2767 STANDING COMMITTEE ON SCOTTISH BILLS. Thursday, 22nd April, 1926.

[Mr. JAMES BROWN in the Chair.]

HEATHER BURNING (SCOTLAND) BILL.
[OFFICIAL REPORT.] CLAUSE 1.
—(Prohibition of muirburn at certain times.)

It shall not be lawful to make muirburn or set fire to any heath or muir except before the sixteenth day of April or after the thirtieth day of September in any year; Provided that in the case of high and wet muir lands it shall be lawful for the proprietor where such lands are in his own occupation, and for the tenant with the written authority of the proprietor or of his factor or commissioner, where such lands are let, to make muirburn or burn the heath thereon at any time during the period from the sixteenth day to the thirtieth day of April in any year; and provided further that, where the proprietor of any such lands or his factor or commissioner has refused or has failed within two weeks after written application has been made to him by the tenant of any such lands to give such written authority, the Board of Agriculture for Scotland (hereinafter in this Act referred to as the Board) may, on the application of such tenant, if they are satisfied that owing to the situation or altitude of such lands or for any other reason which they may consider sufficient it is expedient to do so by order authorise the tenant to make muirburn or burn the heath on such lands at any time during the period last mentioned.

Major Sir ARCHIBALD SINCLAIR: I beg to move, after the word "April," ("from the sixteenth day to the thirtieth day of April in any year") to insert the words "or in the case of land in deer forests more than fifteen hundred feet above sea level, to the fifteenth day of May." This Amendment is on the same lines as the Amendment moved by the hon. Member for Dundee (Mr. Johnston), at the previous sitting of the Committee, when he sought to extend the date with regard to deer forests to the 31st day of May. The arguments brought forward 2768 against the hon. Member's Amendment on that occasion, are no doubt the same as those which will be brought against this Amendment but, obviously in this case, their force is much weakened because of the date which I propose.

Mr. KIRKWOOD: On a point of Order. I wish to draw attention to the fact that the right hon. Gentleman the former Secretary for Scotland (Mr. Adamson) is smoking. Is that permissible?

The CHAIRMAN: The point of Order is sustained. Smoking is not allowed in Committee.

Mr. WILLIAM ADAMSON: I apologise. I was not conscious that I was smoking.

Mr. DUNCAN GRAHAM: Would it not conduce to harmony if we were allowed to smoke?

Mr. MACQUISTEN: As we are dealing with the burning of heather, we might be allowed to burn tobacco.

The CHAIRMAN: No; it is not usual.

Sir A. SINCLAIR: The arguments employed against the Amendment of the hon. Member for Dundee were roughly as follows. First, the hon. and learned Member for Argyllshire (Mr. Macquisten) pleaded with the Committee not to countenance indiscriminate burning. If the Committee examine the Bill, they will see that this is the very last thing which would be introduced by this Amendment, because it only refers to cases where the proprietor and tenant are in agreement that burning is required, or, where in cases of disagreement on that point, the matter is subject to the arbitration of the Board of Agriculture for Scotland. Therefore, there can be no fear, if this Amendment be passed, of indiscriminate burning being allowed, and that is purely a bogey, The hon. Member for Forfar (Sir Harry Hope) said he was most anxious to make the Highlands as useful as possible for agriculture, but he objected that a great deal of damage might be done to bird life in Scotland by burning. As the Amendment is restricted to 15th May, I do not think there need be much fear of serious damage to the bird life of Scotland. I would put it to the Committee, however, that it is equally important, if not more important, to protect the sheep of Scotland. 2769 Hon. Members are no doubt familiar with the evidence given before the Departmental Committee on Heather Burning in 1920. I will not refer to it in detail, but one well known farmer in his evidence referred to the experiments which he carried out in 1906 in connexion with Professor Hamilton's inquiry concerning braxy in sheep. He goes through details of his experiments in the years 1906, 1907 and 1908, and he says he found, from these and from later experience, that muirburning reduces the death rate from this deadly and painful disease which affects sheep. From recent evidence concerning the effect of heather burning on the health of sheep, I find that in 1924 a big hill farm was very heavily burned, with the exception of about 500 acres. On the unburned land out of 53 ewe hoggs, 11 died, equal to 21 per cent., and on the burned land out of 363 ewe hoggs, 6 died equal to 2 per cent. These figures clearly show that if the ground upon which sheep are going to be grazed is properly burned, it reduces the risk of disease for those sheep, and reduces the risks particularly of this deadly and painful disease of braxy. I suggest that this is a more important and practical matter than concern for the number of nests of wild birds which might conceivably be burnt. As to the other arguments which were employed, the hon. Member for Aberdeen (Mr. Robert Smith), who introduced the Bill, made a particular point of the protection of lambs. But surely, in the case of the lambs, the man most obviously concerned to protect them is the tenant himself, and he is very unlikely to countenance any burning which may injuriously affect his stock, while it is hardly conceivable that the proprietor would consent to anything which would endanger the lambs of the tenant. I do not know if that is the fear which animated the hon. Members who spoke on that point, but I feel convinced it has no foundation. An argument used by several hon. Members was that the date 31st May had not been demanded by some of the Committees which dealt with this question. That, so far as it goes, is quite true, but in regard to the date suggested in my Amendment—15th May—I would point out that it was first suggested by the Departmental Committee appointed in November, 1919, to 2770 inquire and report with regard to land in Scotland used as deer forests. In their report, on page 21, they say: "1,387,098 acres or about two-fifths of the total deer forest area, lie above the 1,500 feet contour, and late snow makes burning impossible within the time limit necessary for the protection of grouse nests." That, I think, is the universal experience of practical men with grazings on high levels. The report adds: "We are strongly of opinion that in forests where grouse are negligible the sheriff should be empowered to sanction the burning of heather by the owner up to 15th May." That recommendation was made after consultation with the Game and Heather Burning Committee and, therefore, it is an obvious deduction that the Game and Heather Burning Committee concur with the recommendation of the Departmental Committee. Finally, I refer to the Scottish National Conference on Agriculture assembled by the Government last year, which expressly adopted the recommendations made by these Committees, and, in particular, those of the Departmental Committee on deer forests. Every single organisation representing the interests of Scottish farming is in favour of the extension of the date to 15th May. The National Farmers' Union mention in their Parliamentary programme that in the case of deer forests and similar high land, the last day of burning should be 15th of May. The National Farmers' Union, the Scottish Chamber of Agriculture, the Black Faced Sheep Breeders' Association, the Cheviot Sheep Society—every one of these important, influential and representative organisations is in favour of the date which I propose in my Amendment. I appeal to the hon. Members who have brought in this Bill and who are I know animated by a sincere desire to do something practical in the interests of Scottish agriculture, and to the Government also, to accept the Amendment.

The SECRETARY for SCOTLAND (Sir John Gilmour): Perhaps it is appropriate, following on what passed at the last meeting of the Committee, that I should say, on behalf of the Government, in tendering advice to the promoters of the Bill, that we have considered this question since the last meeting, and have come to the conclusion that the Amend- 2771 ment should be accepted. I think that is the consensus of opinion in the Committee.

Mr. ROBERT SMITH: As far as I am concerned, I am willing to accept the Amendment.

Amendment agreed to.

Sir ROBERT HAMILTON: I beg to move to leave out the words "two weeks," and to insert instead thereof the words "seven days." This Amendment is easily understandable. The Clause at present reads "where the proprietor or his factor or commissioner has refused or has failed within two weeks after written application," etc. We think two weeks is an unnecessarily long period after application has been made. It is important in these matters to consider such things as the weather and the nature of the season, and we think seven days is a sufficient time in which to give an answer.

Mr. SMITH: I am willing to accept the Amendment, in order that the matter may go through more quickly.

Amendment agreed to.

Further Amendment made:

Leave out the words "at any time during the period last mentioned" and insert instead thereof the words "or any portion of them during the whole or part of the period last mentioned in the year to which the order relates."—(Mr, Smith.)

Sir R. HAMILTON: I beg to move, at the end of the Clause, to add new Subsections: "(2) When any such orders shall have been made the tenant shall be entitled to make muirburn or burn the heath in accordance therewith, notwithstanding anything to the contrary in the terms of the lease or tenancy or otherwise. (3) Notwithstanding the provisions of any lease or other agreement to the contrary, the tenant of any lands shall be entitled to make muirburn or burn the heath thereon from the first day of October to the sixteenth day of April, both inclusive, in such manner and to such extent as to him seems necessary or expedient." The object of this Amendment is to prevent contracting out. It is unnecessary 2772 for me to speak at any length in favour of the proposal, but I may say that it is one to which the Farmers' Union of Scotland attach considerable importance. We have had experience of a similar Clause in regard to ground game, and it has worked very reasonably and sensibly when dealt with by reasonable and sensible men, as will be the case here. The insertion of the Amendment will tend to remove causes of friction between the tenant and the proprietor.

The LORD ADVOCATE (Mr. W. Watson): I regret that we cannot advise the Committee or the promoters of the Bill to accept this Amendment, for two separate reasons. As regards the first Sub-section, it is entirely unnecessary. A tenant may burn during these periods with the landlord's permission, and it is the refusal of that permission that entitles him to go to the Board of Agriculture. The Board can then give a statutory permission which takes the place of the landlord's permission, and it is clear that this is a lawful permission which will supersede any provision in the lease. Accordingly the first part of the Amendment seems quite unnecessary. The matter is quite clear and beyond doubt. With regard to the second Sub-section it would really be subversive of the whole principle of the Bill. The effect of it would be to put the control of burning, in the case of a tenant who has a restriction in his lease, entirely at the mercy of the tenant. It would render Clause 2 of the Bill completely unnecessary. The scheme of the Bill is that the landlord, who has a tenant bound by restrictive covenants, shall not be unreasonable as regards burning to the detriment of the tenant, and the judges of that are to be the Board of Agriculture. That is a businesslike and reasonable way of accommodating mutual interests as between landlord and tenant and to supersede that and all contracts by leaving the tenant a completely free hand in such cases does seem objectionable. We cannot advise the Committee to accept this Amendment.

Sir A. SINCLAIR: I understand that these two Amendments were put down separately, but they have been grouped together. Is it not possible to separate them again so that the Committee might be able to discuss them separately?

2773

The CHAIRMAN: I think they can be moved separately.

Amendment, by leave, withdrawn.

Sir R. HAMILTON: I beg to move, at the end of the Clause, to add a new Subsection: "(2) When any such order shall have been made the tenant shall be entitled to make muirburn or fourn the heath in accordance therewith, notwithstanding anything to the contrary in the terms of the lease or tenancy or otherwise."

Mr. SMITH: On this Amendment, I accept the advice of the Lord Advocate.

Sir A. SINCLAIR: May I state, in answer to what the Lord Advocate has said, that great apprehension is felt by farmers on this particular point. The Amendment makes no addition to the proposals of the Bill. In fact, it only strengthens them and makes it quite clear that the tenant shall be entitled, notwithstanding anything in the terms of his lease, to make muirburn in accordance with these provisions. Is it not possible to accept these words in order to make it clear that these rights are secured to the tenant farmer?

The LORD ADVOCATE: It is the desire of everyone to make the matter quite clear. If the Committee will look at the words of the Clause they will find that the Board if they consider it expedient may by order "authorise the tenant to make muirburn," and the insertion of this Amendment would make the word "authorise" quite ineffective. The conditions of a lease are only contractual, and the landlord and tenant can agree to supersede them if they choose. If they do not agree the Board is expressly authorised. I do not think you can have a stronger word. If you qualify things too much in an Act of Parliament it has often an unfortunate effect; it is rather apt to limit the construction. It is solely from that point of view that I 2774 am not anxious to have words that are unnecessary. They often produce complications which are unforeseen, and in this case might injure the landlord or tenant, or both. I hope the Committee will feel satisfied that the word "authorise" means that they can give valid authority.

Sir ALEXANDER SPROT: I think hon. Members who are supporting this. Amendment should read the first part of Clause 2, which seems to me to meet the point they have in view. We have not yet passed Clause 2, but I presume we shall, and I think their objections will be met by that Clause.

Sir R. HAMILTON: Provided it is perfectly clear that the order of the Board supersedes anything in the lease there is no good in moving this first Amendment.

Amendment, by leave, withdrawn.

Sir R. HAMILTON: I beg to move, At the end of the Clause, to add a new subsection: "(3) Notwithstanding the provisions of any lease or other agreement to the contrary, the tenant of any lands shall be entitled to make muirburn or burn the heath thereon from the first day of October to the twentieth day of April, both inclusive, in such manner and to such extent as to him seems necessary or expedient."

The LORD ADVOCATE: As I have already said, we cannot advise the Committee to accept this Amendment. I do not need to repeat what I have said on this matter.

Sir R. HAMILTON: This is a matter on which the Farmers' Union attach considerable importance. Members of the Committee have had their views before them, and it is largely on behalf of the farmers that the Amendment is moved.

Question put, "That those words be there added."

The Committee divided: Ayes, 17; Noes, 23.

Division No. 3.] AYES.
Adamson, Rt. Hon. W. (Fife, West) Johnston, Thomas (Dundee) Sinclair, Major Sir A. (Caithness)
Barr, J. Kennedy, T. Stewart, J. (St. Rollox)
Cowan, D. M. (Scottish Universities) Kirkwood, D. Sullivan, Joseph
Hamilton, Sir R. (Orkney & Shetland) Murnin. H. Watson, W. M. (Dunfermline)
Henderson, T. (Glasgow) Ritson, J. Westwood, J.
Hutchison, Sir Robert (Montrose) Scrymgeour, E.
2775
NOES.
Watson, Rt. Hon. W. (Carlisle) Fanshawe, Commander G. D. Smith, R. W.(Aberd' n & Kinc' dine, C.)
Barclay-Harvey, C. M. Gilmour, Lt.-Col. Rt. Hon. Sir John Sprot, Sir Alexander
Broun-Llndsay, Major H. MacAndrew, Major Charles Glen Steel, Major Samuel Strang
Craik, Rt. Hon. Sir Henry MacRobert, Alexander M. Streatfeild, Captain S. R.
Crookshank, Col. C. de W. (Berwick) Macdonald, Sir Murdoch (Inverness) Stuart, Hon. J. (Moray and Nairn)
Daikeith, Earl of Macquisten, F. A. Thorn, Lt.-Col. J. G. (Dumbarton)
Davies, Maj. Geo. F. (Somerset,YeoviT) Mitchell, S. (Lanark, Lanark) Thomson, F. C. (Aberdeen, South)
Elliot, Captain Walter E. Shaw, Lt.-Col. A. D. Mel. (Renfrew, W)

Clause, as amended, ordered to stand part of the Bill

CLAUSE 2.
—(Regulation of muirburn by Board of Agriculture for Scotland).

(1)Where the tenant of any lands is precluded by the terms of his lease or otherwise from making muirburn or burning the heath thereon in such manner or to such extent as to him seems necessary or expedient, he may, after giving to the proprietor or his factor or commissioner two weeks notice of his intention to do so, make application to the Board for an order regulating muirburn on such lands.

On any application under the foregoing Sub-section the Board may, after such enquiry as they think fit, and after considering any representations by the parties interested which may be lodged with the Board within a period fixed by the Board, make an order regulating muirburn or the burning of the heath on such lands. Any such order may prescribe the area and the portions of the lands on which, and the conditions subject to which, muirburn may be made or the heath may be burnt in any year during the currency of the lease: Provided always that such order shall not authorise any muirburn or burning of the heath at any time when the same would be in contravention of section one of this Act. In making any such order the Board shall have regard to the interests of the proprietor, of the tenant, and of any other person whom they may deem to have an interest. When any such order shall have been made the tenant shall be entitled to make muirburn or burn the heath in accordance therewith, notwithstanding anything to the contrary in the terms of the lease or tenancy.

Sir J. GILMOUR: I beg to move, in Sub-section (2), to leave out the words "the Board may, after such inquiry as they think fit, and after considering any representations by the parties interested which may be lodged with the Board within a period fixed by the Board," and to insert instead thereof the words "if the Board, after such inquiry as they think fit and after considering any representations by the parties interested which may be lodged with the Board within a period fixed by them (including any representations as to the manner in which and the extent to which muirburn or the burning of the heath has been or is being carried out by the proprietor) are satisfied that it is expedient to do so, the Board may." 2776 This is really merely a drafting Amendment, to make clear what the duties of the Board are in framing their orders.

Amendment agreed to.

Mr. SMITH: I beg to move, in Subsection (2), to leave out the words "may prescribe the area and the portions of the lands on which, and," and to insert instead thereof the words "shall specify the lands on which and shall prescribe." This is merely a drafting Amendment in order to make clear the meaning of the Bill.

Mr. JOHNSTON: Could we have an explanation as to what this Amendment means? As I read the Bill, it conveys precisely the same meaning as the suggested Amendment. What is the idea behind the Amendment?

The LORD ADVOCATE: We did not think the original wordings were very happy, because it seemed doubtful as to what the word "area" exactly meant. I apprehend that the power that we want to entrust to the Board is that they shall, if they see fit, state exactly the portion of the farm or farms on which burning shall be authorised by them contrary to the provisions of the lease. The word "area" is not a very happy word, and we thought it would be better to word it differently, and at the same time to leave the conditions completely general. The word "prescribe" more naturally applies to conditions than to "area" You want to define an area and to prescribe a condition, and this is truly only a drafting Amendment.

Mr. JOHNSTON: The two highly desirable words for which the, hon. Gentleman has been looking, namely, "prescribe" and "portions," are in the Bill now.

The LORD ADVOCATE: The word "prescribe" is not quite suitable to go with "area" I think we should specify an area and prescribe the conditions.

2777

Question, "That the words proposed to be left out, stand part of the Clause," put, and negatived.

Motion made, and Question proposed, "That those words be there inserted."

Sir A. SINCLAIR: I did not quite follow what the Lord Advocate meant in his answer in regard to the exact difference between the effects of the different words. Does it mean that the Board will have in every case to go down and decide exactly what plots are to be burned? If so, the work placed on the Board in any year would be quite outside the powers of its staff to undertake. If there were a large number of applications, or even a moderate number, from counties all over Scotland, it would be impossible for the officials to visit the spot in the case of every application and to indicate precisely the plot to be burned. Surely the wider but not revolutionary powers proposed in the Bill should be adequate. It seems to me that the words of the Amendment, if strictly interpreted, would place an intolerable burden on the officials of the Board.

The LORD ADVOCATE: I agree with the hon. Member for Dundee (Mr. Johnston). There is not much real distinction between the phrases, and I think the same objection might be open to the Bill as drawn, but it is simply that the words "prescribe the area and the portions of the lands" seemed to suggest that there is some difference between "area" and "portions" I do not think there should be, and we sought a simpler phrase, and thought that "specify the lands" would be better. Assume a case where the tenant is bound by restrictive covenants against burning at all—to take a strong case—and the landlord declines to release him. The tenant comes to the Board, and the landlord may say: "I object to burning on any part of the area, but there is a particular part of it which at no cost shall be touched." He may convince the Board, or the tenant may fail to convince the Board, as regards a part of the area, and we want to give the Board power to say: "You have satisfied the Board as regards this portion of the farm, but you have failed to satisfy us with regard to that portion." We must give the Board that power, and, if there be a dispute, the Board must probably have an inspection. I do not see how otherwise it can be settled, if 2778 you are going to permit this power at all. I should apprehend that it would not happen in many cases that you would have this distinction between different plotted areas. There may be some agreement come to when they are before the Board, fighting, but the very Clause assumes hostility, and we must give power to the Board, if, as is very likely, such cases arise, and there is a distinction between the necessity for burning on one part of a farm and the necessity for burning on another part of it, while the tenant applies for permission to burn the whole. I apprehend that this power would exist either under the Bill as drawn or under the Amendment.

Mr. JOHNSTON: For the sake of clarity to those who do not understand these legal differences, will the right hon. and learned Gentleman tell us briefly what is the distinction between "prescribe the area and portions of the lands" and "specify the lands"? What is the idea behind making what appears to us to be a useless alteration?

The LORD ADVOCATE: "Specify the lands" seems to us very much simpler than "prescribe the area and the portions of the lands." I have some doubt as to what the latter means. If it was simply "prescribe the area" on which burning was to take place, it would be nearer what we intended. The more normal word to use is "specify," because it is simply a specification. There are the lands, and there is really no prescription in any proper sense of the word at all. There is really no great choice between the words, and I can assure the hon. Member that there is no ulterior motive behind the Amendment.

Mr. SULLIVAN: I think the Clause as we have it is much clearer and more workable than it would be if amended as now proposed. The Bill says: "Any such order may prescribe"—

The CHAIRMAN: We have already decided that the words proposed to be left out shall come out, and we are now dealing with the insertion of the proposed words.

Sir MURDOCH MACDONALD: Is there not an error in the reading of the Clause as it is now proposed to be amended? It is suggested that after the 2779 word "order" the words "shall specify the lands" shall be inserted, and in the Amendment it says "on which" and then goes on and adds "and shall prescribe." Does it read?

The LORD ADVOCATE: If the Clause were amended as proposed, it would read: "Any such order shall specify the lands on which and shall prescribe the conditions subject to which muirburn may be made," and so on.

Sir A. SINCLAIR: There is one other word altered. Under the orginal Bill, it said "Any such order may prescribe the area," and in the Amendment it says "shall specify the lands." What is the effect of that change from "may" to "shall"?

The LORD ADVOCATE: Clearly the order would not be of much use unless the Board said where the burning was to take place. It does not matter whether it is "may" or "shall" They must necessarily say on what area they are authorising burning to take place, and I think it is much better to make it "shall," and that they shall have a duty to say exactly where the burning shall take place. It is merely to save dispute.

Question, "That those words be there inserted," put, and agreed to.

Major STEEL: I beg to move, in Subsection (2), after the word "conditions," to insert the words "including conditions for the efficient control of the burning." The object of these words must be obvious to everybody. In this case, when the order has been issued, the tenant will do the burning, and the burning will be done probably by the shepherds, who in the month of April are very busy men. In the beginning of April, in many counties, the herds are coming from the low lying land where they were in the winter; and in the middle of April the regular hill lambing has begun, and while that is going on the shepherds are extremely busy. The shepherd goes out and sets light to the heath, and then goes off to look after the lambing. If the ground is sufficiently dry, and there is a good hot sun, which there often is in April, and a good stiff breeze, the fire which he has created spreads very rapidly, and, unless 2780 there is somebody to control it and put it out, it may very easily spread and get out of hand altogether and burn fences or even plantations. What we want to assure by this Amendment is that when the Board issues an order there shall, in that order, be conditions which will ensure that there is a sufficient staff of men to control the burning, in order to prevent a fire getting out of hand and possibly doing a great deal of damage.

The LORD ADVOCATE: The Committee must think that I am repeating arguments very often, but I do so only because I think it right and necessary. This is really a drafting Amendment. The question is whether, as the Bill stands, it is quite clear that the Board would have such power. I am of the opinion, clearly, that they must have such a power. Look at what they have to do. The words that we have just inserted make quite clear the two different parts of their task. They are not only to specify lands and to give leave to burn on those lands, but to prescribe conditions. To prescribe conditions for what? For regulating muirburning. I assume that every one who has ever seen muirburning would understand that one of the most obvious and necessary conditions would be that there should be efficient control of the fire. It seems to be one of the primary conditions which the Board must consider. I suggest that quite clearly, among other things, the efficient control of burning is necessarily included in a direction to prescribe conditions for regulating muirburning. I suggest that it is a dangerous thing, when you have a general word prescribing conditions, to specify particular conditions. Anyone familiar with the construing of Acts of Parliament by Courts of Law will know that if you begin qualifying or limiting the general word by specifying particular things, the Court is rather apt to think that there must be some special reason for the qualification; they are rather apt to consider that the general word is meant to be limited in some way or other. I think that the Committee are satisfied, as I am, that one of the most obvious conditions that the Board will consider, under the phrase "prescribing conditions for regulating muirburning," is that of regulating the 2781 fire. That is one of the most obvious things that they must consider, under the Bill as it stands.

Major STEEL: With that assurance that the words of the Amendment are not necessary—we were a little doubtful about it—I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. SMITH: I beg, to move, in Subsection (2), to leave out the words "the same," and to insert instead thereof the words "such burning by the tenant."

Mr. JOHNSTON: What is the meaning of this Amendment? It is not good enough that Amendments should simply be slung at us without explanation, when they may impose penalties on great classes of people in Scotland, without the Committee knowing what is intended.

Mr. SMITH: My point in moving the Amendment was to make clearer what is the intention of the Bill. There- is nothing behind it.

Mr. JOHNSTON: Could we hear the Lord Advocate on the subject?

The LORD ADVOCATE: Yes, but not because I am anxous to talk any more. This is purely a drafting Amendment. Undoubtedly, the purpose of this Clause is to allow a tenant the means of getting authority to burn contrary to the terms of his lease. But that does not mean that the tenant is thereby to be allowed to burn at any period which is not authorised under Clause 1. This really is consequential on the limitations of Clause 1. The words "such burning" refer you back to Clause 1, and make quite clear, from the drafting point of view, that this is merely an authority to allow a tenant, who is otherwise precluded by the terms of his lease, to burn, subject to the limitations of Clause 1.

Amendment agreed to.

Clause, as amended, ordered to stand part of the Bill.

CLAUSE 3.
—(Offences.)

Any person who makes muirburn or sets fire to or burns the heath on any lands in contravention of Section one of this Act shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding five pounds or to imprisonment for any period not exceeding thirty days, And in the case of a second or subsequent 2782 offence to a fine not exceeding twenty pounds or to imprisonment for any period not exceeding three months.

If in any proceedings against the occupier of any lands for an offence against this Act, it is proved that muirburn was made or that the heath was burnt or set fire to on such lands in contravention of this Act, such occupier shall, unless he proves the contrary, be deemed to have made such muirburn or to have burnt or set fire to the heath.

Sir J. GILMOUR: I beg to move, in Sub-section (1), after the word "heath," to insert the words "or causes or procures the making of muirburn, or the setting fire to or burning of the heath." This is an Amendment designed to render liable the person whose servants burn with his sanction or on his instructions in contravention of the Act. It is thought that the words of the Amendment should be inserted so as to make quite clear that if the burning is done definitely with the authority of the proprietor or of the tenant, the true author of the fire ought to be prescribed.

Amendment agreed to.

Mr. JOHNSTON: I beg to move to leave out Sub-section (2). We come now to what I think is a rather important part of the Bill. (Interruption.]

Mr. KIRKWOOD: On a point of Order. What is it that the Lord Advocate is saying to my hon. Friend?

The CHAIRMAN: No doubt what he has said is for the general convenience of the Committee.

Mr. JOHNSTON: The Lord Advocate has said that, if I am not very long in my speech, he will be pleased to accept the Amendment. I am very sorry to find that my hon. Friend the Member for Dumbarton (Mr. Kirkwood) does not agree to that, because when I look at the Amendment Paper, I find that his name is attached to this Amendment.

Mr. KIRKWOOD: The reason why I disagree with my Colleagues is that he said he was making arrangement with our opponents that his speech should be very short. I take exception to that because it is time that someone put some life into this Committee this morning. Never in the history of Great Britain, France, or Ireland has such progress been 2783 made as has been made in this Committee; and you, Mr. Chairman, are the chief engineer.

The CHAIRMAN: I am not going to argue with the hon. Member. His own Amendment is about to be accepted.

Mr. JOHNSTON: I will not put it as high as that it is about to be accepted. The Lord Advocate has indicated that he personally approves of the Amendment, or that it will receive a favourable recommendation to the Committee from himself. Under Sub-section (2) any occupier or tenant, or anyone who causes muirburning in contravention of the Act, shall be held guilty of an offence against the Act unless he proves to the contrary. I trust that on this occasion, at least, we shall have the support of my distinguished legal friend, the hon. and learned Member for Argyllshire (Mr. Macquisten). It seems to me that this is a new principle in law—that a man has to prove himself innocent, and that it is not for the Crown to prove him guilty. The tenants whom the hon. and learned Member for Argyllshire represents in this House are, under this Bill, to be made liable to punishment unless they can prove their innocence. That is an extraordinary proposition. What are the facts on many of those estates? Who could prove that it was not a gipsy encampment that had caused the fire on a heath or muir? Or, as an hon. Member suggests, Girl Guides or Boy Scouts? Then there are sparks from railway engines. Every year they set fire to heaths. What about alleged sportsmen going about with guns and pipes or cigars or cigarettes? The fire might, indeed, be caused by a gamekeeper. Why should it not be a tourist, or an artist, or a surveryor, or anyone else who causes the fire? Yet, whoever it may be, the poor tenant is judged to be guilty unless he can prove his innocence before a court of law. That is a proposition which no one in his senses is prepared to defend. If a man's house is set on fire has the tenant to prove that he did not set it on fire? Suppose that the hon. and learned Member for Argyllshire were walking up Whitehall and a burglary were committed there, has he to go into a court and prove that he did not commit the burglary?

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The LORD ADVOCATE: He does not own Whitehall.

Mr. JOHNSTON: But there have been many burglars in Whitehall in my time. This Sub-section seems to establish something quite new. So far as I know, no-other class of people are compelled to prove their innocence. It is the duty of the Crown to prove them guilty. I object strongly to the tenant farmers and agriculturists of Scotland having this new imposition put upon them.

The LORD ADVOCATE: I was. rather amazed on reading in the Memorandum of the Farmers' Union to find the following sentence: "Section 3, Sub-section (2), introduces the vicious principle of holding a man guilty until he can prove his innocence. This is indefensible and unjustifiable except in very exceptional circumstances, and there is nothing in the circumstances attendant on heather burning sufficient to justify such a departure from established law." It so happens that the established law is rather different from what that sentence suggests, because under Section 5, of the Act of 1772–1773, reads "the tenant possessor or occupier of the ground upon which such muirburn shall be made or discovered within the forbidden time, shall be deemed and taken to be guilty of the offence and shall be liable to the special penalties aforesaid unless such tenant possessor, or occupier, shall prove to-the satisfaction of the Court before which he, or she, shall be prosecuted, that such fire was communicated from some neighbouring ground, or was raised upon his or her ground by some other person not in his or her service or family." Therefore, under the existing law the tenant or occupier has not only to prove that he did not do it himself, but has to prove who did it, before he can get out of the presumption. Accordingly, this Clause of the Bill is a distinct modification of the existing drastic law as regards this subject, and only puts on the tenant the burden of proving that he did not do it himself. The question then arises as to whether it is proper that even that presumption should be retained as regards this branch of the law. Here again, I differ from the suggestion of the Farmers' Union. Such presumptions are familiar in certain branches of the law in this country. There are statutory offences, such as offences under the Food and Drugs Act and cases concerning bad meat, and so forth, where there is a presumption as against a person who is running a 2785 shop. The reason is that in those cases the person against whom such a legal presumption is made, is in complete control of the business, and may not unfairly be held primarily responsible for what is found on the premises constituting a contravention of a particular Act. The situation in the case of the agricultural tenant of a farm is not quite the same. One cannot say that he has complete control. Therefore, it has suggested itself to the Government that would not be fair to extend that principle to the agricultural tenant and that the reasons for raising such legal presumption in cases where it is familiar do not apply to the present case. The hon. Member for Dundee (Mr. Johnston) gave instances which are quite apposite of a landlord's gamekeeper, or a tourist, or anybody else who might happen to light a cigarette or a pipe and throw away the lighted match. Keeping an eye on a large area of hill ground is a very different matter from knowing what one has in a shop. For these reasons, the Government have come to the conclusion that they should advise the Committee to agree to the deletion of this Sub-section. I was desirous, however, of making clear that this Sub-section in itself, proposed a notable modification of the existing law. It is right that that fact should be made known.

Sir R. HAMILTON: I congratulate the Government on having accepted the Amendment, and I am sure the Committee has heard of the decision with great relief.

Mr. MACQUISTEN: I concur entirely with what has been said. These old laws were made when people were tied down to one locality, and when there were no motor cars running about. A section of the kind which has been quoted takes one back to the time of William the Conqueror, and is quite out of date in regard to a Bill relating to Heather Burning—[Interruption].

Mr. JOHNSTON: On a point of Order. Is it right that Members of the Committee should howl down the hon. and learned Member for Argyllshire (Mr. Macquisten) who is only offering one or two interesting observations on William the Conqueror and heather burning.

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Question, "That the words proposed to be left out, stand part of the Clause," put, and negatived.

Clause, as amended, ordered to stand part of the Bill.

Clause 4 (Repeal 13 Geo. 3. c. 54) ordered to stand part of the Bill.

CLAUSE 5.
—(Short title and extent).

"This Act may be cited as the Heather Burning (Scotland) Act, 1926, and shall extend to Scotland only.'

Sir J. GILMOUR: I beg to move, at the beginning, to insert a new Subsection: "(1) In this Act the expression 'tenant' means a tenant for agricultural or pastoral purposes." This Amendment is to make it clear that the Act will not apply to sporting or shooting tenants.

Amendment agreed to.

Clause, as amended, ordered to stand part of the Bill.

Motion made, and Question proposed, "That the Bill, as amended, be reported to the House."

Mr. WESTWOOD: This is an instance where, as a result of both sides meeting together and discussing matters, we have been able to arrive at a satisfactory conclusion. It seemed likely at one time that the sittings of the Committee would be interminable, and I have no doubt they would have been, had the Government not seen their way to accept the last Amendment moved by the hon. Member for Dundee (Mr. Johnston). It only proves that the Scottish Committee can carry on its work in a very harmonious way when we have discussions of this kind between the two sides, and I trust the same spirit will be shown in the future and that we will have some progress not only in burning the heather but even in burning some of the landlords.

Question put, and agreed to.

Bill, as amended, ordered to be reported to the House.

Sir J. GILMOUR: I beg to thank the Chairman.

Committee rose at Eight Minutes after Twelve Noon.

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THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:

Brown, Mr. James(Chairman)

Adamson, Mr. William

Advocate, The Lord

Barr, Mr.

Broun-Lindsay, Major

Buchanan, Mr.

Couper, Mr. J. B.

Cowan, Mr.

Craik, Sir Henry

Crookshank, Colonel

Dalkeith, Earl of

Davies, Major George

Elliot, Captain

Fanshawe, Commander

Gilmour, Lieut.-Colonel Sir John

Graham, Mr. Duncan

Hamilton, Sir Robert

Harvey, Mr. Barclay-

Henderson, Mr. Thomas

Hunter-Weston, Lieut.-General Sir A.

Hutchison, Sir Robert

Johnston, Mr.

Kennedy, Mr. Thomas

Kirkwood, Mr.

MacAndrew, Major

Macdonald, Sir Murdoch

Macquisten, Mr.

Mitchell, Mr. Stephen

Murnin, Mr.

Ritson, Mr.

Scrymgeour, Mr.

Shaw, Lieut.-Colonel Mclnnes

Sinclair, Major Sir Archibald

Smith, Mr. Robert

Solicitor-General for Scotland, The

Sprot, Sir Alexander

Steel, Major

Stephen, Mr.

Stewart, Mr. James

Streatfeild, Captain

Stuart, Mr.

Sullivan, Mr.

Thorn, Lieut.-Colonel

Thomson, Mr. Frederick

Watson, Mr. Maclean

Weir, Mr. McNeill

Westwood, Mr.

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