HC Deb 28 August 1914 vol 66 cc331-42

Considered in Committee.

[Mr. MACLEAN in the Chair.]


Before we enter upon the Com- mittee stage I ask your leave, Sir, to intervene in order to state that it is not the intention of the Government to go through the Committee stage to-day. It is absolutely necessary that the Committee stage of this Bill should be taken in the course of next week. With the leave of the Committee, what I ask to-day is to be permitted to state now in the clearest terms I can what is the effect of the criticisms which have been made on the Second Reading upon the mind of the Government, and what, therefore, is the extent of the modifications of this Bill which they are intending to propose in Committee. I think I can state that within a short compass of time. I shall now state as clearly as I can for the information of the Committee what is proposed, and I have no doubt that statement will appear in the OFFICIAL REPORT issued tomorrow morning, and it will be a record of my statement which may be of convenience to hon. Members.

There were two main points which were again and again made in different forms in the course of the discussion on the Second Reading of this Bill. Both of them are very important points, and I have had the advantage, along with the Chancellor of the Exchequer, this morning, of being in consultation with a number of Members of this House and others, in order that we might gather opinion as rapidly as possible and endeavour to arrive at a general conclusion on those two main points. Those two main points are these: First of all, there is the large and important question of whether or not the special powers which this Bill would confer upon the Court ought to be exercised in connection with the rights arising under future contracts; or whether, on the other hand, the special powers which this Bill confers upon the Court should not be limited, or how far they should be limited, to past in distinction from future cases. That is one large and very important question. It may be said that if you allow those exceptional powers to exist in the case of future transactions you are thereby, at the very time you are trying to facilitate credit in this country, undermining and belittling that credit.

The other main point is that since the Court is to be in some form or other ap- pealed to in order that these special powers may be used, which of the parties to the transaction is to have the duty of making appeal to the Court—on whom should the initiative lie? These are the two main questions which were raised, and I am glad to say that both of them have been thoroughly and helpfully discussed this morning by various Members of the House who were good enough to meet us on the matter. I am glad to be able to say that, so far as our inquiries go, we think we see our way to a modification of this Bill which I hope is likely to meet with general approval; because the principle of the Bill is that this sudden strain, due to the War, having fallen on the backs of certain persons, they ought to be able to appeal to the Court for appropriate relief—assistance which will not be disputed by anyone. The difficulty is not in principle: the difficulty is in applying it. Having said that, may I indicate as plainly and as clearly as I can what the changes are in substance which the Government intend or propose to ask the House to make on the Committee stage of this Bill? I believe it will be convenient if I take them categorically, one, two, three, four, and five, not binding myself to the exact words, but with the object of putting them plainly and fully so that they may be followed by anybody who has studied the Bill, as many people outside the House have done, as well as Members of this House themselves.

I will pursue the course of taking the Bill and going through it in the order in which it is printed, though it be that I may mention a comparatively trifling point before reaching a bigger point. Looking at Clause 1, the most important point is the first Sub-section, which is divided into paragraphs (a) and (b). Paragraph (a) substantially deals with the powers which we propose to give to the Court to insist that before the judgment or order is executed the person who has got that judgment or order shall apply for leave to act upon it—for instance, to levy or exercise any form of execution. We propose to leave that exactly as it stands, but we propose to meet by appropriate words this case. That is my first point. It has been pointed out to us that it is a needless and irritating complexity of procedure if we first insist that a plain- tiff should pursue his action in the Court and in the course of time prove his case and get judgment, and that after he has got judgment he should then be required to apply for leave to execute the judgment forthwith. We accordingly propose to make such a change in the Bill as will enable rules to be made by which in the case of actions that have not already reached their final stage it shall not be necessary for separate applications to be made, one application for judgment and then, subsequently and separately, an application for leave to execute. But the party bringing the action may forthwith, if he has not yet served the writ, and if the action is already pending, may now by an intermediate notice tell the defendant in plain terms that as soon as the plaintiff gets a judgment he will then and there ask for execution unless the defendant appears, and, in the terms of this Bill, shows good cause why execution should be delayed.

That is the first point. The effect of that will be, I think, to avoid unnecessary complications. In that connection let me say it is our intention under the rules that there should appear upon the face of any notice that is given to the debtor a statement in perfectly plain terms, not in the necessarily elaborate language which an Act of Parliament has to do with, that "such and such are your rights in the event of this judgment going against you, but," if notice is given, such as I have indicated, "it will be for you to come and show why this judgment should not forthwith be executed." I think that that change made in the Bill will greatly relieve the anxiety of some who thought that it was unnecessarily complicated. I come to the next point. Passing to the second paragraph (b), there is a reference there to "distress." It was pointed out in the Debate that "distress" is a word that is used not only to indicate a landlord's right to seize the property of his tenant without the leave of any Court, but also to describe the remedy which sometimes exists for the recovery of rates and other cases. I see an ex-Lord Advocate present (Mr. Scott Dickson), and I am aware that in Scotland the rule is not quite similar. In this matter we propose to take a leaf out of their good book and assimilate our law for the time being very much to the admirable example set us in Scotland. What we intend to do is this: Wherever distress is due to an order of the Court, then Sub-clause (a) should apply, and that the "distress" which we refer to in Sub-clause (b) should be limited to the ordinary landlord's distress, which in the ordinary way is available without asking for the leave of the Court. In the third place—and this I think is a matter of great importance—we propose to ask leave to strike out of the Bill altogether five words in Clause 1, Sub-section (1) (b), as follows, or take any other measures. Those words created naturally some anxiety in many quarters. They are wide and general words, and one view of them was that they might perhaps prohibit the issue of a writ or the writing of a letter demanding payment. That was not in the least our intention. Rearing in mind the criticisms made, we think it would be better if we endeavoured to make a specific list of the special cases to which we do intend the Bill to apply, and not to use any general words whatever. In order to make it quite clear we shall consider adding after the words "distress" and "foreclosure," etc., the words "or exercise any right of re-entry," which is intended to be covered. In the fourth place, we think, as the result of the consultation, that it would be better if, instead of trying to say in the Bill exactly what the Court is to which applications could be made, to call it a Court of competent jurisdiction and that rules should be made as to what that Court is. It has been pointed out that there may be cases where a Court of Summary Jurisdiction is a much better Court than a High Court or a County Court. It might very well be so. If we say it is to be a proper Court, and then define it by rules, we can alter those rules in the light of experience, and we shall not find ourselves, by an unintentional mistake, faced by an Act of Parliament.

I come to the fifth, and what is in some respects the biggest and most important point, which is this: Are these new provisions to apply to future cases, or are they only to be available as to past cases? It seems to us that the right principle to lay down is this: With one exception, which I am going to mention, we should propose that this Bill should have no application at all to rights which arise under contracts which were entered into after the War began. The substantial intention of the Bill was to relieve people who had entered into contracts before the War began from the wholly unexpected calamity of having to carry on those contracts punctually with a very serious and sudden situation facing them. Therefore-we should propose to provide that the Bill has no application at all to rights which arose under contracts since the War began. The exception which we propose-to make, and this is a matter which has been most carefully considered, is in the case of distress, or the right of re-entry, and, generally speaking, the right to turn the tenant out of his house. We think there, even though you are dealing with future agreements, it would be desirable for the time being to assimilate our practice in England and Ireland with that of Scotland more or less, namely, that there should be the power in the Court ort the particular grounds here indicated to-give some latitude before the sometimes terrible punishment of instant distress or instant ejectment falls upon the tenant, and that that should be so both as regards future lettings and past lettings. The ground has got to be in substance that the tenant, though otherwise in a position where he might have been expected to pay, has been rendered unable immediately to make payment by reason of circumstances attributable directly or indirectly to the War. It is not intended to give any wider discretion than that.


Where otherwise he would have been in a position?


Yes, where otherwise he-would have been in a position. In this matter I am sure we may trust, with the machinery here which will be rendered available, to the good sense of those who will administer such a Statute to draw a sharp distinction between the shirker, or, as he was described by the hon. and learned Gentleman (Mr. Duke) the other day, "the slippery fellow" who is looking out for an excuse as to why he should not discharge an obligation, and the genuine case in whose instance alone it is really intended to provide this remedy. There is one further point, the sixth, and it is this, and it was pointed out by the hon. Member opposite from Ireland: That view was that if all this is to be limited to cases where distress is to be levied or possession is to be claimed for the purpose of enforcing the payment of money—namely, rent—that the whole flank of your Statute might be turned by a landlord who said, "I will give you notice. I say nothing about whether you pay rent or not, but I desire to terminate the agreement, and at the end of the notice I will apply for an order of ejectment." I am far from saying that because this country is involved in war everybody should be at liberty to stay indefinitely in a house without paying rent; it would be a ridiculous proposition. On the other hand, I do think that we ought, under these circumstances, to give the magistrate some discretion to inquire whether he really ought to make an order for ejectment in those cases straight away, or whether it would not be fair, in view of those special conditions, to attach some condition and to see that this power is not used harshly and unfairly. If you do not do that it is no good saying that a landlord shall not distrain or shall not exercise the right of re-entry for the purpose of getting rent, because he will give notice to terminate the agreement and turn the tenant out. Our object, therefore, in that regard, is to be certain that an unreasonable landlord should not be able, by a side wind, to accomplish that which it is the main object of the Statute to prevent. With those changes which I have indicated under six heads, and which I do not think would be found to involve elaborate changes in the language of the Bill, though they are very important, I trust it will be found on Monday that we have made such modifications in the Bill as really meet the criticisms that were urged.

The scheme and the principle of the Bill are the same as ever, and it is because there is general agreement that that is the position it has been possible to make these suggestions with some hope of general acquiescence. If we do it in this way it will be possible for us to provide for these cases by rules, and we shall be able to a certain extent to adjust the machinery to-fit the real need as it is found to be. I trust that so far from undermining credit the Bill will give every encouragement for future transactions, and protect people from the unmerited hardship of being held strictly to their bargains in the case of transactions entered into which they cannot perform because of the special emergency. I have made this statement, not with the idea of initiating discussion, but for the purpose of giving information, in order that the House may, after listening to or reading what I have said, gather at once the character of the changes which we propose to make in the Bill in Committee when we take it on Monday. We shall, of course, put down the Amendments as early as possible. In these circumstances I beg to move, "That the Chairman do report Progress, and ask leave to sit again."


I think I ought to say that the Attorney-General has-made a statement with the assent of the Committee, but I hope it will not lead to anything in the nature of a general discussion. Any questions asked will, no doubt, be answered, but, I hope, nothing more than that.


Having taken part in the conference to which the Chancellor of the. Exchequer and the Attorney-General were so good as to invite us in consequence of the Debate last night, I should like to say that the discussions which have taken place have left in the minds of those of us who took part in the Debate the belief that the Bill, as it is proposed to be amended, will support credit and prevent the infliction of hardship. Among those who took part in the conference were members engaged in the practice of the law and business men, and I think there was common agreement between us, after considerable discussion, that the course the Government propose to take is a businesslike and satisfactory one.


(indistinctly heard): In Ireland there are long intervals between the sittings of the County Courts. Who" will have power to deal with the decrees of those Courts? In Ireland also we have a special method of procedure, and I should like to know how that is to be dealt with.


Are the hearings of these applications to be in Chambers?



3.0 P.M.


I should like to ask the Attorney-General whether he has considered the suggestion made by my hon. and learned Friend (Mr. Rawlinson) yesterday, that the officer of the Court should be instructed to take into consideration the circumstances of both parties. In certain cases that might be important, as you might be transferring an inevitable loss from one poor person to another. Take the case of a small house property owner. There might be the proverbial widow, absolutely dependent for her sustenance on the rent of a few small houses. Delay to her might be as hard as in another case the undue pressure of a landlord would be to the tenant. At any rate it is a matter for consideration whether the officer of the Court should not be instructed that in these matters he must look at both sides and not decide merely on the proof of hardship on one side without any regard to the possible hardship on the other.


I wish to say a word in regard to property owners in general, but especially small property owners. As the law stands at present, as long as the tenant remains in the property, the owner is compelled to pay Income Tax. I should like to know whether there will be any relief in that respect. It will be very hard upon small property owners if they are called upon to pay Income Tax in full for the year when this loss of rent takes place. It is a matter that the Inland Revenue should take into consideration when they are levying the assessments for considering remissions. There is another point with regard to small property. In respect of property up to £8, there is compounding. Whether the property is empty or occupied, whether the rent is paid or not, the owner is compelled to pay rates. That will be another serious hardship on the small property owner. I agree with the remarks of the right hon. Gentleman the Member for West Birmingham (Mr. Chamberlain) with regard to the hardship on many small property owners. I do not know whether this Bill will cover the owners of such property as that to which I have referred, so as to relieve them of the rates. If they are compelled to pay the rates and at the same time under this Bill are not in receipt of any rent, they will suffer a serious injustice.


I understood the Attorney-General to say that applications under this measure would be made in Chambers. I would point out that in Ireland they have a somewhat different procedure. Applications in Chambers in England mean applications to a master, or applications in private. In Ireland, for some reason I cannot understand, there is a distinction made in the High Court-between a judge sitting in Chambers and a judge sitting in Court, but the tribunal in both cases is the judge. If the Attorney-General wishes to have the same law on this subject in Ireland as in England it would be necessary to bring this about by some form of express enactment. In regard to the point made by my hon. Friend above the Gangway as to County Court judges, the Act does not apply. I would like to express my satisfaction at the answer which the right hon. Gentleman made as to the course the Government proposes to adopt, for I believe the Bill will be very much improved by the fact stated.


I should like to support the views of the hon. and learned Gentleman who has just spoken. So far as Scotland is concerned, we do not have the procedure of proceedings in Chambers, and having regard to the recent decision of the House of Lords, I think there would require to be special provision as far as Scotland is concerned in order to give effect to the suggestion. I do not know whether it can be done by incorporating it into the rules, but if the Lord Advocate takes the matter in hand and keeps the point in view, I have little doubt the matter will be attended to. I quite understand the difficulty in making the necessary Amendments in view of the time, but I am quite certain that the right hon. Gentleman will be able to make such provision, where necessary, to secure that the administration of the law in Scotland in this matter shall be the same as in England.


I would like to suggest, having regard to the importance of this Bill, and the importance of the Government Amendments, that in addition to the Amendments put down to-day, and circulated with the Papers to-morrow as a White Paper, a further copy of the Bill should be circulated showing the Bill as amended by the Government Amendments. I can only congratulate the right hon. Gentleman on the skilful way in which he has conducted both our long meeting this morning and the discussion afterwards here. After all, I imagine nobody realises the number of interests affected by this Bill. I have given some time to the study of it, but within the last ten minutes one or two absolutely fresh points have been submitted to me which certainly have not been considered by me, or, I think, by anybody else. For these various reasons I am very anxious that everybody should read this Bill to-morrow, and bring the experience of their own particular case to bear, so that following the discussion on Monday we may have, what the Government desires, a Bill that is useful and in no way injurious.


One hon. Member asked how far proceedings covered by this Bill will take place in Chambers. It was my intention that the proceedings should, so far as possible, be in private and not in public. I gathered from the two hon. Members opposite that there may possibly be some difficulties in Scotland and in Ireland. I will gladly do my best to get myself informed in relation to the Irish aspect of the question presented. So far as Scotland is concerned, I have the advantage of the presence of the Lord Advocate. The power to make rules is to give full effect to an Act, and it seems desirable to extend the power to make a rule that so far as possible proceedings under this Act shall not take place in open Court.


Having regard to the decision of the House of Lords, the proceedings must be in public, otherwise they will be ultra vires.


I was endeavouring for the moment to use language which people outside will understand. I am fairly familiar with the decision of the House of Lords. I think it desirable that there should not be unnecessary publicity or the formalities of the open Court. I am not suggesting the upsetting of the Constitution. The hon. Gentleman opposite asked a question with regard to the registering of judgments. The Bill as it stands will not affect that. At any rate, I do not think that that ought to be affected. As I understand it, a registered judgment may give a man a lien, and it may make some difference whether he registers to-day or next day. It seems desirable that there should be a provision in the Bill which makes certain that the right to register judgments shall not be affected by the fact that the execution of the judgment is deferred.

Mr. JOHN GORDON (Londonderry)

made an observation which was inaudible in the Reporters' Gallery.


We will see that provision is made that that point is covered. As regards the Court to which application ought to be made, I have heard what was said by the hon. and learned Gentleman the Member for Cork City, and his point will really be dealt with by saying that the Court is to be a Court of proper jurisdiction.