§ The Solicitor-GeneralI beg to move, Amendment No. 13, in page 6, line 48, at end insert:
§ protected tenancies. Grounds for possession there are contained in Schedule 3 to the 1968 Act, and Schedule 1 of the Bill has introduced into that Schedule 3, case 3A which again gives a ground for possession where the tenant has misused the furniture.
§ Without seeking to anticipate the argument which may be used by right hon. and hon. Members of the Opposition, Amendments Nos. 23 and 24 seek to add a similar provision there. That is to say that as an additional ground for possession there shall be a situation where the tenant has permitted the furniture to deteriorate by reason of an omission.
§ As I understand it, the point between the two sides is a narrow one: where should the balance lie between protecting the landlord's legitimate interest in his property and protecting the tenant's legitimate interest in his home? Already we propose that the protection for the landlord should extend beyond vandalism to any case where there has been ill treatment of the furniture. If the landlord wishes to protect himself beyond that, he can insert in the tenancy a covenant to the effect that the tenant shall carry out certain specified steps to protect the furniture.
§ Where the landlord does not do that, to say that the tenant shall be in danger of losing his home if the furniture deteriorates in consequence of an omission—and, on the wording of the sub-amendment, any omission—would be to impose a very exacting burden upon him with a very onerous penalty if he fails to discharge it. In every home there is some damage to furniture which would not arise if everyone observed the highest standards of care and no one made any 689 omission, but for most of us the penalty is not to lose our home.
§ The question is: where do we strike the balance? Amendment No. 13 seeks to accommodate what was said in Committee, and I hope that the House will think that the balance is now struck in the right place.
§ Mr. Graham PageThe Solicitor-General is rather like the man at the top of the orchestra at timpani who, every half an hour during the symphony, strikes the triangle with a ping—and that is all he does. I had hoped that the hon. and learned Gentleman's ping would be very favourable this time.
I agree with Amendments No. 13 and 49 and will say nothing further about them. I had hoped that the Solicitor-General would be able to welcome the sub-amendment to Amendment No. 13 and also Amendments Nos. 23 and 24. I believe that he has misunderstood the purpose of the insertion of the words "any act or omission". He talked about permitting a deterioration. That is not what the Bill now says—particularly the case in the schedule. The Bill speaks of deterioration by ill treatment. It was said in Committee that the word "ill treatment" implies positive action. This is where we object to it being treated as just that. It may be that deterioration arises by culpable neglect. It has been recognised, for example, that failure to lag water pipes may lead to a burst in cold weather, whereas a good tenant treating the property correctly would lag. It is ill treatment by failure to do the things a good tenant would ordinarily do that we want included in this case.
It will be very difficult for any landlord, when he finds furniture damaged, to prove that the damage has arisen because of an act of positive ill treatment. There may be many cases where the tenant should look after the furniture and should not damage it by acts of omission or neglect. If such conduct continues, that is the sort of conduct one should have in mind in this case—a case that is supposed to be on the same ground as neglect and waste to the structure in the case of the unfurnished letting.
As the hon. and learned Gentleman will know, in the case of the unfurnished 690 letting the word "waste" is used. "Waste" means neglect as well as an act of commission. To put the phrase "any act or omission" after "ill treatment" is taking the matter no further than is recognised in the case of the unfurnished dwelling when the word "waste" is used, because "waste" does not necessarily mean a negative act. I ask the hon. and learned Gentleman to look at this again.
I am sure that the case will not be as effective for unfurnished dwellings as the existing case in the Rent Act is in relation to furnished dwellings, in giving toe landlord the right to apply to the court for possession when his property is being ill treated, remembering that when he does apply to the court this is one of the cases in which the court uses its discretion, but I think it is being precluded from using its discretion by the term "ill treatment" which implies such a positive act.
§ Mr. LawrenceI rise only to add one thing to the point made by my right hon. Friend the Member for Crosby (Mr. Page). I did not understand the expression "ill treatment" to be intended merely as a description of a positive act. There does not seem to be any point in pursuing the case which my right hon. Friend is making if the hon. and learned Gentleman means "ill treatment" to cover an act or omission, even though that is not specifically so stated. Therefore, may I ask the hon. and learned Gentleman to give us a definition of "ill treatment", when it may be that we shall then all be happy?
§ The Solicitor-GeneralA formal definition of the term "ill treatment" is clearly something which the hon. Gentleman cannot expect me to give. This is something which the courts obviously work out over a period of time. Anything which would now attempt to narrow that would be out of place. Clearly what is between us is a matter of degree. If what is intended by the sub-amendment is what was stated by the right hon. Member for Crosby (Mr. Page), that is not the effect of the sub-amendment which has been put down. That speaks of "any … omission". A tenant who was guilty of any omission in consequence of which furniture deteriorated would be in danger of losing his home.
§ Mr. Graham PageIt means ill treatment by omission—and again I use the lagging of pipes as an example. It does not mean any omission. It means any ill treatment by omission.
§ The Solicitor-GeneralThat does not seem to be what the amendment says. It says "any act or omission". But I think it is becoming clear what is in the minds of all of us. If there is to be some clear positive obligation on the tenant to take certain steps to preserve the furniture, that ought to be stated in the covenant in the tenancy. Beyond that, it is very much a matter of what the courts would regard as being proper treatment. Certainly, the intention is not that there should be any very high duty of positive attention to the furniture. It is a little difficult to see what in furniture is the equivalent of the lagging of pipes.
1.30 a.m.
If the right hon. Gentleman says that, of course, the courts will interpret this in a reasonable way because they have a discretion, that would be a justification for almost unlimited obligations. The scheme of the Bill, like previous schemes in relation to landlord and tenant law, is that the court shall have a discretion when certain clearly defined situations arise, and to say that we need not define the situation very clearly, that we can leave it fairly loose because the court has a discretion, is not the way in which Parliament has approached these matters in the past.
§ Mr. LawrenceThere is a charade—perhaps it is unkind to call it that—which is followed in the courts when the judge says, "Parliament in its wisdom clearly intended this or that". That presupposes that the juriciary expects some indication of intention from the legislature. For the hon. and learned Gentleman to say, "Let us leave a definition to the courts, and they will work it out in due course" is not to do that which the judiciary normally expects the legislature to do.
May I, therefore, press the matter a little more closely? The line between us, as the hon. and learned Gentleman says, is narrowing fast, but there remains a lack of clarity on what is in the Government's mind in opposing our sub-amendment (a) and proposing their Amendment No. 13. Do they have in mind something wider than a positive act in the meaning 692 of the phrase "ill treatment"? If it be their intention that the expression "ill treatment" should mean something wider than a positive act, I think we could all be happy.
§ The Solicitor-GeneralI think that the furthest I can go to make the hon. Gentleman happy—of course, I like to make people happy—is to say that it would be an obligation on the tenant to use the furniture properly. I cannot go beyond that. It is not the intention to impose any high positive duty upon him, or, indeed, any positive duty. If that does not satisfy the hon. Gentleman, that is the issue between the two sides, I fear. Beyond that, it seems to me that a great deal can be done by leaving it to the courts.
§ Mr. PageLet us suppose that the tenant leaves a cigarette on a nicely polished table. That is not, I suggest, an act of ill treatment. It may be an act of neglect or default, but not what one understands necessarily as ill treatment. I should have thought that that sort of act of omission—omitting to pick up his cigarette again and smoke it—was not necessarily covered by "ill treatment".
§ The Solicitor-GeneralI could not conceive of a clearer act of ill treatment. I am delighted to see that the right hon. Lady the Member for Finchley (Mrs. Thatcher) supports me there. I suspect that the right hon. Member for Crosby (Mr. Page) is getting into the kind of semantic difficulties which arose in a different context in the Compton Report—that something is not torture unless one enjoys doing it. It seems to me that the example which he gave absolutely makes my case. I could not imagine a clearer illustration.
§ Mr. LawrenceMay I try again?
§ The Solicitor-GeneralThe hon. Gentleman is being very trying.
§ Mr. LawrenceI shall not be hurt by that remark. I take comfort from the hon. and learned Gentleman's desire always to make others happy, so I shall not be made unhappy by it.
There must be a duty on a tenant to take reasonable care of furniture. Therefore, at the very least, ill treatment must mean no negligence. Will the hon. and 693 learned Gentleman give us at least that, that that is part of the intention in the meaning of the expression "ill treatment"—no negligence?
§ The Solicitor-GeneralI think that we have taken this question as far as we can profitably take it. No, I do not equate ill treatment with no negligence. There might well be situations in which we should want to say that something fell into one category and not into the other. I am sorry, but I do not think that we can carry it further.
§ Amendment agreed to.