Clause 25. — (Construction, citation and application of Part I.)

Orders of the Day — Agriculture (Scotland) Bill – in the House of Commons at 12:00 am on 1 July 1948.

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Lords Amendment: In page 23, line 21, at end, insert: (3) The provisions of this Part of this Act shall not apply to any holding to which the provisions of the Small Landholders (Scotland) Acts, 1886 to 1931, apply.

Mr. Fraser:

I beg to move, "That this House doth disagree with the Lords in the said Amendment."

The Government regard this Amendment as being both unnecessary and undesirable. The application of Part I of the Bill, which must be read as part of the Agricultural Holdings Acts, is defined in those Acts, as amended by the Ninth Schedule of the Bill. Those Acts, as amended by the Bill, apply generally only to agricultural land held under a lease. Landholders' holdings are not held under a lease but under statutory tenure. Further definition of the scope of Part I is, therefore, unnecessary, and I ask the House to reject the Amendment.

Photo of Mr James Reid Mr James Reid , Glasgow Hillhead

I am a little surprised that the hon. Gentleman has sought to disagree with this Amendment, and I am still more surprised that he has not told us in greater detail why he takes that view. I will try to put the points which occur to me, and no doubt the Lord Advocate will deal with them. The hon. Gentleman referred to the definition of a holding. It might be as well that I should deal with what seem to be the points so that the Lord Advocate may inform me if I have left anything out. At the moment, until this Bill becomes law, a holding is defined as any piece of land agricultural or pastural held under a lease. In page 85 of this Bill the word "holding" is redefined, but the definition does not seem to be substantially altered. The word "holding" will now mean: … the aggregate of the agricultural land, as defined in Part VII of the Agriculture (Scotland) Act, 1948, comprised in a lease. In page 64 of the Bill it is stated: 'agricultural land' means land used for agriculture which is so used for the purpose of a trade or business … It may be that some smallholders do not use their land for the purpose of a trade or business, but certainly a great many do. It is their business to make a livelihood off their holdings and, therefore, they are not excluded by that definition.

Then the Joint Under-Secretary tells us, "No smallholder holds under a lease." That is quite definitely not so, because there is a class of statutory small tenants and though it is a diminishing class it would be news to me to be told that there are none of them left in the country. The Small Landholders Act makes clear the right of a statutory small tenant to get a renewal of his lease. I do not think that the Lord Advocate will tell us that there is any possible way of holding that a statutory small tenant does not hold under a lease. So far as he is concerned, unless this Amendment is accepted, he will be comprised under Part I of this Bill, as I see it. I do not want to be too dogmatic on this question because the matter is extremely complicated. Although once I knew a fair amount about this department of the law, I do not profess to have the details at my finger tips. I have looked up the matter in the time available, and I cannot see any answer to the point that statutory small tenants are undoubtedly comprised within Part I of this Bill unless they are excluded, and I understand that the intention of the Government is to exclude them. I agree that they are a small class. Most smallholders are landholders.

As I understand the position, landholders are in one or other of two positions. They may have been put on the land under the terms of a scheme, and, probably, there is then no contract, and never was a contract between the landholder and his landlord, and there never was a lease. It may be that landholders in that position are not holding under a lease, but under a scheme settled by the Land Court, and, therefore, it might be that they are not under Part I of this Bill, but even these people pay a rent. Normally, one takes the view that, if one pays rent, one does so because one holds under a lease, not necessarily a lease under the traditional Scottish Law form of lease. A lease is the tenure under which any tenant holds of his landlord, and, accordingly, I have some doubts in feeling certain that, even in a case where the landholder never had a lease from his landlord in the ordinary accepted sense, Part I does not apply to him.

5.30 p.m.

There is, however, another very extensive class of landholder. There are the landholders who held under a common law lease, or whose ancestors did and they themselves inherited it, and I should have thought it was at least arguable that what the Landholders Act did was not to bring that lease to an end suddenly on the passing of that Act, but to engraft on it certain statutory provisions and rights somewhat analogous to the case of the Rent Restriction Acts. The tenant under the Rent Restriction Acts has very much more extensive and valuable rights than the tenant under the common law. Nobody can suppose that the effect of these Acts was to supersede his lease by some entirely new form of tenure. That was not so, and, although I confess I have not studied it line by line since this matter came up, I do not find anything in the Small Landholders Act to support that, and I should be interested to hear from the Lord Advocate what Section of the Small Landholders Act resulted in the previously existing leases of people who came under that Act being suddenly brought to an end, because that must be the case on which this new Subsection is thought to be unnecessary.

I cannot remember any commentator on that Act ever having drawn attention to the fact that that Act brought all previous leases to an end, and I should have thought that it was rather more in accordance with ordinary principles of interpretation to hold that the leases of the people then occupying as tenants small areas of agricultural land in Scotland were continued, but subject to the rights engrafted on to their tenure by the Small Landholders Act. If there is any doubt about it, why could not that doubt be resolved?

It is not enough for the Lord Advocate to say "In my opinion, there is little doubt about it." I think what he has to say, before he asks us to reject this Amendment, is this: "It is as clear as daylight that this is unnecessary, and no practitioner in Scotland and no court could possibly hold the contrary." Unless he can go as far as that, what objection could there be to putting into the Bill two or three lines of print to make the matter clear beyond a doubt? I did not understand from anything which the Under-Secretary has said that putting in these words would do any harm. All the hon. Gentleman said was that they are unnecessary.

Photo of Mr James Reid Mr James Reid , Glasgow Hillhead

The hon. Gentleman said they were undesirable, but he did not tell us why, although I know that anything which is unnecessary is undesirable. They can only be undesirable because they throw some other part of the law into doubt. I think I can leave out the Crofters' Acts, which may raise certain other points, because I am not so familiar with them and they applied only td a part of Scotland. I would prefer to base my argument on those people brought in in 1911 for the first time—the small landholders in those parts of Scotland to which the old Crofters' Acts did not apply. It is perfectly true that, so far as any of us know, none of these people since 1911 have ever appealed to the Agricultural Holdings Act for any benefit to themselves. No doubt, it may be suggested that, because of that, the Agricultural Holdings Act was generally recognised as not applying to them.

I do not believe that is the explanation at all, because there was such a disparity after 1911 between the rights open to a small landholder and the rights open to any ordinary agricultural tenant, that it would never have been any good, so far as I can see, for a small landholder to appeal to the Agricultural Holdings Acts, because he would not have got any more out of it than he was already getting under the Small Landholders Act. Therefore, I think there is at least a case for saying that, throughout that period, the small landholder could have appealed to the Agricultural Holdings Act if he had chosen, but that it would never be worth his while to do so. Now, of course, the case is very different, because there may be instances in which, if Part I of this Bill applies to small landholders, it would be very much in the interests of the small landholder to appeal to Part I of this Bill.

Let me indicate a course which he may take, and I am sure there are others. Under the Small Landholders Act, a man can only bequeath his holding to a member of his own family in the widest sense; that is, to a person who could succeed on intestacy. The small landholder may frequently wish to bequeath his holding to someone other than a member of his family, and, if Part I of this Bill applies and if the other Agricultural Holdings Acts also apply, it becomes of some value to the small landholder to bequeath his holding to somebody outside his family. Before security was given by Part I of this Bill, that right never had any value, because all the new legatee would become would be a tenant from year to year, outside the protection of the Small Landholders Act; he could have been turned out the next year, and so it would never have been worth his while to do that.

If the provisions of the Agricultural Holdings Acts with regard to bequests apply to landholders, there is great security of tenure now given to the ordinary agricultural tenant under Part I of this Bill, and it will be worth the while of the landholder, and certainly of the statutory small tenant, to bequeath his holding as an ordinary common law tenancy to, let us say, some friend of his who was not a relative, or to some relative on the maternal side who could not succeed on intestacy.

I am sure this is of great importance to many people in the Highlands, and it is highly desirable that it should be made quite clear. I ask the right hon. and learned Gentleman to deal with the point. Let us suppose that we have a person who was an ordinary common law tenant of his small holding in 1911 who came under the protection of the statutory code for the first time in 1911, and who dies after this Bill has become law. Is the right hon. and learned Gentleman quite satisfied that the 1911 Act completely abolished his previous year to year tenancy under the statutory code, and that his successor cannot now say "That landholder has held throughout under a tenancy, fortified no doubt by the Small Landholders Acts; that tenancy is still there; the landholder has chosen to bequeath it to me; I am not a member of his family, but I am entitled to the rights under the Agricultural Holdings Act"? That is a very practical point, and, as far as I understand the law at the moment, I do not think that I would advise anybody that there was no case at all for that legatee. I should have some difficulty in giving that advice. I might well be wrong, and, having studied the matter further, I might say "The matter is doubtful, I really do not quite know; I think, on the whole, perhaps you are not entitled." But I think I should have to say, "There is a chance that you are entitled." If that is so, there would have to be expensive litigation, going to the Court of Session, and all the rest of it. We avoid all that by putting these three lines into the Bill.

My next point arises on Clauses 13 and 14. Suppose there is a case where some small landholder, or a statutory small tenant, applies under Clause 14; let us say a statutory small tenant at the end of his lease. I do not know that the 1911 Act ever said that if a statutory small tenant fails to make the statutory application for renewal of his lease, he thereupon ceases to have any right to occupy. Indeed, if the right hon. and learned Gentleman looks up a somewhat debatable case which was decided in 1913, I think he will find that the Court of Session took the view that a statutory small tenant was perfectly entitled to continue occupying, although he had not in fact asked for a renewal of his statutory tenancy. I think I am right about that; but, in any case, the matter is very obscure.

What would happen? He would come forward and would say, under Clause 14, "I want a new lease," and he would thereby bring into operation Clause 13. Under Clause 13 there are extensive provisions under which a landlord is bound to put everything in order. Even if that does not apply, in every case thereafter the landlord is bound to keep the equipment in order. Of course that is wholly at variance with the whole conception of the Small Landholders Acts, and I can see a good deal of doubt arising. What the true view may be, I am by no means too sure, but I can see a good deal of room for legal argument and disputation.

I do not want to prolong this discussion. I have put at least two of the points which seemed to me to give rise to difficulty. I will sum up in this way. First, are there still such people as statutory small tenants in existence? Secondly, if there are, how can it be said that the definition of "holding" under this Bill does not apply to them? Thirdly, is the Lord Advocate quite satisfied that a person who held under an ordinary tenancy in 1911 and was drawn into the ambit of the 1911 Act, ceased from the passing of that Act to have any tenancy under a lease at all? I do not think "lease" is defined in any of this range of legislation, and I think it must, therefore, have a very wide meaning. I ask the Lord Advocate on what grounds he holds that no small landholder can possibly be the tenant under a lease.

The Lord Advocate may have conclusive answers to these questions. If he has, we shall be convinoed that the Amendment is unnecessary, but I have not heard those answers given by anybody. I have not been able to discover them by my own researches, and there is a good deal of doubt about this in many quarters. I should have thought that the wise thing to do, even if one were of the opinion that the matter is pretty clear, would be to make it clear beyond doubt by putting these words into the Bill. Finally, I ask the Lord Advocate in what respect would it be undesirable to put these words into the Bill? Upon what other rights would they throw doubt? Whom would those words embarrass? Unless he can tell us either that they would embarrass somebody or that they would throw doubt on some other rights, I cannot see why it is undesirable to adopt the Amendment.

5.45 p.m.

This has been subject to a good deal of discussion. I am bound to plead guilty to this extent, that thinking of other matters it certainly did not occur to me in the course of the Committee stage that this point would arise. I plead guilty and acknowledge that it would have been much better if the point had occurred to me or to someone so that we could have had the matter cleared up in the Committee stage. It just shows that even a full examination—which I must agree this Bill has received—does not always bring out all the possible points. This point has been raised at a rather late stage, in circumstances which made it difficult perhaps to give a full explanation, but this is not the first time it has come up, and we have not yet had any statement of a technical character to show why this Amendment is unnecessary or how the matter is free beyond the possibility of a doubt. I appeal to the right hon. and learned Gentleman to accept these words in order that there may not be doubt, false hopes and expensive litigation in Scotland. I gravely fear that these things will happen unless the matter is made perfectly clear.

Photo of Mr William Snadden Mr William Snadden , Kinross and Western

I do not intend to detain the Committee for more than a few minutes on this rather complicated legal point. Like my right hon. and learned Friend the Member for Hillhead (Mr. J. S. C. Reid), I feel a little guilty that at an earlier stage we did not go into this matter more thoroughly. I must confess that I thought when we were considering the Bill in its early stages that the Crofters Act of 1866 and the separate code that applies to small landholders covered the case of the crofters, and for that reason I assumed that this Bill would not apply to those holdings. Since then we have had a long discussion in another place, and one or two tricky points have been raised by my right hon. and learned Friend.

I shall not attempt to say much on the legal aspect. I would only make a broad point from the point of view of the practical person who has to administer and who comes under this very important Bill. I think we must try, as they have tried in another place in sending this Amendment to us, to make this Bill as clear as possible, and we must, therefore, assume that it will be read not only by farmers all over the country but also by crofters. If there is any doubt about the application of Part I to the statutory small landholders, surely that doubt should be removed at this stage. I should like to reinforce what my right hon. and learned Friend has said, to this extent that I Think the Lord Advocate should tell us now the reasons for rejecting this Amendment.

I can only think that if the Government take the view—and I am sure they do take the view—that Part I of the Bill is not to apply to the crofters, there must be some very good reason for not putting into the Bill something which would wipe out all doubts in the minds of the people who are to come under it. What it is I do not know. I can only assume that possibly in some previous legislation some benefits have been conferred upon the small land-holders, and it may be, for all I know, that by inserting these words in the Bill something might be lost in that respect. If that is the reason I hope the Lord Advocate will give a full reply and show why it is impossible for the Government to put these words in the Bill to make the Act crystal clear to all the people who have to come under it.

Photo of Mr Malcolm Macmillan Mr Malcolm Macmillan , Na h-Eileanan an Iar

I see that the Lord Advocate is getting his notes ready for reply and I do not wish to detain the House long, but I am anxious to find out where the crofters stand under Part I of this Bill. The right hon. and learned Member for Glasgow Hillhead (Mr. J. S. C. Reid) mentioned some doubtful cases, one or two of which would cause some anxiety in the North. As I understand it, a crofter is still fully covered under the Act of 1886 as a statutory tenant in perpetuity and can bequeath and can also assign to people other than members of his own family if he wishes to do so. I should like to know whether he is affected at all by the provisions of this Bill in respect of his rights under the 1886 Act. It appears that all the purposes of this Bill are fairly covered under the 1886 Act so far as the crofters' land and rights are concerned. I believe the crofter under the 1886 Act retains all his rights and tenure security as a tenant if he cultivates the land and shows reasonably good husbandry. The tenancy of the land, of course, in that case would still be able to pass in perpetuity, according to his free wish and subject to existing and well known limitations.

Photo of Mr James Reid Mr James Reid , Glasgow Hillhead

In order to remain a landholder one has to reside within two miles of the holding and a case will, therefore, arise where someone goes more than two miles away and claims to be an ordinary tenant. That is another problem.

Photo of Mr Malcolm Macmillan Mr Malcolm Macmillan , Na h-Eileanan an Iar

There is a certain laxity in the application of the law, and I know of crofters and people who are statutory tenants by law who write to me from as far away as New Zealand and Kentucky, but who are the sons in the family to whom the land falls when the father or mother or the tenant next-of-kin or previous in succession dies. Some may have lived in Australia and New Zealand all their days. Somebody may be a sub-tenant, cultivating the land to satisfy the conditions of the Act of 1886, but the legal tenant in these cases is thousands of miles way and certainly not within the two miles.

Owing to the laxity of the application of the 1886 Act protection is perhaps even too generous in cases to the tenant, because in such cases he is doing nothing whatever to cultivate the land. He lays claim to it and the person who is cultivating the land in his absence—it may be a member of his own family, a brother or a sister—has no statutory claim to the land, although he is doing all the work in developing it. It is quite common, as the right hon. and learned Gentleman says, under the 1886 Act, for a crofter to sign away the tenancy to a person right outside his own family. He has that freedom. In many cases it is desirable to do so rather than to treat as necessarily the most desirable person to be next in succession somebody closely related, but living in New Zealand or Kentucky who has no intention of residing within two miles of the land or of engaging in agriculture.

But we must consider here what we are being asked to approve finally in the Bill. On my layman's reading, I do not think the crofters are disturbed in any of their rights or obligations under the 1886 Act by reason of this Bill, but are we to rely on the omission of any specific reference to their exclusion as being confirmation of the crofters' position under the 1886 Act? Are we to rely on the omission of any specific mention from the Provisions under Part I of the Act as a guarantee that he will not be disturbed in any of his existing rights?

I should like to be much clearer on the point than I am at the moment. There may be a danger of a little too much prejudice because of the origin of this particular Amendment. Let us guard against that for the purposes of this particular discussion. We might unwittingly be doing an injustice—not a conscious injustice by the Lord Advocate or those handling the technicalities of the Bill—and lending ourselves to an injustice which might in administration subsequently arise. It would I know be quite unwittingly; I am not suggesting for one moment it would be contemplated or deliberate, but it could possibly arise. I do not like to feel that we are relying on the omission of a specific reference to the exclusion of the crofters as a guarantee that we are not depriving them of any of their rights under the 1886 Act. I should like clarification on that point.

Photo of Major Sir Duncan McCallum Major Sir Duncan McCallum , Argyll

I rise to put a point very briefly about the position under Part I of this Bill, of the crofter and the statutory smallholder. I share a certain anxiety which the hon. Member for the Western Isles (Mr. M. MacMillan) brought out very clearly, I think. In his interjection early in the speech of the right hon. and learned Gentleman the Member for Hillhead (Mr. J. S. C. Reid), the Lord Advocate said it would be undesirable to insert this Amendment into the Bill. I wonder if he can make it quite clear—and I am talking more about the crofter than the statutory smallholder—why it should be undesirable to put it down in black and white that this provision does not apply to them. During the earlier passage of this Bill through this House, and during discussions with farming organisations, I always understood that it would not apply to them, but I feel it would clarify the position to put it down in the Bill. I should like to ask the Lord Advocate if he can give that explanation.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

My hon. Friend the Under-Secretary, when explaining the reason for our opposition to this Amendment, explained that the Amendment was in his opinion unnecessary and undesirable. Perhaps I may first deal with the question of undesirability. I should point out that for a number of years there has existed side by side in Scotland two separate codes—the Agricultural Holdings (Scotland) Act code and the Small Landholders (Scotland) Acts code. No confusion has ever arisen in the minds of any of the persons dealing with either of those codes as to the dividing line between one and the other. There has been no confusion either for the landholder himself or the lawyer who had to deal with it or even for the Land Court. The distinctions between these two codes are quite clearly marked and defined. Matters such as security of tenure, the method of fixing rents, requirements as to residence, cultivation of holdings, rights of succession, rights of compensation and improvements, are all matters quite clearly defined as between the different types of holding.

May I remind hon. Members and particularly, perhaps, the right hon. and learned Member for Hillhead (Mr. J. S. C. Reid) that in the Small Landholders Acts there have been incorporated from time to time provisions of the Agricultural Holdings Act, so that these provisions are incorporated into the other code out of the Agricultural Holdings Act code. From the point of view of its being undesirable I would first stress the point that if this Amendment were accepted it would throw great legal doubt on the question whether it did not also repeal those provisions of the Agricultural Holdings Acts which have been incorporated in the Small Landholders Acts.

6.0 p.m.

Photo of Mr James Reid Mr James Reid , Glasgow Hillhead

If all we say is that this part of this Act shall not apply, that does not prevent the remaining parts of the other Acts from applying, surely?

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

This part of the Bill has to be read as one with all the other Agricultural Holdings Acts to which reference is made in Clause 25. The incorporation into the other code of various provisions of the Agricultural Holdings Acts means, I think the right hon. and learned Gentleman will agree, that, under the Interpretation Act, they must be read in future as embracing all the Agricultural Holdings Acts in existence. That being so confusion would certainly be created if this Amendment were accepted, and doubt would also arise as to whether or not this inevitably meant that, in so far as the provisions of this part of the Bill have now to be read as part of the agricultural holdings code, those parts of the agricultural holdings code which have been already incorporated into the other code, were automatically repealed. For that reason, and that reason alone, it would be very undesirable to accept this Amendment.

But, of course, there are other reasons. The right hon. Gentleman referred to the definition of "holding" as it now exists by virtue of this Bill. The expression "holding" now is defined as "agricultural land held in aggregate comprised in a lease." Therefore, the whole basis of the applicability of this Bill is, that it applies to land comprised in a lease; the justification for applying the Bill is that the land is held by the tenant by virtue of a lease. The fundamental distinction between land to which this Bill applies and land to which the Small Landholders Acts apply is, that the basic qualification under the Small Landholders Acts is not the lease at all, but the statutory form of tenure which is authorised by those Acts.

I should like to develop that, because since the qualification under this Bill is land comprised in a lease, and lease is defined under the 1923 Act as a "letting of or agreement for letting land for a term of years or for lives or for lives and years or from year to year," that is the criterion as to whether or not a particular holding falls within these Acts or not. But when we come to the Small Landholders Acts we find that what gives the effect of these Acts is not the holding under a lease but the fact that a person is registered in respect of that holding, and that it so becomes a registered holding; and the benefits of the Acts are attracted to that holding by virtue of that registration. Accordingly, it is from the registration under the Small Landholders Acts that the rights flow so far as those particular holdings are concerned; whereas it is by virtue of the lease the rights flow so far as the Agricultural Holdings Acts are concerned. There we have the funamental distinction.

We find that under Section 2 (2) of the 1911 Act the qualified class of lease holders become landholders within the meaning of that Act. Accordingly, they hold and benefit not by virtue of their lease but by the statutory terms of the Act, and that applies, not only to leaseholders existing as at 1911, but to all other landholders who wanted to come within the Act and for whom provision is made in registration. It is that fundamental distinction which entitles us to say that landholders under the Small Landholders Acts are not people to whom the Agricultural Holdings Acts apply directly. The Agricultural Holdings Acts apply only to the small landholders by virtue of the indirect incorporation of parts of the Agricultural Holdings Acts into the Small Landholders Acts, and when a person has been registered as a small landholder—or, rather, the holding has been registered as a small landholding—under the Acts, it is the provisions of those Acts which govern the treatment of that particular holding.

In these circumstances it seems to me, perhaps, too clear—because if anything seems too clear one begins to wonder if one has hold of the right end of the stick or not—that that is the justification for the long-time recognition of the distinction between the two codes: that one is based on leases, and the other is based on registration; and a holding which gets the benefit of the Small Landholders Acts by virtue of being registered is divorced, to that extent, from the Agricultural Holdings Acts. It does, however, enjoy some of the benefits of the Agricultural Holdings Acts because by various Statutes certain of the provisions of the Agricultural Holdings Acts have been incorporated into the Small Landholders Acts. If the holding is registered under the Small Landholders Acts the small landholder is bound by the provisions of those Acts. He cannot say, "I want to make the best of both worlds." I think that, to a certain extent, answers one of the points raised by the right hon. and learned Gentleman.

As to the question, "Are there still statutory small tenants in existence?" I say that the answer is, "Yes." Since, however, the number cannot be increased it will be appreciated that they are a diminishing number. I revert to the point that if a person has become a statutory landholder, then his lease has been converted into a statutory qualification; and it is the statutory qualification which is the basis of his right to the protection of the Small Landholders Acts.

I was asked about the position of the small landholder who leaves his holding and goes out with the two mile limit. He may go three miles, and become a bona fide traveller on a Sunday. He may go to New Zealand, Australia, or some other parts of the world mentioned by my hon. Friend the Member for the Western Isles (Mr. M. MacMillan) as the places in which his friends land. What is the position of such a one? It is this. It is the holding which still remains a smallholding under the Acts. If it becomes vacant it cannot be let otherwise than by consent of the Department of Agriculture or, failing that, the Land Court. Accordingly, we cannot cease to qualify a particular holding as a landholding merely because the occupant of that holding goes outwith the two miles' limit. Therefore, I do not think that the particular difficulty adumbrated by the right hon. and learned Gentleman applies in this particular case.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

Supposing the occupier of one of these holdings goes to New Zealand and dies there. Can he leave that holding to someone, else? Supposing it is taken over by the Land Board in the meanwhile or that they have reached a decision on this matter, as the Lord Advocate has just said, and they give that decision without the person to whom it is left knowing that? Supposing it gets let to someone else, and he comes back to this country. What is the position? Is he entitled to the occupation of the holding, and how does he proceed if he is entitled to that occupation to get the possible present sitting tenant out?

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

It sounds like a guid ganging plea.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

If the hon. Gentleman wishes to interfere in Scottish affairs, he ought to learn the Scottish dictionary. The position is that his holding remains a statutory holding under the Small Landholders Acts until such time, either by the operation of law or otherwise through the consent of the Department of Agriculture, it is transferred to another person, who will be registered again as the landholder in respect of that holding; but if the landholder left and went elsewhere, the question as to whether or not he had lost his right to that holding would be a matter of determination eventually by the Land Court. If they decided that he had lost his rights, and the rights went elsewhere, and he tried to bequeath the land and rights which the law said no longer existed, I do not think that any real difficulty would arise. In those circumstances, I think that many of the points posed by the right hon. and learned Member for Hillhead disappear.

If we look at this from the point of view that under the small landholders code there are certain provisions made regarding the disposal of the land, the right of bequeathing it and various other things, attach to that holding so long as it remains a smallholding within the Small Landholders Acts. If the holding does not fall within that category but would satisfy the definition of agricultural land under this Bill or the existing Acts, then the provisions of the Agricultural Holdings Acts would be attracted to that holding.

To sum up, I would submit to the House that in the first place by virtue of the different definitions, and by virtue of the different manner under which the holdings attract the attention of the respective codes, it would be unnecessary for us to incorporate this Amendment in the Bill, particularly if I may make reference to one typical example. Under Section 32 (5) of the 1911 Small Landholders (Scotland) Act it is provided that— Except so far as varied by this Section, the Agricultural Holdings (Scotland) Acts, 1908 and 1910, shall apply in the case of the tenancy of a statutory small tenant in the same manner as if the tenancy were a lease. That conclusively indicates the recognition by statute of the different basis of the two holdings. But the 1908 and 1910 Acts have been caught up by the 1923 Act and now form part of a uniform code which we read together when construing those Acts.

Photo of Mr James Reid Mr James Reid , Glasgow Hillhead

Is the Lord Advocate prepared to admit that Part I of this Bil will necessarily apply to all statutory small tenants, contrary to the intentions of the Government?

6.15 p.m.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

I am saying that in so far as the existing law for statutory smalholdings has incorporated as part of their code the Agricultural Holdings Acts we intend to leave that untouched, and if we accepted the Amendment which was passed in another place it would undoubtedly lead at least to confusion as to whether that did not automatically repeal the provisions of the Agricultural Holdings Acts which by statute had been incorporated into the other Code. That is a possibility which we do not wish to arise, and we feel that by leaving out this Amendment we leave the law not in any doubt but in a much clearer position than it would have been in, even if the Amendment had been accepted, and in exactly the same position with regard to smallholdings as it was in the past. In those circumstances, I urge the House most respectfully to disagree with the Amendment that has been passed in another place.

Photo of Mr James Milner Mr James Milner , Leeds South East

I think the hon. Gentleman has already spoken once.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

I only asked a question.

Photo of Mr James Milner Mr James Milner , Leeds South East

The hon. Member asked what seemed to be a very long question.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

I only asked a question, and I have not spoken on this Amendment at all. I am in considerable difficulty about this Amendment to know precisely what I am to do. Only the other day, I was reprimanded by the Financial Secretary to the Treasury for not knowing all about this Bill, and now the Lord Advocate seemed to resent my asking him a question while he was speaking, although he very courteously gave way.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

I did not in any way resent the hon. Gentleman asking a question. I merely suggested that it was unfortunate that he did not understand the Scottish lexicon.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

That is why I hoped that he would explain it, and why I was disappointed that his explanation did not seem to mean very much. Perhaps I may remind him, if he knows all about Scottish law, that I have been able to amend Scottish law in the Scottish Committee long before he was in the House. If he wants to know more about that, I will give him a little knowledge of Scottish law afterwards, although my knowledge is not very deep. I see the Secretary of State for Scotland sitting there. He is clear and he could quite easily, as we know from experience, get up and enable us ordinary laymen sitting in different parts of the House to understand the answers to two or three simple questions about this Amendment. I am afraid that we no longer have the pleasure or possibility for the moment, of having any help from the previous Secretary of State for Scotland.

The first point I want to know about this Amendment concerns the assurance by the Lord Advocate that it is not necessary. He seemed to me to give quite a number of reasons why it was not necessary, and also rather contradictory

reasons. Cannot the Secretary of State for Scotland tell me quite clearly and precisely why this Amendment is not necessary, and can he also tell me precisely who would be injured by the Amendment and how it is going to injure them. I cannot for the life of me see how simple words such as are in this Amendment, which would seem to me to be making quite certain that something is not done to the small landholders which my right hon. and learned Friend the Member for Hillhead (Mr. Reid) explained with great clarity, will make their position less certain.

From the opening remarks of the Joint Under-Secretary today, it rather appeared that he had not at the back of his mind those fighting resources which would have enabled him really to believe in his opposition to this Amendment. For that reason, I wonder whether I could have an answer to those two or three questions? If so, I am sure it would be very welcome, not only to hon. Members on this side of the House but to hon. Members opposite, because there was in the mind of the hon. Member for the Western Isles (Mr. M. MacMillan) some doubt as to the exact position.

Photo of Mr Malcolm Macmillan Mr Malcolm Macmillan , Na h-Eileanan an Iar

I think that is quite clear now.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

There was some doubt?

Photo of Mr Charles Williams Mr Charles Williams , Torquay

He had some doubt, and I am sure he was not reassured in his mind by the Law Officer. We want not only legal arguments, but to know exactly how it will work out in practice. That is why I want a practical reply from the clear-headed Secretary of State for Scotland.

Question put, "That this House doth disagree with the Lords in the said Amendment."

The House divided: Ayes, 185; Noes, 121.

Division No. 252.]AYES.[6.23 p.m.
Acland, Sir RichardAyles, W. H.Berry, H.
Adams, Richard (Balham)Ayrton Gould, Mrs. B.Beswick, F.
Adams, W. T. (Hammersmith, South)Bacon, Miss A.Binns, J.
Allen, A. C. (Bosworth)Balfour, A.Blackburn, A. R.
Allen, Scholefield (Crewe)Barton, C.Boardman, H.
Alpass, J. H.Battley, J. R.Braddock, Mrs. E. M. (L'pl. Exch'ge)
Anderson, A. (Motherwell)Bechervaise, A. E.Braddock, T. (Mitcham)
Attewell, H. C.Belcher, J. W.Brook, D. (Halifax)
Awbery, S. S.Benson, G.Brown, T. J. (Ince)
Bruce, Maj. D. W. T.Jeger, Dr. S. W. (St. Pancras, S.E.)Reid, T. (Swindon)
Burke, W. A.Jenkins, R. H.Rhodes, H.
Butler, H. W. (Hackney, S.)Johnston, DouglasRidealgh, Mrs. M.
Chamberlain, R. A.Jones, D. T. (Hartlepools)Rogers, G. H. R.
Champion, A. J.Kenyon, C.Ross, William (Kilmarnock)
Cluse, W. S.Key, Rt. Hon. C. W.Royle, C.
Cobb, F. A.Kinley, J.Sargood, R.
Cocks, F. S.Kirby, B. V.Shackleton, E. A. A.
Collindridge, F.Kirkwood, Rt. Hon. D.Sharp, Granville
Colman, Miss G. M.Lee, Miss J. (Cannock)Silverman, J. (Erdington)
Cook, T. F.Leonard, W.Skeffington, A. M.
Corlett, Dr. J.Leslie, J. R.Skinnard, F. W.
Cove, W. G.Levy, B. W.Smith, C. (Colchester)
Crawley, A.Lipton, Lt.-Col. M.Snow, J. W.
Davies, Edward (Burslem)Longden, F.Soskice, Rt. Hon. Sir Frank
Davies, Haydn (St. Pancras, S.W.)Lyne, A. W.Sparks, J. A.
Davies, R. J. (Westhoughton)McAdam, W.Stokes, R. R.
Donovan, T.McEntee, V. La T.Stubbs, A. E.
Driberg, T. E. N.McGovern, J.Summerskill, Dr. Edith
Edelman M.McKay, J. (Wallsend)Sylvester, G. O.
Edwards, John (Blackburn)McKinlay, A. S.Symonds, A. L.
Edwards, W. J. (Whitechapel)MacMillan, M. K. (Western Isles)Taylor, R. J. (Morpeth)
Evans, Albert (Islington, W.)Macpherson, T. (Romford)Thomas, D. E. (Aberdare)
Evans, E. (Lowestoft)Mallalieu, E. L. (Brigg)Thomas, Ivor (Keighley)
Ewart, R.Mallalieu, J. P. W. (Huddersfield)Thomas, I. O. (Wrekin)
Fairhurst, F.Manning, C. (Camberwell, N.)Thorneycroft, Harry (Clayton)
Foot, M. M.Manning, Mrs. L. (Epping)Thurtle, Ernest
Forman, J. C.Mellish, R. J.Titterington, M. F.
Fraser, T. (Hamilton)Messer, F.Ungoed-Thomas, L.
Ganley, Mrs. C. S.Middleton, Mrs. L.Viant, S. P.
Gilzean, A.Mikardo, IanWallace, G. D. (Chislehurst)
Glanville, J. E. (Consett)Mitchison, G. R.Warbey, W. N.
Grey, C. F.Monslow, W.Weitzman, D.
Griffiths, W. D. (Moss Side)Morgan, Dr. H. B.Wells, P. L. (Faversham)
Guy, W. H.Morris, P. (Swansea, W.)West, D. G.
Haire, John E. (Wycombe)Nally, W.Westwood, Rt. Hon. J.
Hall, Rt. Hon. GlenvilNaylor, T. E.Wheatley, Rt. Hn. John (Edinb'gh, E.)
Hamilton, Lieut.-Col. R.Noel-Baker, Capt. F. E. (Brentford)Whiteley, Rt. Hon. W.
Hastings, Dr. SomervilleNoel-Baker, Rt. Hon. P. J. (Derby)Wigg, George
Haworth, J.Paget, R. T.Wilcock, Group-Capt C. A. E.
Henderson, Joseph (Ardwick)Paling, Will T. (Dewsbury)Wilkins, W. A.
Herbison, Miss M.Palmer, A. M. F.Willey, F. T. (Sunderland)
Hobson, C. R.Pargiter, G. A.Willey, O. G. (Cleveland)
Holman, P.Parker, J.Williams, J. L. (Kelvingrove)
Holmes, H. E. (Hemsworth)Paton, Mrs. F. (Rushcliffe)Williams, W. R. (Heston)
Hoy, J.Paton, J. (Norwich)Willis, E.
Hudson, J. H. (Ealing, W.)Pearson, A.Wills, Mrs. E. A.
Hughes, Emrys (S. Ayr)Peart, T. F.Wilmot, Rt. Hon. J.
Hughes, Hector (Aberdeen, N.)Perrins, W.Woodburn, Rt. Hon. A.
Hughes, H. D. (W'lverh'pton, W.)Popplewell, E.Young, Sir R. (Newton)
Hynd, H. (Hackney, C.)Proctor, W. T.
Irving, W. J. (Tottenham, N.)Pursey, Comdr. H.TELLERS FOR THE AYES:
Janner, B.Ranger, J.Mr. Simmons and Mr. Hannan
Jeger, G. (Winchester)Rees-Williams, D. R.
Baldwin, A. E.Eccles, D. M.Keeling, E. H.
Barlow, Sir J.Eden, Rt. Hon. A.Lancaster, Col. C. G.
Beamish, Maj. T. V. H.Elliot, Lieut.-Col. Rt. Hon. WalterLegge-Bourke, Maj. E. A. H.
Bennett, Sir P.Erroll, F. J.Lennox-Boyd, A. T.
Boles, Lt.-Col. D. C. (Wells)Fletcher, W. (Bury)Lindsay, M. (Solihull)
Bossom, A. C.Foster, J. G. (Northwich)Linstead, H. N.
Bower, N.Fraser H. C. P. (Stone)Lloyd, Maj. Guy (Renfrew, E.)
Boyd-Carpenter, J. A.Fraser, Sir I. (Lonsdale)Lloyd, Selwyn (Wirral)
Braithwaite, Lt.-Comdr. J. G.Fyfe, Rt. Hon. Sir D. P. M.Low, A. R. W.
Bromley-Davenport, Lt.-Col. W.Galbraith, Cmdr. T. D.Lucas-Tooth, Sir H.
Buchan-Hepburn, P. G. T.Gammans, L. D.Lyttelton, Rt. Hon. O.
Butler, Rt. Hn. R. A. (S'ffr'n W'ld'n)Gates, Maj. E. E.MacAndrew, Col. Sir C.
Challen, C.Glyn, Sir R.McCallum, Maj. D.
Channon, H.Gridley, Sir A.McCorquodale, Rt. Hon. M. S.
Clifton-Brown, Lt.-Col. G.Grimston, R. V.MacDonald, Sir M. (Inverness)
Conant, Maj. R. J. E.Hannon, Sir P. (Moseley)Macdonald, Sir P. (I. of Wight)
Crookshank, Capt. Rt. Hon. H. F. C.Harris, F. W. (Croydon, N.)Mackeson, Brig. H. R.
Crowder, Capt. John E.Haughton, S. G.McKie, J. H. (Galloway)
Darling, Sir W. Y.Headlam, Lieut.-Col. Rt. Hon. Sir C.Maclay, Hon. J. S.
Digby, S. W.Henderson, John (Cathcart)Macpherson, N. (Dumfries)
Dodds-Parker, A. D.Hinchingbrooke, ViscountMaitland, Comdr. J. W.
Donner, P. W.Hogg, Hon. Q.Manningham-Buller, R. E.
Dower, E. L. G. (Caithness)Hollis, M. C.Marlowe, A. A. H.
Drayson, G. B.Howard, Hon. A.Marsden, Capt. A.
Drewe, C.Hutchison, Col. J. R. (Glasgow, C.)Marshall, D. (Bodmin)
Dugdale, Maj. Sir T. (Richmond)Jeffreys, General Sir G.Marshall, S. H. (Sutton)
Dunean, Rt. Hn. Sir A. (City of Lond.)Jennings, R.Mellor, Sir J.
Moore, Lt.-Col. Sir T.Reid, Rt. Hon. J. S. C. (Hillhead)Thorneycroft, G. E. P. (Monmouth)
Morris, Hopkin (Carmarthen)Roberts, Emrys (Merioneth)Thornton-Kemsley, C. N.
Morrison, Maj. J. G. (Salisbury)Robertson, Sir D. (Streatham)Thorp, Brigadier R. A. F.
Neven-Spence, Sir B.Robinson, RolandWakefield, Sir W. W.
Noble, Comdr. A. H. P.Sanderson, Sir F.Walker-Smith, D.
Nutting, AnthonyShepherd, W. S. (Bucklow)Ward, Hon. G. R.
Orr-Ewing, I. L.Smiles, Lt.-Col. Sir W.Wheatley, Colonel M. J. (Dorset, E.)
Peake, Rt. Hon. O.Smith, E. P. (Ashford)Williams, C. (Torquay)
Pickthorn, K.Snadden, W. M.Williams, Gerald (Tonbridge)
Pitman, I. J.Spearman, A. C. M.Willoughby de Eresby, Lord
Ponsonby, Col. C. E.Stanley, Rt. Hon. O.
Poole, O. B. S. (Oswestry)Stoddart-Scott, Col. M.TELLERS FOR THE NOES:
Prescott, StanleyStrauss, H. G. (English Universities)Commander Agnew and
Prior-Palmer, Brig. O.Studholme, H. G.Major Ramsay.
Reed, Sir S. (Aylesbury)Teeling, William

Question put, and agreed to.