches might have thought I was using the word in its political sense. But because Scots are traditionalists, the average Scotsman, I think, dislikes and fears changes. Nevertheless, few, if any, would fail to agree that in certain ways the present land tenure system needs streamlining and refining to modern requirements—most notably, in my view, on the feuing side. The Bill is, I think, very clever. It is complex because the law is complex in Scotland, but despite this complexity the Bill is of relatively small size. But it makes certain changes as a soft-pedalling, first step towards the modernisation (if I may use that word), of the parts of the land tenure 493 code covered by the Bill without—and I emphasise this—materially changing the system or code.
Yesterday, the Lord Advocate referred to definite restrictions in feu charges and dispositions as applicable to site planning and use of land. These are matters which I feel are best left to the planning authorities in general. May I give your Lordships an illustration of what I mean? The noble Lord, Lord Hughes, in fact touched upon this item in his speech. When we came to dispone some particular land site it was found in the titles that the use of the site was restricted to, let us say, a gunsite or an ordnance depot. Clearly there was no civilian requirement for such uses; and the then current planning use was for, say, residential at high density. One had then to make the best bargain one could with the superior to obtain a relaxation of this prohibitive restriction in order to enable the purchaser of the land, very often a local authority, to develop it. I hope that future enactments (as we have heard to-day there are likely to be) will go further than this Bill presently does and will eliminate to a large degree from titles such major restrictions on use as the one I have described, leaving these planning matters to the planning authorities. After all, if a superior sells his land he sells it, or should do, at the best market value obtainable at the time, and in my view there his interest should end. He marches out of the land and hands it lock, stock and barrel, so to speak, to the new proprietor.
To return to this Bill, I feel that Part I is particularly desirable in that proprietors or vassals, as they are known, will be able to free their properties from feu-duties, except for one penny per annum, and other charges as mentioned in this Bill, if they so desire, and it will prevent the imposition of new feuduties in future titles. I feel that, as other noble Lords have pointed out to-day, such charges are now out of date, and that feuing value is not at all a realistic value to be placed on a property. The realistic value should be contained in the purchase price the vassal has to pay for the dominium utile. I thank your Lordships for listening so patiently to me.
§ 5.8 p.m.
§ LORD POLWARTH
My Lords, I think your Lordships will agree that this has 494 been a very useful and constructive debate, and I am sure that the first thing your Lordships would like me to do is to express our warm congratulations to the noble Lord who has just sat down, Lord Strathspey, on such a very helpful, informed and constructive contribution to our debate. He is known to some of us for his devoted service in the capacity of Land Agent in Scottish Command during that important post-war period. Even if he has waited, according to my work of reference, 25 years to give us the benefit of his wisdom, I am sure we all hope that it will not be another 25 years before he does so again.
I think your Lordships have in general welcomed this measure. It has been interesting to see the sort of love-hate relationship that so many of us have for this feudal system: this "tattered garment" of the noble Lord, Lord Balerno, and this "human relationship" of the noble Earl, Lord Elgin. But I think there has been a general acceptance that the time has come for the abolition of the system in its present form, subject to the finding of a really effective method of maintaining these all-important conditions with regard to the land—and that, my Lords, is firmly our intention, as I said at the beginning. It is indeed this search for the most effective method that has made it impossible for us to come forward with more at this present stage; but that search will continue. As I have said, it is a subject of great complexity; and I was glad that the noble and learned Lord, Lord Kilbrandon, with all his legal wisdom, made that point clear to us.
My Lords, I shall try to answer the principal points raised by noble Lords, but in view of the time and the subsequent business I hope your Lordships will forgive me if in some cases I deal with these points by correspondence, or leave them until we come to them in Committee. I am not myself learned in Scots law, and some of the points are very intricate. I was interested in the suggestion of my noble friend Lord Balerno regarding the presence in this House of a Scottish Law Officer. That is not for me to comment on, but I am quite sure that other holders of my present office would have been very glad, as indeed would I, to have at my right hand, so to speak, somebody learned in the law of Scotland. I can assure my noble friend that I will 495 pass on his suggestion to the proper quarter.
My Lords, the noble Lord, Lord Hughes, gave, I think, a general welcome to the Bill. The first of his main points concerned the form of discharge on redemption of a feuduty. This was raised by the noble Lord, Lord Balerno, and the noble Duke, the Duke of Atholl. We have looked at this point very hard and we realise there is justice here. Accordingly, we intend to move an Amendment at Committee stage to make it possible for a simple form of receipt to be used —and indeed that it should be used in every case—though with the option for a formal document if either party should want one. It is therefore proposed that we should move an Amendment to that effect. A simple form of receipt should not require legal expertise with the consequent expense.
§ LORD HUGHES
My Lords, I take it that if either party elects to have the more formal document, the cost will be borne by the party seeking the more formal document.
§ LORD POLWARTH
Yes, my Lords, that is indeed the case; the one who asks for it will have to pay for it. The noble Lord then referred, as did a number of other noble Lords, to the question raised by the Church of Scotland in particular of making redemption obligatory on the first sale after this legislation comes in. The noble Lord quoted Winston Churchill in this respect regarding lawyers and problems. I can only say that I am not qualified to explain the difficulties of bringing this in at this stage. One can see the merits of such a procedure and we are still most interested in it, but I am assured that to attempt to introduce that provision at this stages in the Bill, involving extremely complicated drafting, is not possible. I can do no more than give that assurance having pressed our legal friends upon it. I think it would be more proper and logical that this should be tackled in the context of the next stage of legislation. I can assure your Lordships that we intend to bring it in though I do not know whether it will be within the three years. I hope, therefore, that pressure will not be used to try to get this provision into this Bill as it will entail considerable complication.
496 There is then the point which the noble Lord mentioned about burgh and Parliamentary Churches—a somewhat obscure subject. If I took him aright he expressed a contrary view on this to the view of at least one other noble Lord (I think the noble Lord, Lord Balerno) regarding this right of pre-emption of these properties. I can only say that this question of rights of pre-emption is only one aspect of the problem of land conditions generally, and again we do not feel it right to deal with this particular one, relating to these rather peculiar churches, in isolation. Clearly, any proposals would affect the interests of local authorities, too. I believe that so far there has not been any consultation with them, so I think that the whole question of these rights should not be tackled at this time. We shall see what should be done in the future.
The noble Earl, Lord Selkirk, whose experience in Scots law we all greatly value, said that he thinks the system should have been done away with 150 years ago.
§ LORD POLWARTH
I should have been sorry if it had been done away with 150 years ago, because that would have antedated the creation of my feu charter by one year and we should not have had the conditions which have done so much to preserve the property. However, I am sure he is right and I think the great thing about this is that there must be a continuing process of change in relation to the law of land tenure. The noble Earl spoke of the need for simpler methods of transfer of land. This is something of which we are very conscious and have in mind; but again we do not think this is appropriate for this Bill.
The noble Earl raised one or two specific points. He asked whether, if a proprietor has redeemed his feuduty, can an over-superior call on him to redeem the over-feuduty too? The answer, my Lords, is, no. The receipt which the proprietor will receive for the initial redemption money will be binding on all parties having an interest in the land, so he cannot be pursued for that. The noble Lord also asked who will enforce conditions in future when the 497 superiors no longer exist. This is a matter for further consideration. That is the main reason why we are clearing up the reform in two stages, as I said earlier. The Green Paper did canvass the possibility that powers of enforcement might be given to neighbouring proprietors. This is only one thought, and it has some support. As to his "kindly tenancies", I think the kindliness was more on the part of the landlord than the tenant. The answer is that they are not affected.
The noble Earl, Lord Cromartie, suggested that the abolition of feuduty would increase the price of new houses. From all our inquiries this is doubtful to-day though it may have been true in the past. The evidence that we have suggests that the vendor of a new house now, usually the developer, charges the full going rate for the house and the land, and the feuduty is just a little extra stuck on top. That is certainly the impression we have to-day, so I am doubtful about it increasing the initial price of houses.
The noble Lord, Lord Strathclyde, I think fully appreciated that we must have time to get the best answers to all these questions. He raised in particular the question of long leasehold, the possibility of life tenancies, which exercised a number of others among your Lordships, particularly for people such as old retainers and for members of a family. I know that my right honourable and learned friend the Lord Advocate is writing to him on this subject and will give him rather more detail than I can. There are some problems in relation to this and there are considerable difficulties in drafting an exception for these particular classes that would not create loopholes and nullify the general intention of the Bill. The 20-year period is a fairly long one for which to grant a lease, and there is nothing to prevent the voluntary renewal after that time. I would suggest that the noble Lord might await the letter to which I have referred, and then if he wishes he can put down an Amendment.
My Lords, I know that some doubts were expressed about the abolition of the right to create long leaseholds. I will not go over that point again because I covered it at the beginning. There is 498 no doubt that while the practice is common and understood and accepted in England, it is not common or widely understood in Scotland. We have been fortunate to have avoided the feu system, and I believe we are right, in the general interests of all concerned, to avoid its proliferation.
The noble Lord, Lord Balerno, spoke of the millstone round the neck of the Church of Scotland in having a continuance of these small feuduties and not being able to get them redeemed on the first sale. My Lords, this is not in perpetuity. This is one of the matters being looked at for the next stage of reform, and we shall bear very much in mind what has been said. One other point that was raised by the noble Lord, Lord Balerno, was: why not pass over the right to enforce land conditions to the local authority? When we talked to the local authorities about this they made it very clear that they did not want this responsibility. It would be very difficult for planning authorities to regulate matters in such detail as they are by the present system.
The noble Duke, the Duke of Atholl, raised a number of specific points. In particular, he referred to the incomprehensibility of one clause of the Bill. I would only say again that the legal jargon is something which I am not qualified to speak on and I am sure it would be necessary to make it relate to other measures concerning land. The noble Duke asked about sporting leases and whether it would be all right to create longer leases, including the lodge, for 20 years. I am informed that it would qualify as ancillary residential use and therefore it would be possible. I am also informed that Clause 10 does not apply to mineral leases; in fact, it does not apply to leases at all.
The noble Earl, Lord Elgin and Kincardine, felt that the formula for redemption was unduly complicated. I do not think that is so. The price of 2½ per cent. Consols is easily ascertained. It gives a perpetual yield and I should have thought was a fair basis, adapting itself to the conditions at any moment. The full details will be published in the leaflet that I have said we will issue explaining how the Bill will operate, and I do not think the noble Earl should fear on that account. I am bound to say that 499 while I find it difficult enough to see him as an "irritant superior" as he described himself, after the very non-irritant speech that he made, showing a great interest in and understanding of the system, I think I must say that if all superiors had shown such a responsible attitude to their responsibilities perhaps we should not have found ourselves so much in need of a reform to-day. If there are other points which the noble Earl made I would beg his leave to deal with them by correspondence.
That said, I am extremely grateful to your Lordships for your general welcome to the Bill and for some constructive suggestions, and I hope that your Lordships will now give the Bill a Second Reading.
§ LORD HUGHES
My Lords, before the noble Lord concludes, and on the basis that silence is sometimes meant to convey consent, I would wish to say that I am afraid that I must agree with the noble Earl, Lord Cromartie, in relation to the effect that this may have on the price of houses. Many builders anticipating this sort of thing—I myself have done it—have been granting feus with a nominal feuduty and receiving the value of the land in the price at which the house was sold. In his first speech the noble Lord, Lord Polwarth, referred to the creation over recent years of feus of £30 or £35 on top of the grassum which was being taken for the land. Those builders who have been doing that will not suddenly become philanthropists. When they start to sell, in addition to the grassum they are getting at present, they will take eight years of purchase added to the price; and if they have been selling a house with a feuduty of £30 they will stick £240 or £250 on the next selling price of the house. I think that the noble Lord, Lord Polwarth, is being misled by his advisers if he thinks that those builders—and there are some in Scotland—who have been seeking to get the best of both worlds will suddenly find themselves wearing a halo, because they will not.
§ LORD POLWARTH
My Lords, I think that we must respect the views of the noble Lord, Lord Hughes, with his experience in this matter. There is room for two views on this matter. We will 500 watch it closely, but of course the real remedy is to keep down the price of houses by increasing the supply.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.