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Irish Land (No 2) Bill

Volume 180: debated on Thursday 8 August 1907

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Order for Second Reading read.

Motion made, and Question proposed, "That the Bill be now read a second time."

said the Second Reading of that Bill had been moved without a single word of explanation from the Minister responsible. If it was really of the importance the Memorandum stated it ought not to come before them at that hour. He and his friends had come to an arrangement with the Government that, when the Bill came up for Second Reading, they would not go to a division. In return for that they were promised that adequate opportunity would be given for discussion of their views. How far the Patronage Secretary considered he was carrying out that arrangement by bringing the Bill forward in that manner he (Mr. Moore) did not know.

I do not suppose the Minister in charge will deny that there was an understanding with the Member for South Dublin.

I heard nothing whatever of any undertaking.

said that perhaps it was the Chief Secretary. Where was the Chief Secretary? He (Mr. Moore) did not ask that the Bill should be postponed, but the Patronage Secretary could not, in the circumstances, complain if his friends and he did not carry out their part of the undertaking. The object of the Bill as he understood it—he would like to be corrected if he was wrong—was to deal with certain mineral rights in Ireland. He thought the House had a right to complain that the purpose of the Bill had not been stated by those who were responsible for it. It was rather unusual, and he might be reproached subsequently for it, that the people who were opposed to the Bill should be placed in the position of having to explain its terms. He dealt with the first part of the Bill first. Under the Act of 1903, in certain cases, minerals on an estate which was purchased, were vested in the Land Commission to be then disposed of as the Commission should direct. He thought it was understood that the direction should be contained in the Act, but owing to an oversight, or for some reason or other, the Act became law without containing a precise direction. He might remind the House that the mineral rights of Ireland were a very valuable property, and they ought to watch very carefully how they were disposed of when legislation was required for the purpose. There was in Ireland a body which, of all bodies, would be most suited permanently to deal with this matter, a body which had done a great deal of valuable work. He referred to the Geological Survey. If the matter were English or Scottish nobody in that House would deny, looking at the question impartially, that the Geological Survey, with all the materials they had collected from time to time, with all the knowledge at their disposal, were the proper people to deal with the minerals which had been acquired by the State under the provisions of the Act, because it was not a mere matter of sale or barter, as the Bill itself proved. Under the Bill, prospecting and boring, and experimental assays of that sort, would be carried out throughout the country, and he thought it would have been ordinary common sense if the proposals of the Bill had been to put the prospecting and the working of these minerals, the ascertaining where they were, in what quantities they were, and how they could best be developed, in charge of the Geological Survey. He was aware the Geological Survey had lost its independent existence, that it was now merged in or rather under the control of the Department of Agriculture and Technical Instruction. He supposed that it would be out of order on the Second Reading of the Bill to move an Amendment transferring the obligation and responsibility for working these mineral rights to the Geological Survey, and he merely said that he regretted that the proper persons were not in the first place selected to carry out that work, which really ought to be done by the Geological Department under the control of the Department of Agriculture. The Bill proposed that Land Commission should carry out the work. That might suit the Government, very well, and it was perfectly true that by the operation of the Act of 1903 these mineral rights were vested in the Land Commission. But the Government had—he would not use the word concealed—had omitted to state in the explanatory Memorandum which was supposed to make the Bill clear what the Land Commission apparently meant in that case. Under one of the sections of the Act of 1903, he thought it was the 23rd Section, the Land Commissioners were said to mean the Estates Commissioners. He thought that they had had plenty of evidence in that House during the present session, not only of the way they did it, but also of the very considerable amount of work the Estates Commissioners had had crowded on them. They had had evidence that the Estates Commissioners were hopelessly in arrear with their work, while the legislation of this session was destined to throw a very heavy additonal burden on their shoulders. He did not think it was at all desirable that the Estates Commissioners, if they were the people meant by the Land Commissioners—again he regretted the uncertainty they were in through not having had the benefit of an explanatory statement—should have this extra work thrown on them. If by the Land Commissioners the Estates Commissioners were meant, then he thought it was desirable that somebody more responsible should be vested with the responsibility of dealing with these important rights. He would like the Minister in charge of the Bill to state if he would consent to the judicial head of the Land Commission, Mr. Justice Wylie, a gentleman appointed by the present Government, and whom they all respected, to have all schemes submitted to him. Would the Government consent to allow all schemes dealing with minerals which the Land Commission might have to be brought before Mr. Justice Wylie? He did not think that that was an unreasonable proposition to make. It would certainly facilitate the passing of the Bill. He appealed to the Minister in charge of the Bill to state whether it was intended to vest these rights in the Estates Commissioners without any control. The Estates Commissioners were perfectly at liberty, under their own powers, to sit in their own office, no one being one whit the wiser, and to do just what they thought fit. He did not think such a course would give general satisfaction. They wanted some guarantee that the head of the Commision should be a party to the schemes. It was the head of the Land Commission in whom the mineral rights were vested, and to whom, in name if not in deed, that Bill proposed to transfer the duties. He would have preferred not to have spoken at that stage, for he had hoped to hear what the Government's views were in regard to the Bill, and how far they were prepared to meet reasonable objections. They knew there were reasonable objections, otherwise they would not have promised an opportunity for discussing the Bill. He had only spoken at that stage so that they might hear the proposals of the Government. There was a second part of the Bill which related to a matter dealing with charges on holdings created by will or codicil. It provided that the period within which registration of these charges would be valid would be within six months of the grant of probate of the will or letters of administration. That was not unreasonable, but it was a matter on which, he thought, they ought to have some explanation and some statement as to the reasons which had led the Government to alter the existing law. He was not saying that the Government were not perfectly right, but they should have some explanation of it When they had had that explanation they would be in a position to understand how far the second part of the Bill required discussion on their part. The explanation in the memorandum was nothing more than a sort of dedication, and it did not explain why these things were necessary or how the existing law failed to satisfy requirements. He hoped that before the debate really began they would have an authoritative statement from the right hon. Gentleman in charge of the Bill as to what its scope and intention really were. It was impossible that the Bill should be passed without any explanation.

said he would be very sorry indeed if the House should think there had been any breach of arrangement or understanding with regard to bringing on that Bill at that hour of the night, or that he had been guilty of any discourtesy in not making an explanatory statement. He was not aware that any arrangement had been made. The only conversation he had had with any hon. Member was with the hon. Member for Mid Armagh, who, he thought would have no objection to his stating what transpired. The hon. Member told him he had no objection to the Bill, but wished that some little time should be given to discuss it, saying that they would not require more than an hour. He toll the hon. Member that though is was early in the session it was difficult to get even an hour then, but, if he would wait till later in the session they might get an hour for the discussion of the Bill. Exactly what he undertook should be done had been done. They had got a little time, at the end of a long day it was true.

said no suggestion that the Bill would be taken at that late hour was made in their conversation.

said he had promised that an hour should be given. As regarded the other matter they had had a memorandum circulated with the Bill explaining its object, and he had not thought it necessary to trouble the House at that late hour of the night with any further explanation. As the hon. Member had asked for it, however, he was bound to give it. The Bill, as hon. Members would see by referring to the memorandum, was absolutely necessary to carry out the Act of 1903 passed by the late Government. Clause 13 of the Act of 1903 provided that—

"On the sale under the Land Purchase Acts of any land by that Commission or of any land comprised in an estate by the owner of the estate, there shall be reserved in the prescribed manner to the Commission the exclusive right of mining and taking minerals and digging and searching for minerals on or under that land and the said right shall be disposed of by the Commission in manner hereafter to be provided by Parliament."
It was absolutely necessary now that an Act of Parliament should be passed with that object, and that Bill had been brought in to carry out the necessary directions of the Act of 1903. The hon. Member had referred to the Estates Commissioners as being persons who ware to carry out that work, and he thought the hon. Member raised some objection to their doing it.

said he would like the Attorney-General to tell them what minerals the Estates Commissioners had to deal with now, and whether there was any necessity for immediate legislation which rendered the passing of that Bill necessary?

said there was immediate necessity. The Bill was introduced last session but had to be dropped and a great deal of inconvenience had been the result. In the county of Kerry a large amount of minerals was vested in the Estates Commissioners, and there were now prospectors on the spot for the purpose of establishing copper mines. That could not be done without a Bill because without the powers the Bill conferred on them the Estates Commissioners were powerless to do anything. The Act of Parliament passed in 1903 provided that the rights to be vested in the Land Commissioners were to be defined hereafter by Act of Parliament. It was believed that in the county Kerry copper mines could be carried on at great profit, and, as he had said, there were prospectors on the spot ready to proceed if they found that the result of their inquiries was satisfactory. He hoped that as a result of the passing of that Bill they would have a very important-mineral industry established there. In the county of Antrim, with which the hon. Member was probably better acquainted, there was every possibility of iron mines being developed. It was for that reason that the Government were anxious that Bill should be passed at the earliest possible date. They felt that the exact wording of the Act of 1903 left them no alternative than that the rights should be vested in the Estates Commissioners. The Act provided that the exclusive right of mining and taking minerals, and digging and searching for minerals, should be vested in the Land Commission and should be disposed of by the Commission in manner hereafter to be provided by Parliament. The body which was to have control must under the Act of 1903 be the Land Commission. He rather gathered that the Land Commission would lease the mineral rights in that Bill under their seal, and if the seal of the Land Commission was fixed the head of the Land Commission would, as the hon. Member desired, have a voice in the arrangements. It was a duty of the Estates Commissioners, which they could riot get rid of to dispose of those rights, and therefore it was necessary that they should allow them to make the leases. The hon. Member had said that the Estates Commissioners had already got a great amount of work which they could not discharge. That Bill would relieve them for it would enable them to get rid of the mineral rights. That they would proceed to do, and the development of the country would be carried out and the object aimed at by the Act of 1903 would be achieved. The Act of 1903 was a deliberate Act of Parliament directing that the mineral rights should be reserved till Parliament hereafter arranged for their disposal. The other clause of the Bill was very simple, and he thought that he need not enter on any very lengthy explanation of it. It was a purely legal clause and a rather technical one, and for that reason it was not necessary that the memorandum should make any reference to it. The Act of 1903 required that charges should be registered within a certain time. A charge created by deed must be registered within six months of the making of the deed, and a charge created by will must be registered within six months of the death of the testator. There was a grave possibility that serious injustices might be perpetrated under this provision. Supposing, for instance, a man died and by will left his farm to his son. He charged, say, in favour of a daughter who was away a sum of £100 or £200 on the farm. Assuming that the son was anxious to cheat his sister of her right all he had to do was to hold the will for six months without proving it. At the end of that time the charge would be void because it had not been registered. All that the Government sought to do in the Bill was to throw the onus of registering the charge on the person who occupied the land. That was a perfectly fair arrangement, and would be a safeguard against possible unfairness or injustice. He hoped therefore that the House would allow the Government to secure the Second Reading of the Bill and to pass it into law as soon as possible.

said that he did not want to oppose the Second Reading of the Bill, and he thought that the matter just referred to by the learned Attorney-General was a proper one to be dealt with. He wished, however, to call the learned Gentleman's attention to two or three matters connected with the Bill. He knew there were provisions in the Land Act of 1903 which instead of allowing the Land Commission to be the actual body to deal with this matter would put it in the hands of the Estates Commissioners. Perhaps he was wrong, but for his own part he would prefer that an important matter like this, connected with the granting of leases, the profits arising from which would be of advantage to the working of the Land Act of 1903, should be under the control of the head of the Land Commission, who was a Judge of the High Court. He did not think that it would weaken at all the effect of this Bill if the Government did that. He therefore asked the learned Attorney-General to take into his active consideration the question of whether it would not be better, apart from any arrangement under the Act of 1903, that Parliament should provide that this matter of the leasing and sale of mineral rights should be under the direction of the Land Commission itself. There was another matter to which he wished to call attention. The Bill, he thought, would unnecessarily hamper the making of these leases. If hon. Members looked at the first clause they would find that the Irish Land Commissioners—

"May let, lease, sell, or demise to any person for his own benefit, in such terms and subject to such conditions as they may think proper, any exclusive right of mining or taking minerals, or digging, or searching for minerals, reserved to them under Section thirteen of the Irish Land Act, 1903."
There might be a good reason for inserting the words 'for his own benefit," but he could not at that moment determine what the reason was, and it was a point on which he should like an explanation. The House would be aware that mines and minerals were generally developed by companies which were formed for the purpose. Leases were very frequently made to persons who were trustees for these companies, and he could not see why the power should be restricted to merely granting leases or selling to persons who were going to work for their own immediate benefit. The learned Attorney-General should carefully consider this matter and remove these words, which were an unnecessary bar in the way of the development of property. He thought it would be better on all grounds for the Land Commission to have the power to grant leases to persons who might be trustees for a corporation or a private company which desired to work the minerals provided they were satisfied with its stability. As regarded the second clause of the Bill, dealing with the registraton of charges created by will, he thought that the provisions there laid down might lead to inconvenience and might prove in some way inadequate to carry out what the learned Attorney-General had stated to be his intention in framing the clause. The second subsection provided that—
"Such registration shall, within the time limited by this section, be effected, for the benefit of the owner of the charge, by the person becoming beneficially entitled to the holding on the death of the testator."
That meant, he supposed, that a charge created in favour of somebody who was not beneficially or who was not to become beneficially entitled to the holding under the will of the testator was to be registered by the person becoming beneficially entitled to the holding. He was afraid that the very difficulty which the learned Attorney-General had referred to when he spoke of the man who was to become entitled to the holding keeping the will in his pocket might arise under this clause, and that the object of the testator in giving a charge on the holding which was left to him would be defeated. Even assuming that the man to whom the holding was demised actually proved the will, it might happen that the person entitled to a charge on the holding was in Australia, or was a minor, or was unable to deal with the matter himself. Why should it be that the charge was to be registered by the person becoming beneficially entitled to the holding? He would suggest to the learned Attorney-General that he should go a little farther and make such provision in the Bill that the person who was really entitled to the charge should have the right to register. It would, he thought, be easy to supply a form of words which would provide that the charge should be registered by that person within six months of the time when he became cognisant of the fact that he was entitled to the charge. The person for whose benefit the charge was made might not hear of it at all until after six months had elapsed from the date of the death of the testator, and he desired that a case like that should be covered by the provisions of the Bill. The point he had raised might not be an objection to the Bill in itself, but it was an important matter which ought to be considered, and the Bill might easily be so amended as to deal with it. He trusted, therefore, that the Government would take such steps as would ensure that the person who was entitled to the charge should have a reasonable time in which to register it and make it valid under the Act. He did not think there was any desire on the part of his hon. friends on that side of the House to offer opposition of a strong character to the Second Reading of the Bill, but it was their desire that the proposed legislation should proceed on the best possible lines in order to carry out the intentions of the Government in a satisfactory way. They further wished that proper time should be afforded for a short but reasonable discussion of the Bill.


agreed with his hon. Friend that it was most desirable that the Land Commission should be empowered to deal with these rights, and he regretted that the Estates Commissioners, whose hands were already quite full of work, should be cumbered with any subterranean duties. They also thought that without taking this matter out of the hands of the Estates Commissioners the learned Attorney-General might very well have inserted an Amendment making any leases or ales that might be effected by the Estates Commissioners subject to the approval of a Judicial Commissioner or of Mr. Justice Fitzgerald, because the objection suggested by the hon. Member for North Armagh to the way in which the Estates Commissioners dealt with many of their important duties was not a mere formal one. He would point out also that there were other people interested in the question. The Estates Commissioners were trustees as to one-fourth of the profits derived from the working of the minerals, or as to their sale, for the owner. The matter therefore was very important and it should be under the control or supervision of a trained lawyer—either the Judicial Commissioner or Mr. Justice Fitzgerald. As regarded the second part of the Bill he recognised the good intentions of the Attorney-General, and he believed he was to some extent responsible for it by calling attention to the extraordinary result that would arise in many cases under subsection 4 of Section 54 of the Irish Land Act, 1903. He told the Attorney-General that the section could not have been intended for white men. It had, he thought, an Oriental origin, and was drawn up in an absolute disregard of the laws of Ireland. It prevented people who were supposed to be free men from dealing with their land by way of charge or mortgage. It prevented any man from borrowing money on the security of his holding. He supposed it was intended to protect the improvident and thriftless proprietor of land, but it was framed without any knowledge of the law of Ireland, because it did not prevent a judgment mortgage. It was now proposed that a charge upon land should be registered within six months of the death of the testator. The Attorney-General had pointed out one way in which this particular provision of the Land Act might operate most dishonestly, but there were dozens of other ways. The will might be made abroad, or it might result in a lawsuit, or a hundred other things might happen. The subsection of the Act in question was perfectly absurd, and he was glad that the Attorney-General was attempting to amend it, but he would have been much better pleased if the object of his Bill had been totally to repeal the subsection. No matter how Parliament amended it, he believed they would find that it would still be unworkable and lead to the same results as those described in previous speeches. Subsection 2 of the second clause of this Bill would, however, prove absolutely unworkable. It was worse, he thought, than the old subsection. The proposal was that such registration should within the time limited by the section be effected for the benefit of the owner of the charge by the person beneficially entitled on the death of the testator. He could conceive various instances in which it would be impossible to carry out such a proposal. The person beneficially entitled might die within six months, might be an infant, might be a lunatic, might, when he succeeded, be in some remote part of the earth and be quite unaware of what had happened. In that case he could not possibly register within six months. The Attorney-General's Amendment would only make confusion worse confounded. They were only two possible ways of making his Amendment effective. They were both undesirable. One was to throw the duty upon the officer of the Probate Court, who should transmit a copy of the will containing the charge to the proper officer, or to throw the duty upon the personal representative of the de eased. To adopt either procedure was open to grave objection.

MR. CHERRY said he did not seek to provide that the charge could only be registered by the person beneficially entitled. What he sought to do was to cast the duty upon the person who became beneficially entitled to the land to carry out registration.

*MR. FETHERSTONHAUGH said the section was absolutely unworkable as it stood, and could only be made workable by the means he suggested. The best Amendment would be repeal of the section. It was impossible, satisfactorily, to arrange this registration of a charge created by will. The section threw no effective duty on anyone and gave no remedy for breach of the duty. He most earnestly pressed on the Attorney-General whether the whole section could not be, with advantage to everybody in Ireland, repealed. He had never in a tolerably extensive legal experience met anybody who asked for the section, and he had heard complaints from every corner of Ireland, among all classes of people, about it. It was an absolutely silly section. It did not protect the thriftless man and it imposed a burden on the thrifty. It was not a proposal to be applied to white men. It was unsuitable to a civilised country, and the very impossibility of making any satisfactory Amendment showed that the best thing would be to get rid of it. If they could not have that, he would urge the consideration whether the duty should not be thrown upon the probate officer. The section had worked most horrible iniquity up to the present. In several instances known to himself, people had been deprived of their charges, in some oases through mere ignorance. People did not rush off immediately to prove a will after a man's death, and did not know it was to be registered within six months. In a large number of cases, registration did not take place through inadvertence. He pressed for the repeal of the section.

rose to appeal to his hon. friends not further to oppose a Bill on which both sides of the House were largely agreed. The points which had been raised appeared to him, and he thought would appear to the House, as points which were far more suited for Committee than for a Second Reading debate. He hoped his hon. friends would not proceed in their opposition.

Question put, and agreed to.

Bill committed to a Committee of the Whole House for To-morrow (Friday).