HC Deb 09 July 1923 vol 166 cc1063-71

(1) Where the landlord of a dwelling-house to which the principal Act applies is in possession of the whole of the dwelling-house at the passing of this Act, or comes into actual possession of the whole of the dwelling-house at any time after the passing of this Act, then from and after the passing of this Act, or from and after the date when the landlord subsequently comes into possession, as the case may be, the principal Act shall cease to apply to the dwelling-house:

Provided that where part of a dwelling-house to which the principal Act applies is lawfully sub-let, and the part so sub-let is also a dwelling-house to which the principal Act applies, the principal Act shall not cease to apply to the part so sub-let by reason of the tenant being in or coming into actual possession of that part, and if the landlord is in, or comes into actual possession of any part not so sub-let the principal Act shall cease to apply to that part, notwithstanding that a sub-tenant continues in, or retains, possession of any other part by virtue of the principal Act:

Provided also that where a landlord comes into possession under an order or judgment made or given after the passing of this Act, on the ground of non-payment of rent, the principal Act shall, notwithstanding anything in the foregoing provisions of this Sub-section, continue to apply to the dwelling-house.

(2) Where, at any time after the passing of this Act, the landlord of a dwelling-house to which the principal Act applies grants to the tenant a valid lease of the dwelling-house for a term ending at some date after the twenty-fourth day of June, nineteen hundred and twenty-six, being a term of not less than two years, or enters into a valid agreement with the tenant for a tenancy for such a term, the principal Act shall, as from the commencement of the term, cease to apply to the dwelling-house, and nothing in the principal Act shall be taken as preventing or invalidating the payment of any agreed sum as part of the consideration for such lease or agreement:

Provided that where part of the dwelling-house is lawfully sub-let at the commencement of the term, and is a dwelling-house to which the principal Act applies, that part shall, notwithstanding anything in the foregoing provisions of this Sub-section, continue to be a dwelling-house to which the principal Act applies.

(3) From and after the passing of this Act, the principal Act shall not apply to a house or part of a house let as a separate dwelling if the house or the part of the house, as the case may be, consists wholly of premises licensed for the sale of intoxicating liquor.


The first Amendment I select is that standing in the name of the Minister of Health.


I beg to move, in Sub-section (1), to leave out the word "actual" ["comes into actual possession of the whole of the dwelling-house"].

This is one of a series of Amendments which must really be taken together. In Committee some doubt was expressed as to the clearness of the word "possession," where it occurs in this Clause, and it was suggested that possession might not really mean physical possession.

Captain BENN

On a point of Order. Am I right in presuming that, having called upon the Minister of Health to move his Amendment, you have passed over the Amendment, which, I assume, is in its right place—to leave out the Clause altogether?



Captain BENN

May I ask you, Sir, to indicate on which Amendment it would be possible to discuss this Clause, which is one of the vital Clauses of the Bill?


An Amendment to leave out the Clause would involve a Second Reading Debate. That is the reason I thought fit to pass on to the Amendment in the name of the Minister.

Captain BENN

In selecting your Amendments, Sir, do you not intend to select any but Government Amendments on Clause 2, which, I have pointed out, is one of the vital Clauses of this Bill?


I do not think I can argue with the hon. and gallant Member as to the way I pursue my duty.


I was just explaining that, in order to meet the criticism that the word "possession" not defined in the Bill, I moved in Committee to insert the word "actual" in this Sub-section, but some further criticism was again directed to the word "actual," and, finally, I thought that, instead of repeating the word "actual," the better plan was to add a new Subsection, which would show what was meant by the word "possession."

10.0 P.M.

Therefore, I am now moving to leave out the word "actual," which was inserted in Committee, and, at the end of the Clause, I propose to move a new Sub-section explaining that the expression "possession" means "actuassion." I have taken advantage of the opportunity also to put in another point, to which some observations were directed in Committee. It was suggested to me that very often tenancies were changed with the consent of the landlord, and that this was a very common process in the case of small houses. It was pointed out that, as the Bill was drafted, in such a case the landlord would come into possession, and therefore the house would go out of control. That was not exactly what I had in view. Therefore, I have put into the new Sub-section the words: and a landlord shall not be deemed to have come into possession by reason only of a change of tenancy made with his consent.


I oppose this Amendment, because it may be a means of drawing the right hon. Gentleman's attention to the exceedingly clumsy draftmanship of the Clause, if the word "actual" be put in in a separate Sub-section, as is now suggested. The difficulty is this: The Bill, as originally drawn, stated that decontrol was to take place when a landlord came into possession. Now he can come into possession technically either upon the termination of the contract, or on the termination of the statutory period which supervenes on the termination of the contract, and, therefore, it is necessary to find which date is intended by the Clause. If the Sub-section referred to be inserted, then this difficulty arises: You then say that "possession," whenever it is in the Bill, means "actual possession." On the spot, a difficulty occurs to me. It is a principle running all through this Bill that in cases where alternative accommodation was a condition to obtaining possession, a landlord who wanted to obtain possession would always have to show that there was alternative accommodation, but you could only have alternative accommodation under this Bill when you had a house in actual possession, that is, a vacant house. If it is a vacant house, it is a decontrolled house.

Therefore you are in the position of saying: You, the landlord, shall not get possession unless you can find alternative accommodation, and you can only find alternative accommodation in a vacant house, and if the house is a vacant house, then it is a decontrolled house. There is the absurdity of this Amendment. May I point out another absurdity. The Law Courts will be greatly puzzled to know what is the meaning of the expression "'actual' possession." We know what "possession" means. We know what "entitled to possession" means, but what does "actual possession" mean? Does it mean physical occupancy? If it means physical occupancy, then what is to be done in the case like this: A tenant dies. He leaves no executors and no will. He leaves no widow. He is a poor person. The people do not for a month or two apply for letters of administration; probably they never will apply. Then the landlord comes up and says: "Your title has ceased, I take possession," and he walks into the house. Is that a decontrolled house or not? There is only one way, Mr. Speaker, and even from the mouths of babes and sucklings wisdom may come, and the right hon. Gentleman, for what it is worth, may take it from me that what I say is sufficient to show how the Clause at all events can be made intelligible, or his wishes made intelligible. I have endeavoured, I hope respectfully and not aggressively, to point out, not from a party point of view at all, but purely from a lawyer's point of view, the difficulties in the Clause as suggested. I wish to point out how, in my opinion, the wishes of the right hon. Gentleman can be more effectively brought about. He can substitute for the word "where" the word "whenever." Cross out all this meaningless verbiage about being in pos- session, and coming into actual possession, and do without the new Clause he has spoken of, and make the Clause run simply this way: Whenever the landlord is in possession —that is all that has to be said." Is in possession" covers the past, the present and the future. "Whenever" applies to a particular event whether past, present, or future, and then he is in this position: Whenever the landlord finds himself in possession of the house then the house is decontrolled. As it stands now it will lead to the difficulty of the alternative accommodation I have mentioned, and lead to the further difficulty that no Court will know how to construe the words that have no legal meaning, namely, "actual' possession."

Lieut. - Commander KENWORTHY

I think we might have some comment upon the very lucid observations of my hon. Friend the Member for South Shields (Mr. Harney). The right hon. Gentleman has exhausted his right to speak, but he can always speak again by leave of the House. The point put forward is a real one, and we should have some elucidation of it from the Minister. What are his thoughts on a matter that will affect many thousands of people?


The first point put to me by the hon. Member for South Shields (Mr. Harney) is a question that ought to be raised on Clause 3 into which it comes properly: more so than here. As regards the second point that the Courts would not know what the word "actual" would mean, the hon. Member is mistaken. The Courts do know what the word means. In view, however, of the fact that I might be questioned on it, I have fortified myself with one or two quotations. Take, firstly, Stroud's Judicial Dictionary. It says: Where the word has a constructive legal meaning not completely corresponding to the fact it indicates, then the addition of 'actual' will intensify that word, so that it will not be fully satisfied by such legal meaning. [HON. MEMBERS: "Clear as mud!"] In Section 26 of the Representation of the People Act, 1882, the expression "actual" again occurs. The Courts have defined its meaning as follows: We think this word means a possession in fact as distinct from a possession in law. Then again Mr. Justice Grove in Orme's case, L.R. 8 C.P. at page 301, says: The meaning of the word is clear and simple. Actual possession would seem to mean actual and not constructive possession. In these definitions, may I add I have the acquiescence of my right hon and learned friend the Attorney-General?

Amendment agreed to.

Further Amendments made: In Sub-section (1) leave out the words "actual" ["coming into actual possession"].

Leave out the word "actual" ["comes into actual possession"].—[Mr. Chamberlain.]


I beg to move to leave out Sub-section (3).

The House will remember that until June, 1925, those premises which are partly business premises and partly a dwelling-house are protected by law. From that general rule this Sub-section excepts licensed houses, and in order to justify that exception from the general law, one would imagine that the characteristic point would be either great hardship to the landlord or else that the tenant in such cases enjoyed unusual economic advantages. Neither of these characteristics appears to apply to licensed premises which are usually owned by well-to-do proprietors and tenanted by persons who could not find other premises easily. Therefore there seems to be no ground for this particular exception. In order to ascertain what the ground is on which this exception has been made I beg to move.


I beg to second the Amendment.

I hope the right hon. Gentleman will be able to explain precisely why this exception should be made, having regard to the fact that very often in country districts the licensed victualler, carrying on his business, is also concerned with other work. Very often the work of carrying on his inn is only part of his activities. Very often the work of carrying on the inn is carried on by his wife, or with the assistance of his daughter, while he himself might be the village carpenter or engaged in some local industry. There are cases, I am aware, where if the licensed house is removed from the protection of the Act very considerable hardship may be inflicted. I know there have been, in relation to licensed houses, special cases, and there have been cases in the Courts. I think that, seeing that the licences are generally held by large corporations—

Viscountess ASTOR

Hear, hear!


—or held by wealthy companies, they ought to be put into no better position than anybody else in the country. Though I think those who keep the small licensed premises, particularly in the large rural districts, should have the protection of the Act.


These words were inserted because it was felt that there would be a considerable hardship if the tenant so conducted himself as to jeopardise the renewal of the licence. I understood that this Clause would not be resisted, but as some criticism was made upon it in Committee, I suggested that the various interests should consult together, and see if they could frame an Amendment which would be acceptable to the House. I see that there is another Amendment later on standing in the name of the hon. Member for the Spelthorne Division (Sir P. Pilditch), and if that represents an agreed Amendment then I am prepared to accept the Amendment which has just been moved.


In reply to what has fallen from the Minister of Health, the Amendment standing in my name to which he refers provides for the reinclusion of licensed premises in control again in the case of any offence being committed by a licensed victualler. It is an agreed Amendment between the parties interested. The hon. Member who seconds my Amendment represents the licensed victuallers, and I shall move that Amendment and another small one which precedes it at the proper time if the omission of this Sub-section from the Bill is accepted.

Amendment agreed to.

Amendment proposed: At the end of the Clause to insert a new Sub-section— (4) For the purposes of this section the expression "possession" shall be construed as meaning actual possession,' and a landlord shall not be deemed to have come into possession by reason only of a change of tenancy made with his consent."—[Mr. Chamberlain.]


As far as I am personally concerned, I agree with every word that has been said as to the inapplicability of the word "actual." [HON. MEMBERS: "Speak up!"] If there was the slightest doubt before the meaning of the words "actual possession," this Amendment makes it absolutely unintelligible. If the right hon. Gentleman says that the words "actual possession" really mean, and are intended to mean, possession by the landlord himself, I cannot for the life of me understand the meaning of the words: A landlord shall not be deemed to have come into possession by reason only of a change of tenancy made with his consent. If somebody else has come into possession the landlord is not deemed to have come into possession. It will be seen that he has not come into actual possession by merely allowing one tenant to change with another. I think on this point somebody must have been under a misapprehension as to what is the meaning of the word "actual." I venture to say if the Court at any time came to consider what is the meaning of the word "possession," and finds in this proposed Amendment a clear statement that the intention of the House was that mere change of possession does not mean actual possession, the learned Judges who will have to determine what "actual possession" means will find themselves in a difficulty.


I am not a lawyer and therefore do not appreciate these subtleties as to a landlord being in possession when he is not actually in possession. If a tenant goes out and there is an interval before the new tenant comes in, obviously the landlord would be in actual possession, as the outgoing tenant would hand the key to him. We say here that, although according to the construction of the Act he will be in actual possession, he shall in these circumstances not be deemed to be so if the change of tenant which has taken place is with his consent.

Amendment agreed to.