§ Order for Second Reading read.
§ The Attorney-General (Sir Donald Somervell)
I beg to move, "That the Bill be now read a Second time."
This Bill is designed to deal with a problem which has arisen in this war to a far greater extent than it did in the last war. At the beginning of the last war, as at the beginning of this, Parliament realised that the change to war conditions might make it impossible or impracticable for individuals to meet the liabilities which they have incurred before war broke out and which, but for the change to war conditions, they would have been able to meet in the ordinary course. Therefore, at the beginning of this war, as at the beginning of the last, Parliament passed a Courts (Emergency Powers) Act, the particular principle of which was this: It did not cut down obligations, but it said that before a creditor could proceed to enforce, by execution or by other remedy, his rights, he must obtain the leave of the court, and the court would refuse leave for such enforcement or execution if satisfied that the inability to pay was due to war circumstances. In the last war it would appear that legislation on these lines, with one or two Amendments made during the course of the war, dealt fairly satisfactorily with problems of financial hardship arising from the change to war conditions, but in the present war there have been in operation in certain areas of the country conditions which did not apply in the last war. I refer, of course, in particular to evacuation. There have been considerable areas in this war where the normal population, the normal customers of the shops, those who normally resort to hotels or boarding houses, either in pursuit of their occupations or by way of holiday resort, are no longer there.
Perhaps in some cases war damage apart from evacuation has produced the same sort of problem with which this Bill is designed to deal, and in particular, though it is not so defined in terms, the particular person whom we have had in mind in drafting this Bill is the owner of a small business, the lodging-house keeper, hotel keeper, garage keeper, 278 tradesman or professional man who is left without his normal clientele. Members for London constituencies will remember, particularly in the early stages of the war, bringing before the House, by Question and in other ways, the hardship that was falling upon boarding-house keepers and hotel keepers in those areas of London from which the population have largely disappeared as the result of evacuation. A simple case is that of a boarding-house keeper who formerly put up a number of students at London University or one of the institutions which at the beginning of the war represented London. Similar problems have arisen in other parts of the country which it is unnecessary further to detail. The Courts (Emergency Powers) Act has undoubtedly been a most valuable protection for these people. It has, as it were, to a large extent held the fort, and it has also had a valuable result in inducing creditors to come to reasonable agreements with their debtors and in many cases grant remissions of rent or other debts, realising that the debtor, owing to war conditions, cannot pay 20s. in the £, and the good will which has no doubt animated, we will hope, large numbers of those to whom money has been owed has been stimulated in other cases by the fact that the Courts (Emergency Powers) Act prevented execution, and therefore prevented the enforcement of the right
That Act, however, does not satisfactorily deal with the problem, at any rate in its terms, because the obligations under the Act go on piling up, and therefore, a load is gradually being built up which ultimately, as far as that Act is concerned, would destroy altogether the financial position of the individual affected. Many of these people are insolvent in this sense, that, owing to the effect which war conditions have had on their business, they will not be able to pay pre-war rent, to pay 20s. in the£, and to start again. It may be said that the Bankruptcy Acts are there, but there are two reasons which would, I think, make it wrong to rely on those Acts as a solution for this problem. There is some stigma attaching to bankruptcy. The Bankruptcy Acts are designed for persons who fail in normal times, and although some men may find themselves going through the bankruptcy court who have not been guilty of either negligence or rashness, but have been 279 purely the victims of circumstances, that cannot be said of others. That in itself might not be a sufficient justification if all that we were doing was to give the same procedure a new name. I know that we do it from time to time. A stigma gets attached to the beautiful English word "asylum," and we therefore decide to call it a "mental hospital." No doubt a stigma will attach to "mental hospital," and we shall have to think of another name for it. Therefore, if that were the only reason, it might not be sufficient.
I attach a great deal of importance to the fact that a stigma will not attach to the procedure under this Bill for the particular and much more fundamental reason that the Bankruptcy Acts and the bankruptcy procedure are not fitted or designed for this category of insolvency. The bankruptcy law is designed for people who fail in normal times. Its broad principle, although there may be deeds of arrangement, special schemes, and so on, is: "Here is a man who has failed; wind him up, dispose of his assets, give his creditors whatever the assets produce, and let him start again." The people who will come under this Bill are in a different category. They are men who in normal times have carried on businesses which paid their way and in many cases were flourishing. They are people who, when times become normal again, will be able to carry on the same businesses. There is no reason to suppose that they will not be able to carry on with equal efficiency and equal financial success. What has happened is that, owing to war conditions, they are temporarily unable to make the profits which would enable them to pay their rent, discharge their past liabilities and pay their way. We want a scheme, therefore, which aims at something rather different from that at which the Bankruptcy Acts aim, at something which will enable a man to tide over this intervening period of adversity under schemes which are fair to himself and to his creditors.
In most of these cases it would be contrary to the creditors' interests to put this man into bankruptcy and there would be a most unfavourable market for the realisation of the assets of a small business in an area which has been evacuated. It is to the interest of the creditors that the man should, as it were, be nursed through the period of hardship and enabled to start 280 again with his business assets intact. It is also in the national interest that these men, who have run their businesses and who have kept the industrial, professional and economic life of the community going in areas threatened by evacuation, should be sure that their assets, as far as possible with the passage of time, can remain unimpaired so that they can start gain and the local life in their communities can be renewed when conditions become normal again. Whether we look at the matter from the points of view of the debtor, of the landlord and other creditors, or of the State, the common sense of the matter is for the debtor and his creditors to come together and reach a reasonable arrangement, having regard to the resources which the debtor has, the possibility of his earning money during the war and the possibility of his starting again after the war.
If one examines these cases, one will find that in most of them, certainly in very many of them, this is already being done. Landlords are not demanding, say, from lodging-house or hotel keepers whose houses and hotels are now empty the rent which was fixed in pre-war days, when both parties had different circumstances in mind. Take another example, that of a small printer who was in process of buying valuable printing machinery on hire-purchase terms. His business may be such as to be adversely affected by war conditions, such as paper shortage and other matters. It would be foolish in everybody's interest to sell the printing machinery to-day. When conditions become normal the printer will be able to start his business going, and if he is enabled to have his liability for instalments suspended, he may ultimately be able to pay all his debts in full, possibly with interest. There are, of course, some cases where the creditors are not as reasonable as they should be. There are cases, perhaps, where the debtor has not taken the initiative in trying to get his creditors together and to satisfy them that he can be fair to all of them and so enlist and secure their co-operation. There may be other cases in which a creditor would be willing to be reasonable but does not want to be the only one to make the sacrifice. If there were machinery for him to be assured that creditors were all being dealt with alike, a scheme which would enable the debtor to survive his financial hardships might be practicable and possible.
281 It is, in our view, a problem which is best settled by arrangements and agreements without the expenses and formalities of court procedure. Therefore, in Clause I of the Bill it is proposed to appoint certain officers who are described as "liabilities adjustment officers" They will be therefor advice and assistance in enabling him to arrive at an equitable and reasonable scheme of arrangement with his creditors and, in particular at such a scheme of arrangement as will enable him, if he carries on a business or would, but for war circumstances, carry on a business, to preserve that business or to recover it when circumstances permit.That proposal is one which I commend to the House. It will, I think, be possible to obtain men skilled in this kind of work to whom a man can go in a perfectly informal way, and who may be able to give him valuable assistance in getting the parties together. If everybody agrees to the scheme, it becomes an enforceable scheme. If a majority in number and value agree, it becomes an enforceable scheme subject to a right of the minority to appeal. That, we think, is a better provision in this class of case than the pro vision under the bankruptcy law by which a scheme must always have the sanction of the courts. Here the onus is put on the dissident minority to go to the court. If, as is at any rate probable, the scheme is of a kind which the court itself would make if court proceedings had to be resorted to, it would, of course, be unlikely that the minority would put themselves to the expense of an unsuccessful appeal. But it is possible that this procedure may fail and the Bill therefore provides a court procedure under which, to put it broadly, the court will have power to impose a scheme on terms which seem reasonable to us, having regard to the problem which we are seeking to help to solve.
It is, of course, necessary that one should provide a scheme—inevitably, to some extent detailed and complicated—by which ultimately the court could exercise those powers. But the main usefulness of the court procedure, if the Bill works as we hope it will, is as an ultimate sanction which will induce those concerned to come voluntarily to arrangements, on the broad lines laid down in the court procedure, without the necessity of actual application to the court. If hon. Members turn to Clause 3, they will see to whom the pro- 282 cedure applies. It applies to the debtor who can show thathe is unable to pay his debts and to meet as they fall due, any future liabilities in respect of obligations already incurred; or—and indeed it goes considerably beyond what may be called the normal criterion of insolvency—is in such a position that, if he were required to pay his debts and to meet, as they fall due, any such future liabilities as aforesaid, he would be unable to carry on his business, or would lose the means of recovering his business, or would otherwise lose his means of livelihood.If he brings himself within those conditions the court may make what is called a "protection order" which is, in fact, a standstill order, and which prevents other proceedings being taken or continuing against him. But the operative order is called a liabilities adjustment order and what can be contained in that order, is set out in detail in the later Clauses of the Bill. I do not think that at this stage the House will want me to do more than draw attention to the more important points in which that procedure differs from the ordinary bankruptcy procedure and the special provisions which have been inserted, having regard to the special nature of the problem. The matter is, perhaps, most succinctly set out in Clause 4 (3). Without reading it all, I will indicate the structure of the Clause, and read certain passages from it, because they set out very clearly the underlying principle of the Bill. The Sub-section begins:Without prejudice to the generality of Sub-section (1) of this Section, the court in settling the terms of a liabilities adjustment order, may provide or allow, to such extent and subject to such conditions as it thinks fit, for all or any of the following matters, that is to say:Then follow references to furniture, bedding, clothing and tools. The Subsection continues:
- (a)for securing the maintenance of the debtor and his family;
- (b)for excepting from the property to be realised any premises which are used, or would but for war circumstances be used, as the home of the debtor."(c) in a case where the debtor carries on a business or intends, when circumstances permit, to resume the carrying on of a business suspended owing to war circumstances—There is also power to postpone debts, and the concluding lines of this paragraph, which are important, read as follow:
- (i) for excepting from the property to be realised the business, any premises used for
283 the business, and such other property as in the opinion of the court is required for the purposes of the business;
- (ii) for securing the repayment of, or the payment of interest on, any sums borrowed by the debtor with the consent of the court for the purposes of the business."so, however, that in exercising the powers aforesaid the court shall have regard to the prospects of the business and the likelihood of ultimate benefit to the creditors as well as to the debtor.That shows that certain property can be excepted from realisation. When we come to what is, very often, an important factor in these cases, namely, the rent payable under a pre-war lease on the business premises, we find that dealt with in Clause 6 and there is a power in the court, in making an order of this kind, to reduce the rent for a period, while the circumstances last,provided that the rent shall not in any case be reduced unless, in the opinion of the court, the lettable value of the premises has fallen as the result of war circumstances, or to an amount less than the lettable value at the date of the order.That seems a reasonable and proper limit, and, of course, it enacts what the majority of landlords are doing and have already done in these cases. They know that if they turned the tenant out of a holiday hotel in some place to which people cannot at present go, or out of a boarding house to which nobody is at present resorting, they would not get the pre-war rent or anything like it. They say, "This man is a good tenant; he is in financial difficulty, and, of course, in the circumstances, we cannot turn him out." That has been done in many cases. Then there are provisions in regard to hire-purchase contracts and somewhat complicated provisions with regard to mortgages. If the home or the business premises are excepted by the court from realisation, then one has to consider what is to be the position if that home or those business premises are the subject of a mortgage. There are arrangements under which the property is valued. If the property is worth less than the mortgage debt, as sometimes happens in the early days of a building society or similar mortgage, then the balance can be treated as a provable debt. If the value is greater than the 284 mortgage debt, then—I want to emphasise these points—the mortgagor remains personally liable to repay the whole of the debt, just as in the former case he remains personally liable to pay the amount of the debt secured by the property as valued. There is, however, power in the court to reduce the rate of interest payable during a period in which the order operates with a proviso which will be found in Clause 7 (4):The court shall not reduce the rate of interest under the last foregoing subsection, unless the annual amount payable by way of interest at the existing rate exceeds the net annual profit which in the opinion of the court the mortgaged property could at the date of the order reasonably be expected to produce, and any such reduction of the rate of interest shall be limited to the extent of that excess.That is to say, if the property is in such a condition and in such a place that it could be let for so much a year, or if a man is getting in effect that value per year by living in it, it would be wrong if the mortgagee were deprived of that amount, which, of course, he would obtain if he appointed a receiver, as he would do under normal conditions. Those provisions are necessarily a little complicated and can be discussed further in detail in Committee. I think that if one said that the interest could not be reduced at all, it would be putting the mortgagee in an unfair position of privilege vis-à-vis other creditors. Under this scheme, necessarily, a great deal has to be left to the discretion of the judge. It is a problem in which we cannot lay down a complete code covering all cases, but the principles, I hope, are sound.
There are special provisions dealing with partnerships and private companies. The court which will deal with these cases will normally be the county court, and I believe the House will think that that is right, but power to move by certiorari to the High Court if the case is one of exceptional complexity remains. I must also say a word upon Part II, which is an extension of the Courts (Emergency Powers) Acts. There have for some time been suggestions, in this House by Questions, and also in letters received by Members, that the Courts (Emergency Powers) Acts, which in their present form apply only to pre-war contracts, should apply to post-war contracts. The argument against that is that if people enter into contracts after war starts they at least 285 have their eyes open to war conditions, and in old-fashioned wars that might have been a perfectly fair argument, but in the present case what happens is not foreseen and, indeed, cannot be foreseen, in a sense, from day to day. Is a man in a remote part of the country to refrain from entering into contracts because, possibly, a stray bomb may blow up his house? The answer must be "No." It would be wrong if he were so restricting his activities.
Therefore, in this war, where conditions which no one could reasonably have anticipated may descend upon localities and individuals and produce dislocations which, if they had been anticipated, might have been bad for the life of the community, it is proposed to extend the protection of the Courts (Emergency Powers)Acts to post-war contracts. On the other hand, there being large areas of the country which are prosperous, with good employment and good wages, it might not be a blessing to those who are entitled to be paid their debts to say that in all cases they must apply to the courts to enforce the judgment they have got. So where it is a case of enforcing a judgment or order of the court we provide that the onus is on the defendant to make an application and say that he has been adversely affected by war circumstances since he entered into the contract. When one comes to deal with remedies which can be exercised without going to the courts— distress and retaking possession—it is impossible to apply that principle, and therefore, in the case of those remedies, we do make an extension of the existing Acts, and those who wish to exercise those remedies in respect of post-war contracts must go to the court.
There are many other details in the Bill, but I have endeavoured to outline the purpose which we had in introducing it and the general nature of the scheme which we commend to the House for dealing with what is, no doubt, a very difficult problem, and we hope the House will accept the view that the Measure is on right and sound lines.
§ Mr. Garro Jones (Aberdeen, North)
The right hon. and learned Gentleman has directed our attention with, if I may say so, his usual thoroughness and lucidity to the salient parts of this Bill, and I think all of us will recognise that the Bill, though not perhaps a symmetrical piece of 286 legislation, if ever there were such a thing, is a wise and necessary war-time expedient. It meets the position of persons and of businesses which have been brought to serious and sometimes desperate financial extremities owing to the war, and it not only provides for them a way out of the difficulty, but in many cases shows them a way to rehabilitate themselves which they can take without hurting their honour or their conscience or even reflecting upon their commercial prudence. May I say that although this Bill is necessarily of greater interest, perhaps, to members of the legal profession than to others, it is not what is commonly called a "lawyers' Bill."It is essentially a part of our war economic structure for the maintenance of the morale and the dissipating of any sense of injustice which would arise among large numbers of people if that structure were not to be completed by this Bill. As one who has had a little to do with the Courts (Emergency Powers) Acts, though not so much as some of my hon. Friends, I should imagine that this Bill has been built up largely from experience in the courts of the shortcomings of those Acts, but in saying that I want to make it clear that I agree respectfully with the right hon. and learned Gentleman that those Acts have been an immense boon in the scores of thousands of cases in which advantage has been taken of their provisions, and it has been really interesting to observe the alacrity with which judges of the county courts and even of the Court of Appeal, have readily given protection to war affected debtors when that defence has been put before them.
I think that the few remarks I shall make can perhaps be best directed to the defects of the Courts (Emergency Powers) Acts which this Bill is intended to remove I think the most serious defects of those Acts is that as between creditors and the same debtor they tend to inflict, I will not say an injustice, but an inequality of treatment when one creditor makes haste to the court in order to secure the payment of his debt. In such a case the court is often placed in a great difficulty, because although it is entitled, I believe, in certain circumstances, to receive evidence of other debts owing by the debtor, it certainly does not have the other creditors before it; and in my experience the debtor in the box is often extremely reluctant to expose 287 his whole financial position, a small debtor sued by his landlord being particularly reluctant to say that he owes money in other directions as well. Often a man is successful in getting his order and leave to proceed only at the cost of worsening the position of the other creditors who are not before the court, and debtors themselves are not always free from the natural tendency to do a little picking and choosing between which creditors they will pay. Debtors naturally prefer to maintain full payment to those upon whom they must rely for their day-to-day supplies, and to defer payment to creditors against whose claims they think they might be able successfully to plead the provisions of the Courts (Emergency Powers) Acts.
It may help to illustrate my point if I remind the House, and hon. and learned Members who know this case well, of a most typical leading case in which the manager of a number of hotels and the owner of the business—although not the owner of all the hotels—found that the largest of his group of hotels was badly hit by war conditions. He was sued by the landlord for the rent of the hotel, which was one of his largest single obligations. He put before the court this plea: "If I can be permitted to delay payment on this, my largest, hotel, I shall be able to maintain all my other payments intact and to carry on my business, but if it is insisted that I must pay the rent of this hotel, I shall not be able to carry on my business, which will have to close down." It may surprise some hon. Members to hear that the plea was accepted by the court of first instance but was promptly and properly reversed by the Court of Appeal.
The point is that the Court of Appeal could not do, in that case, what I am sure it would have liked to do and what will be made possible under the machinery provided by the Bill, namely, apportion among all the creditors of that hotel business manager the amount by which he was unable to pay the whole of his obligations. Even though the hotel proprietor proved able to pay something like 20s. in the £, he would be able to carry on his business without, as the Attorney-General said, any stigma of bankruptcy and without, I should like to add, any of the penalties of bankruptcy, some of which are extremely severe. I 288 trust that it will not be found necessary for hon. Members of this House to take advantage of these provisions. As hon. Members know, one of the penalties of bankruptcy applied to Members of this House is that the seat of any Member concerned must be relinquished. Under the provisions of the Bill, a member so affected would be able to make arrangements with his creditors and still confer upon us the boon of his Membership.
The Courts (Emergency Powers) Acts undoubtedly brought relief or postponement to debtors in thousands of cases but did so only by imposing hardship upon creditors, who might well Be small men themselves. Whether in such cases a creditor suffers a real hardship or not, it is clear that he suffers from inequality of justice, because the court has laid upon his back, merely because he happens to be most convenient and happens to be the man in court, the whole of the burden which ought to be distributed among all the creditors. The House may perhaps have observed the provision of Clause 3 under which all cases in which debtors have been given protection can be reopened on the application of the debtors I will read this provision, because I wish to utter a caution about it. It says:An application may be made to the court for the adjustment and settlement under this Part of this Act of the affairs of any person, on the ground that, owing to war circumstances"—etc.Any such application may be made"—these are the operative words—in a case where the debtor has been granted and is still enjoying relief under Section one of the Courts (Emergency Powers) Act, 1939, by any creditor who has a debt which would be a provable debt.In scores of thousands of cases debtors have been protected by the Courts (Emergency Powers) Acts. I hope that the right hon. and learned Gentleman and his advisers have satisfied themselves that there is no danger of such a number of applications being made to reopen cases, and certainly small cases, as will bring the courts into a state of congestion. I hope that consideration will be given to that point.
Before I leave this question of the apportioning of bad debts, I would utter a further word of caution about a difficulty which may occur in the administration of the chief provisions of the Bill. I 289 feel that the right hon. and learned Gentleman, and perhaps the Solicitor-General also, will more readily accept what I am going to say because I abstain from any attempt to make a general case of criticism against the Bill, either on grounds of principle or of detail. They and other hon. and learned Members may agree that such a case can, without much difficulty, be made. My point is—and perhaps it is rather more than a point— that while the Bill apportions debts among creditors of one debtor, it may, and in my view certainly will, create large inequalities as between groups of creditors, perhaps geographical groups, such as the creditors of people in evacuated areas, who will be most affected. They in turn may be compelled to seek protection under these provisions. In the administration of the Measure we shall find the anomaly that creditors of men who have been ruined by the war must bear an injustice in comparison with creditors of those classes of people who have been prospered by the war. The former class of creditor may have to be content with 2S., 10s., or even 15s. in the £, while creditors of men in areas which the war has prospered will have no bad debts at all.
I do not want to deal with impossible theories, but it ought to be stated that the correct and logical principle to go upon, in theory at any rate, is that which was so tersely expressed by the Lord Privy Seal when he said that in this war we must all stand in together financially. If that principle is to be applied, the State must be the great leveller of war profits and war losses, and should apportion them among the whole community. I do not propose to press that point. If we were to attempt to level the hardships and inequalities of war, Parliament would have to sit for a very long time, and Civil Servants would have to give up fighting the war in order to do it; but we ought to keep that goal constantly in mind in erecting the different parts of our war economic structure, even if we have to accept for the time being, as we do to-day, the best expedients we can improvise without undue delay.
As a general comment on the Bill I would say that I regard it as a satisfactory example, although not perfect in its theoretical principle, of a Measure of war-time expediency. That brings me to mention very briefly the two other defects of the former Acts which this Bill will remove.
290 As the Attorney-General pointed out, the Courts (Emergency Powers) Acts gave to the creditor only prolonged uncertainty and to the debtor only a deferment of his obligations This Bill will enable matters to be settled with finality and to be settled within the present and prospective capacity of the debtor to pay. I think the provisions of Clauses 25 and 26 in Part II to which the Attorney-General also drew the attention of the House are to be welcomed. These Clauses extend the protection of the Courts (Emergency Powers) Acts to cover obligations entered into since the outbreak of the war. As the Attorney-General pointed out, if some such proposal as this were not incorporated in the Bill, it might do a great deal to freeze up enterprise and business transactions in many parts of the country. I think that few hon. Members will complain of these Clauses. After all, the war has taken many changing courses which many prudent people were not able to foresee. For example, many an obligation was accepted, and not only in the financial sphere, on the supposition that the Maginot Line was impregnable, and even that the war would take a course parallel to that of the war of 1914–18, and it seems to me just and logical that if high authorities have been so disillusioned by events, the ordinary trader and individual are entitled to seek protection from difficulties arising out of them. This protection they will now receive.
I want to conclude with two suggestions. I would express the hope that the liabilities adjustment officers, who will be responsible for preparing these schemes and for advising debtors, will be particularly instructed in the spirit in which they are to carry out their duties. I think that that suggestion may perhaps be all the more necessary in view of the proposal which was made by Lord Maugham in another place when quite properly he put forward the claims of official receivers to be appointed as the liabilities adjustment officers. We all know that official receivers have a very wide knowledge of debt adjustment, bankruptcy procedure and so on, but I think that if the appointments are confined to official receivers, they may be inclined to operate the provisions of this Bill in a spirit which is not intended by Parliament. As the Lord Chancellor strongly emphasised in another place, the process of debt 291 adjustment in this Bill is not a bankruptcy process. It is not intended to give any relief from the consequences, for example, of gambling or of extravagance or even of imprudence. It is intended to make for creditors and for debtors the best of a bad job which the war has inflicted upon them both, and in my opinion it is highly important that under this Bill they should be treated in the private and often in the public processes through which they will have to pass—because a great many cases will have to go to the courts—not as improvident bankrupts, but as persons upon whom the mischances and hardships of war have fallen with especial severity.
There is one last point that I wish to make, and that is with regard to the publicity which should be given to the provisions of this Bill. In my view, although it is a matter of opinion and degree, very little publicity was given to the amount of protection which was conferred on persons under the Courts (Emergency Powers) Acts. It is true that when it came to the point of the issue of a summons the defendant or the debtor was explicitly informed of his rights under the Courts (Emergency Powers) Acts, but prior to the issue of a summons, or in cases where no summons was issued, there was a great deal of unscrupulous dunning of the debtor, and he was unaware of the protection which Parliament had provided for him in cases of this kind. Therefore, I hope that the right hon. and learned Gentleman will see to it, as I am sure he would wish to do, that the provisions of this Bill are brought widely to the notice of those to whom they will apply. I will conclude by saying that I believe that after proper discussion of the principles of this Bill it will be recognised as a substantial improvement to our war-time economic structure, and may even teach us some lessons in regard to the erection of our peace-time economic structure.
§ Mr. Doland (Balham and Tooting)
I wish to speak for a section of the community—the shopkeepers, and particularly the smaller shopkeepers of this great City of London. It has been said that there has been a lot of "sob-stuff "when mentioning the difficulties of the small shopkeeper. I feel certain, however, that the right hon. and learned Gentleman, who has already mentioned the small 292 shopkeeper in his opening remarks, knows full well that conditions to-day bear upon the small shopkeeper very acutely. I understand from the right hon. and learned Gentleman that this Measure is particularly directed to those who find it impossible or impracticable to meet their liabilities. I understand, too, that the Attorney-General particularly mentioned the owners of small businesses who were grateful to him for saying that that section of the community had been thought of when drafting this Measure. But he also said that this Measure is concerned and connected with only those who cannot afford to pay 20s. in the £. I have a recollection that in this House not very long ago a Minister told us that there were opportunities even during this terrible war for the small shopkeeper to do something, although he may not be able to pay 20s. in the £, and I shall refer to that in a moment. I would like to emphasise the remarks made by the right hon. and learned Gentleman when he said that landlords of this country are not demanding to the fullest extent rents from those suffering hardships. I know from personal experience that there are in this country many scores of landlords who have met their tenants very well indeed, but there are others who are not doing that which, in my opinion, they should do, and taking their fair share.
I do not wish to refer to many Clauses in this Bill. I particularly want to refer to Clause 3, because it refers to those who cannot meet their liabilities, and to Clause 6 on the question of reducing rent. On 10th April, on the Adjournment Debate on the question of the limitation of supplies, and the retail distributive industry, the Parliamentary Secretary to the Board of Trade said that the Board of Trade could visualise a time when it would be necessary for some small shopkeepersto realise their present stocks, invest the money in Government securities and find other jobs for the time being so that when the war is over they may go back to their shops with a certain amount of capital to re-equip them and enable them to start again." — [OFFICIAL REPORT, 10th April, 1941: col. 1768, Vol. 370.]That was said in this House as late as a few days ago, but I fail to find in any Clause in this Bill—I hope to be informed that I have made a mistake—whether that course is practicable for any small trader. I wish it were. Thousands of 293 small shopkeepers and small traders, and others apart from traders, are longing for it to be possible, and I would like to ask the right hon. and learned Gentleman under what part of this Bill they will be able to do it. I know the Parliamentary Secretary to the Board of Trade wishes to be strictly impartial, as does the right hon, and learned Gentleman also. He wants to hold the balance fairly between the large storekeeper and the small shopkeeper. But how can the small shopkeeper do as is suggested by the Parliamentary Secretary to the Board of Trade when he is compelled to close his shop for want of supplies or because of other war difficulties—;and they are numerous— if he has commitments, such as an agreement or lease for a term of years on his shop premises? Will the Attorney-General inform the small shopkeepers on this point? I ask him most earnestly, because it is an important point, and thousands of small shopkeepers are awaiting an answer to the question as to how they can sell their remaining stock, invest the proceeds in War Loan, and get away with the money in order to start again after the war, if the landlords with whom they have definite contracts know that they have money left and demand their rent. even though the businesses may be closed?
Of my own knowledge I know that many hundreds of small shopkeepers have already closed their businesses and have gone away without any money, but we want to speak now of the men who, the Parliamentary Secretary to the Board of Trade says, will be able to start again after the war. The right hon. and learned Gentleman said a few moments ago that this Bill Will enable the small shopkeeper to start again when the war ends. How can he do that if there is no relief in this Bill to compel a landlord—I use the word compel "with some diffidence—to come to some arrangement? If the man has sold his stock and obtained a few hundred pounds, are you going to take it all gradually, because the liability remains although he is out of business and the shop is closed? If it is a question of waiting a year or two years until after the war, every penny of that money will go in meeting the liability. The Parliamentary Secretary to the Board of Trade has suggested that rather than stay in business and lose all his capital, the small shopkeeper could clear out. Will the right 294 hon. and learned Gentleman tell me under what part of this Measure he can do that? I am speaking now for the small shopkeeper. We realise that we must take our share of the troubles of this war, but there are times when it becomes a little hard when a man is told by the Government that there is nothing more for him to sell, that it is no use staying in business, and that he should get out and get a job. He would be only too pleased to do It, but where there is an agreement or a lease some landlords—I am afraid there are many—would only say, "Pay, pay, pay," until every penny of the money realised on the stock is gone. As far as we know at present it is only when the small shopkeeper has lost his all that he can obtain relief from his commitments; so long as he has a pound left he cannot obtain any relief.
This Bill will not help the trader if it is known that he has received any cash from the sale of his stock. It will not absolve him from his rates or taxes. Clause 3 enables a person to make an application if he is unable to pay his debts or to meet as they fall due any further liabilities on obligations already incurred. An order may provide for the payment of tax by the partial realisation and distribution of the debtor's property, the proceeds including sums out of the debtor's future income. That is what the Measure says, and so I ask the right hon. and learned Gentleman if he can explain to the small shopkeeper how he will be able to do as was suggested by the Parliamentary Secretary to the Board of Trade on Thursday, 10th April. I cannot see how it can be done. I know of no trader in this city or in this country who has no obligation, however small and limited, in regard either to an agreement or a lease. Nowadays one cannot take a shop without signing some such document, and it is for that reason that I ask this question.
§ Mr. Moelwyn Hughes (Carmarthen)
I rise in the first place to crave the usual indulgence of this House, and in the second place to support the Bill. I do so, first of all, because its provisions are so wide and ample in their scope. My right hon. and learned Friend the Attorney-General is a master of a great many types of advocacy, and to-day he showed himself to be master of a persuasive type of under-statement. He pointed out to the House that the Bill was primarily designed 295 for the small trader with a small business, and as I read it—and I do not think my right hon. and learned Fried will disagree with me—it extends to considerably larger businesses and, what I submit is far more important, it extends also to cover the cases of the small householder, the soldier, and the black-coated worker who has lost his pre-war job and is now doing some work in connection with Civil Defence at a considerably less income. All those individual categories can benefit from the Bill we are now considering. I also desire to support the Measure for what I may venture to describe as the generosity of its terms. My right hon. and learned Friend pointed out the stigma that attached to bankruptcy. It was not always so. Bankruptcy was originally devised as a proper method of settling affairs with fairness to all concerned in the event of disaster. We know that in the development of its history and the growth of its technicalities it has been used not only for honourable settlements, but for purposes which have indeed brought advantage to those who have resorted to its provisions. In any event, the use of bankruptcy, even. if it were desirable, would not be open to the small householder, the workman, or the soldier, because the initial expense would be too heavy. This scheme takes the stigma out of bankruptcy. It is, as some one irreverently described it, bankruptcy without busting, insolvency without insult. The Bill removes the disadvantages of bankruptcy.
I have another reason for supporting the Bill—that is, the novelty of its approach to the problem. The Bill starts with the appointment of a liabilities adjustment officer, charged with the duty of giving advice and assistance to those who ought to take advantage of the provisions of the Bill. Members of this House are all aware of the innumerable occasions upon which the beneficence of Measures passed by Parliament has been lost, not only because those who were intended to benefit have been unable to afford to obtain the remedies to which they were entitled but, still more, owing to their ignorance of their rights. Attention has already been drawn to the ignorance of people to their rights under the Courts (Emergency Powers) Acts. Those who have been, at one time or another, en- 296 gaged as poor man's lawyers or in assisting their constituents, know well enough the innumerable cases, under the Rent Restrictions Acts, for instance, when people are ignorant of their rights. By this Measure, Parliament is setting up an officer to advise and assist at the outset. I would endorse the plea of my hon. Friend the Member for North Aberdeen (Mr. Garro Jones) for publicity, not only for this Measure, but also to make clear to the populace at large the position of the liabilities adjustment officer, so that everybody suffering serious financial difficulties owing to the war may know that he has somebody competent to advise him, to whom he can go without any cost whatever.
Another feature of this Bill recommends itself to many of us. It shows how ready the Government are to make this an effective Measure. The Bill puts the Crown on the same level as subjects in regard to debts. The Crown has very special privileges. These are all abandoned for the purposes of this scheme. The tax collector and the local tradesmen have to row together. The Chancellor of the Exchequer and the small grocer have been put into the same boat; and so skilfully have they been put into it that, very marvellously, there is no danger of its upsetting. There is another direction in which, though not quite so clearly, the Government show a desire to make the Bill comprehensive. Perhaps at a later stage my right hon. and learned Friend will explain more fully how far it goes. I see in Clause 15 some desire, at any rate, to get behind the corporate facade in the case of private companies, and to make those who are really interested in a company, although they may not be strictly liable in law, parties to any arrangement which is going to advantage the company.
Having said that in support of the Measure, I would like to make one or two criticisms. The scheme of the Bill, as I read it, is admirably designed and drafted for the type of case, upon which my right hon. and learned Friend laid emphasis—the trade, the business. It is not so well designed for the individual, the person I mentioned at the outset, the small householder. In his case, there will normally be only one serious creditor. It will be either the finance company, which is generally behind a hire-purchase agreement, the landlord, or the building 297 society. These people have learned, as we all have, to adjust their day-to-day expenditure, but these major items are matters which they are not in a position to get adjusted. The fact that there will only be one serious creditor in these cases means that if the creditor is obstructive he can prevent the liabilities adjustment officer from putting into operation any scheme which can be enforced, because the Bill demands a majority, in number and in value, and there is no provision to enable the liabilities adjustment officer to recommend to the court any scheme which does not secure that majority. These special types of creditor are given that advantageous position.
The general principle of the Bill is equality of treatment between all creditors, with power for the court to vary the terms of the contract between the creditor and the debtor. The court is given power to direct payment to such extent as it considers practicable, and to vary contracts. Yet, overriding these generous, and, I suggest, proper, provisions, there are special terms in the Bill relating to hire purchase agreements, leases, and mortgages. I can understand the legal necessity for having special forms in connection with these obligations, but the Bill places them all in a favoured position. The finance company and the building society can always insist upon the full debt being paid; and, in respect of deductions for rent or for mortgage interest, the court cannot reduce the commercial lettable value of the premises. With regard to London, that will be a very beneficent provision, because values have gone clown in London, but there are vast tracts of this country, into which people have crowded from other parts, where the value of property, and particularly of small property, has gone up enormously in the open market. The result of putting this limit on will be to place the court in the difficult position of finding a wide margin within which to operate when, for the needs of the debtor himself, it ought to be scaling them down. I would urge upon my right hon. and learned Friend to see whether he cannot insert in this admirably drafted Bill a provision that will bear in mind the rights or the claims of the debtor in these particular cases. The debtor does not come within this scheme at all unless he has 298 shown that he is suffering serious financial hardship due to the war. When he comes face to face with the finance company, the landlord or the building society he has had his knock, and I suggest that these three groups of creditors ought also to be prepared to be compelled, if necessary, to take their knock as well. Subject to these criticisms and a number of matters, which I hope we may discuss in Committee, because, as my right hon. and learned Friend said, this is a complicated and abstruse Measure and a number of problems which arise have not been explained under it, I support the Bill.
§ Sir Adam Maitland (Faversham)
I am sure that the House would wish me to congratulate the hon. Member for Carmarthen (Mr. Moelwyn Hughes) upon the excellence of his maiden effort. It is an experience which most of us have undergone. We recognise the temerity with which the speaker rises, and it is always a satisfaction at any rate to feel that the ordeal is over. The hon. Gentleman has acquitted himself extraordinarily well, and we shall look forward to his contributions, as far as the restricted Debates in these days permit, as frequently as possible.
I am glad that the hon. Gentleman referred to the wider scope of the Measure that was indicated by the learned Attorney-General. The Attorney-General gave a description of the Measure which we all very much appreciated. I do not propose to deal with this question to-day or any other day, as it is a matter for the lawyers, but I would put it to the Attorney-General that I myself have not been much impressed with the suggestion that, because of this Measure, you remove the stigma of bankruptcy from an individual. There is another aspect which has not been touched upon so far to-day. There is in most Englishmen an inherent pride in their desire to pay 20s. in the £, and I do not think that the average Englishman would be very happy because he had been enabled to come to some arrangement with his creditors, not under the Bankruptcy Acts but under the War Damage Act. The thing which will cause the most anxiety to the average Englishman is the fact that he is unable to meet his liabilities. Therefore it seems to me that in this matter the Government have not shown enough imagination. They are making a similar kind of mistake to 299 that which is being made in regard to the proposals for the concentration of industry.
If the Government propose to take action which results in a man's business being taken away from him, then they must accept the next consequence. They should see that proper compensation is paid, but they say that that must be met out of the trade itself. The Attorney-General, in his speech in introducing the Bill, said that this was a question upon which the debtor and the creditor must get together. They are trying to help both by an improvement in the machinery of the law, but there is no indication that State assistance will be given in this case. The hon. Member said that the Crown would be deprived of certain of its privileges to-day. May I add that the Bill also provides that privilege should be denied in respect of rates? Take the case of a local authority which has been badly hit by war conditions. It means that under this particular Measure, as I understand it, payment of the rates of that authority can be indefinitely postponed. I believe that in regard to the question of assistance to local authorities the Government have not acted with expedition.
In this particular case it would be much bolder for the State to take some responsibility for the position in which so many people find themselves to-day. It must be remembered that a good many of these people, although they are adversely affected by war conditions, have been so affected because of Government action, which, it is true, has been brought about by the war. It is very largely as a result of Government action that a very large number of people are suffering, and, therefore, I ask the Government not to look upon this Bill as anything more than a stop-gap, for that is all it is. It is a stopgap in order to improve the judicial procedure and to deal in a convenient way with the difficulties which have arisen. As I see it, in effect, it really does not do anything to bring about any financial adjustment. It opens the way by which debtor and creditor may get agreement, but there is not a word as far as Government aid is concerned.
If one makes concrete proposals to Ministers on the Front Bench, assisted as they are by Treasury officials, many reasons may be given why a particular 300 suggestion is an impracticable one, but I venture to make a suggestion. This is a question entirely affecting our internal affairs. Whatever we do, it is not a question of export or exchange, but purely a matter of internal arrangement. I have in mind this inherent desire of the average British person to remain solvent. Therefore, will the Government consider not only providing the legal machinery whereby he can be assisted, but will they assist him to retain his pride? How could that be done? It could be done by an issue of a special kind of bond for the purpose of internal negotiation as between debtor and creditor. It could be issued to the debtor, who, instead of having "A," "B" and "C" as his creditors, would have the State as creditor. The majority of people so assisted in this country would regard that as a debt of honour incumbent upon them to repay, if and when conditions were normal or became such that they were able to repay. That would be a very much bolder way and certainly one which would help to preserve the integrity and self-confidence of a vast number of people who are affected by this Measure. As I say, I can find thousands of reasons myself why that suggestion should not be adopted, but at any rate I pass it on. I hope the Government will not regard this Measure as meeting all the trouble; it is, I agree, an effort to ease the present procedure, which is all to the good, but, so far as I can see, the repercussions and reactions to this Bill will be economically detrimental to the country, and I cannot give it the whole-hearted support I would like to have done.
§ Major Milner (Leeds, South East)
The speaker who has just sat down put forward a suggestion which, I think, is worthy of consideration but which has one or two definite disadvantages. The first and obvious disadvantage is that in the experience of most of us the State is not always the most tender of creditors, and I think a good deal more consideration will have to be given to that proposal than has been given. But the hon. Gentleman was right in saying that the Bill does not go far enough. A good deal more will have to be done in the acceptance of Government responsibility than has been done in these matters. We all recognise, as with most of our legislation these days, that efforts are being made little by little 301 to improve the position, and this particular Bill is another of these efforts which have been made to modify and ease the distress and difficulty which have arisen and which, unfortunately, will continue to arise, perhaps in an ever-increasing measure, until victory is achieved, owing to circumstances arising directly or indirectly out of the war.
I think the Measure is a little belated; nevertheless, it is a courageous and imaginative effort which, in my view, will help the present situation, and those responsible for it deserve congratulations. There seems to be an inpression that the procedure outlined in the Bill is something new, but that, of course, is not in essence the case, because for scores of years, certainly 50 years, I imagine, there has been in operation in the county courts of this country what is known as the administration order procedure, whereby a man owing debts not exceeding, I believe, £50 may go to the court and put forward a proposal for payment by way of composition or instalment or otherwise to satisfy the whole of his creditors in whole or in part. On that proposal receiving the approval of the court, it is binding on all creditors, whether dissentient or otherwise, and it enables the debtor to satisfy his creditors and to avoid the consequences which might otherwise follow of one creditor obtaining preference or the debtor being put into greater difficulties by having to go into bankruptcy if his debts are sufficient. Well, that principle is very largely embodied in this Bill.
I do not think this is the occasion on which to indulge in detailed comments on the Bill, which will, I am sure, commend itself to the House. I am sure the House was in sympathy with the hon. Member for Balham and Tooting (Mr. Doland). The case of the small tradesman is a very hard one indeed. It is true to say that a tradesman, if he is able to sell his goods, chattels, fixtures and so forth, would not, if he has capital, be relieved in any way from payment of rent. At the same time this Bill may be helpful even in that direction. It will be possible to disclaim the lease, thereby freeing the unfortunate tradesman from a substantial liability and enabling him to distribute more among the creditors with whom he hopes to do business after the war and to put forward, with approval, a composition to the landlord.
302 If it is possible for him to continue business, it may enable him to do so at a reduced rent in a case where the landlord is difficult in that respect. While the Bill does not "go the whole hog," it will considerably help the position of the small shopkeeper.
But there are other advantages which must obviously commend the Bill to the House. I have had some practical experience in these matters, and I believe that this Bill will enable a debtor largely to rid himself of the worry of being pressed by one creditor after another. It will enable him to make an agreement, either voluntarily or with the assistance of the liabilities adjustment officer, or, failing such agreement, by order of the court, to come to a fair arrangement as between debtor and creditor. In my submission, that should be the real object of this Bill. Its object should be to share the burden or hardship equally as between debtor and creditor, and I wish it were possible for the Government to take a greater share of that hardship and responsibility. In these cases the majority of creditors are quite frequently reasonable people and are anxious and willing to meet their debtors, but almost invariably there is one or more difficult individual, firm or company who is not willing to fall into line with the rest of the creditors and insists on having his pound of flesh by having some preference. This Bill will enable the court, in a last resort, to compel such a creditor to fall into line for the benefit of all.
It will be of great advantage to ensure the absence of publicity. I do not know whether applications to a county court will be in open court—I should imagine they would have to be—but in the case of similar orders there is little or no publicity except for the few who happen to be present in the court. Rarely are there newspaper reports, and I hope the same course may be adopted in these cases. The Attorney-General made an important point in saying that the Bill provides for the advice and assistance of the liabilities adjustment officer, and it seems to me very essential that such an individual should have a sympathetic approach to the whole problem and really give his advice and assistance to the debtor and, indeed, also to the creditor. The question of those who are to be appointed to that office is most im- 303 portant, and I will offer an observation or two on it in a few moments. I hope the Government, or the Lord Chancellor, if he is to be in charge of this Bill, will consider the point of the sympathetic approach by the liabilities adjustment officer and also by the courts with reference to the position of the debtor and the problem raised by his application to a court under this Bill. The Bill is generally to be welcomed as another practical step towards equal sacrifice and another development to lessen distress and ameliorate the conditions of those who must necessarily suffer in total warfare.
There are one or two practical suggestions I would like to make. I submit that the first essential of any procedure such as this is that everything that is done should be open and above board, and that all the parties should be entitled to be heard at all times. There are provisions in the Bill for the liabilities adjustment officer to make a report to the court. I hope that this report may be made available to all parties, debtor and creditors. I do not think such a provision appears in the Bill at present, but it would be a very desirable one. Further, the debtor and all the creditors—and indeed all others affected, such as landlords and mortgagees—should have the right to be heard if their interests are to be affected in any way. There is no provision to that effect in the Bill, and I hope the Government will insert one.
As a general rule, I imagine that the great majority of these cases will be dealt with in the county court. This is obviously the best court to deal with them, for it has great experience in these matters, and I have often spoken in the House of the knowledge and responsibility displayed by county court judges and their officers. But, at the same time, there ought to be a provision for some appeal from the county court. Such a provision does not appear in the Bill. In my opinion, many questions of interpretation will arise, at any rate at the beginning, and it is very desirable that there should be uniformity throughout the country. While one recognises the necessity for simplification of procedure, one must recognise also that man is fallible. I do not feel inclined to leave the final. conclusion in these matters to 304 one man, even though he be a county court judge. Therefore, if only on questions of law, I hope that there may be an opportunity for appeal to a higher court. There seems to be a curious disinclination in Government circles to give opportunities for appeal. As an instance of this, one has only to refer to the frequent requests that are made from all parts of the House to the Minister of Pensions to provide appeal tribunals. I know that in war time there are difficulties, but, in my view, it is very necessary, and quite practicable, to provide such facilities, and certainly to do so in the particular case now before us.
Apparently it is the intention that rules should be made by the Lord Chancellor, and that those rules should be laid on the Table of the House. I assume they will be capable of being challenged only as a whole, and I suggest that it would be an advantage if they could be either circulated in draft or at any rate discussed with those who are interested, as was done in such large measure with the War Damage Bill, with very satisfactory results to all concerned. I hope also that those rules may be sent to the Law Society, which has great experience in these matters, for its consideration and for any suggestions it may have to make.
I have referred already to the question of the liabilities adjustment officer. Obviously, the success of these proposals will depend largely on the personality of that individual, whose function it will be to advise and help the harassed debtor, while endeavouring at the same time to make the best terms and fairest arrangements in the interests of the creditors. My right hon. and learned Friend has referred to the special plea that was made in another place for the appointment of official receivers. I have a great admiration for the majority of official receivers, who have a difficult task to undertake, but I am not sure that they would be the best persons for appointment as liabilities adjustment officers under this Bill. They are appointed by the Board of Trade, and not by the Lord Chancellor. Their duties at present are largely formal and official, and they involve very little, if any, degree of help or advice to the debtor. Indeed, all of us know, either from experience or from what we read in the newspapers, that very frequently the official receiver 305 is somewhat of a taskmaster and at times even of prosecuting counsel. Certainly, official receivers have little or no experience of mutual arrangements arrived at as a result of discussion and negotiation. Another reason why the appointment of official receivers should be very carefully considered before being made is that, of necessity, the stigma of bankruptcy would attach, if only in a small measure, to those who had to attend at the official receiver's office in order to give particulars of their estate and so on to the official receiver. I hope the matter will be considered further. There are, of course, many accountants and solicitors who have a vast experience precisely of the nature required by this Bill, and I hope that consideration may perhaps be given to the appointment of some of them.
Having made these comments, I commend the Bill to the House as a helpful and ingenious contribution to the readjustment of all our affairs. It will give consolation and relief to a great many people and be of assistance, both directly and indirectly, to the war effort in which we are now engaged.
§ Major C. S. Taylor (Eastbourne)
In congratulating the Government on bringing forward this Bill, I should like to say that I feel it is somewhat late in being introduced. Soon after the evacuation from Dunkirk and soon after it became apparent that large parts of this country would have to be evacuated under Government schemes, a Bill similar to this one was produced by associations of business men in my constituency. I regret that it has taken such a long time to become a fact. I regard this Bill as being certainly the most human Bill we have had before us since the beginning of the war. It is a human Bill in that it realises that there is not very much difference between the position of a person whose business or home suffers through enemy action and that of a person whose business and home suffers, through no fault of his own, because of Government evacuation schemes which are, of course, evolved for the benefit of the community as a whole.
As the hon. and gallant Member for South-East Leeds (Major Milner) has made clear, the success of the Bill will depend upon the men who are appointed 306 as liabilities adjustment officers; but I hope—and here I disagree with the hon. and gallant Member—that the men who will be appointed will not be cold-blooded accountants or cold-blooded lawyers. Let them be men of human understanding, who appreciate the conditions of the debtor and creditor. Let them have the benefit of technical and skilled advice of lawyers and accountants, but above all I do hope they will be just ordinary men. Theirs will be a very responsible job, but we do not expect them to be of the same calibre as King Solomon. I cannot put it plainer than to say, let them be ordinary men.
§ Major Milner
I am sure my hon. and gallant Friend will agree that accountants, who are dealing daily with the troubles of individuals, are at least as sympathetic as any other section of the community, and that therefore they are human.
§ Major Taylor
I consider that the liabilities adjustment officers should not be men who look at the matter from a detached legal or accountancy point of view. I feel that they should have the benefit of legal and technical advice, but that they should be more human than technical in their work. This Bill is not a complete solution for those who have suffered immense losses as a result of the war, but to some extent it may save their homes and businesses and put them, as it were, in cold storage until after the war. By doing that it is bound to be of benefit not only to the debtors but to the creditors. I would ask my right hon. and learned Friend to make absolutely certain that there is full publicity given to this Measure. I hope that its contents will be broadcast in simple and plain language so that the ordinary man can understand what rights he has under its provision. Perhaps it would be possible to make use of the officers of the Ministry of Information, and enable them to have some sort of general outline which they could pass to people throughout the country. At any rate, in those stricken areas, I hope these provisions will be shouted from the rooftops.
§ Mr. Silverman (Nelson and Colne)
I would like to say at once that in my opinion this Bill is a very great improvement on anything we have had so far, and I should like to join with others in 307 congratulating the Government on having brought it forward. I say that with special pleasure to myself, because the two main things with which this Bill deals happen to cover the two points I ventured to make when the last amending legislation was considered by this House. The two points I made related, firstly, to the court which administered the Courts (Emergency Powers) Act, and, secondly, to the fact that it dealt only with pre-war contracts and the injustices which arose. I am glad to see that administration under this new Bill will be carried out in the county courts, which obviously are the proper places to deal with these matters. The old procedure, under the original Act, of having two solicitors and half-a-dozen affidavits, with the master in the bear garden, and half-a-dozen others standing around, as a satisfactory method of investigating the personal details of a man in difficulties through no fault of his own, seems to me to be as hopeless a form of administration as any which could Have been devised. I am glad to see that the administration of these problems will be dealt with in the courts which for very many years have day by day had the task of adjusting a man's means to his liability in a spirit of sympathy and justice. On that point I should like to say a few words about the liabilities adjustment officers. I entirely agree that the official receiver is almost the last type of man to appoint, not because of any lack of sympathy on his part, but because of the whole character of his training and the things he has to do in his professional career. He approaches the thing from the wrong angle entirely.
If we are to have, as was asked for just now, a human approach, then the last person in the world to go to is the man whose job has always been to screw the last ounce of benefit for the creditors from a man who, at any rate prima facie, is responsible for his own misfortune. The official receiver's job has been to go to a man in difficulties and obtain from him everything that can be got to satisfy the liabilities which he has deliberately incurred and which he is unable to discharge. But here we have something entirely different. Here the man is in difficulties through no fault of his own, but by reason of circumstances which no 308 one ever thought he could control. The circumstances which have put him in difficulty may sometimes be the result of direct Government interference, either in his own business or in the area in which he carries on his business. His difficulties might be brought about by enemy action, which obviously he cannot control, or in other cases it may be a result of the combination of the two. We do not want, in cases where we are attempting to adjust these difficulties, an atmosphere of critical examination and detailed investigation of the kind which it is the unpleasant duty of official receivers to undertake, and which they have very efficiently discharged. I should have thought that we had a body of men ready at hand with exactly the right kind of experience—I refer to the body of county court registrars. So many of them, and so much of their time, have been engaged either in administration orders or in judgment summonses. They have had the job of going to a man whose means are less than his liabilities and trying to see that justice is done as between creditor and creditor, on the one hand, and as between debtor and creditor, on the other. These men have been doing this for a lifetime, and there is no reason why they should not be able to continue to do it in this wider but very similar sphere.
I agree that this Measure is a vast improvement, but I do not think in principle the object of the legislation has yet been served. No one can prevent hardship occurring as the result of war circumstances, and no amount of legislation can put that right, but the real question is that of how the hardship shall be distributed. If there was no legislation of this kind, the hardship would lie where it fell, or, in other words, it would fall upon the shoulders of those least able to bear the burden. What the House desires, and has sought to do in this legislation, is to see that hardship does not lie where it falls, but that it is equitably distributed among all those concerned. It has been said during the Debate that hardship is something which ought to be shared by the State as a whole. It may be that there is something in that point of view but I do not think it is practical politics. I do not think it could be done, though more could be done than has been done.
But I do not approach it from that wide angle; I approach it from the point of 309 view that the specific hardship ought to be equitably distributed among all those concerned in the particular enterprise upon which the hardship has fallen—the debtor and all the creditors of that debtor. The Bill does not do that. It fails to do it because none of the principles, and none of the machinery, begin to apply until the debtor is in serious financial difficulties—until he is insolvent. That really will not do, and I do not think the House or the country will be content with it any longer. Suppose a man has one of these small businesses which used to pay its way and give its proprietor a modest but decent return on the capital and labour that he has invested in it. Suppose it has done that for a number of years, and the man has been prudent and has put money by and has a little nest-egg. Then the war comes, and the business has become insolvent. On the principle on which this legislation is framed the debtor should have the benefit of the legislation, but he will not get it until he is personally insolvent. He will not get it until he has put into the pool every penny that he has saved, every advantage that he has ever secured to himself by his labour, perhaps over very many years. His policies will go in the pool, everything he has will go into the pool, and not until he is in difficulties will he get any relief of any kind. This is a matter about which the Government ought to show more courage and more initiative. It is really non-controversial; it is certainly not controversial in any party sense.
If you have established that the principle as I have tried to describe it is the right one, and you apply it to the particular cases which are covered by the Bill, and if it is obvious that there is then a wide margin of cases which are not covered at all, then I say to the Government, let us have something more. If your principle is the right one, apply it properly. There are people, after all, who by reason of war circumstances have 'profited a good deal. Landlords are still in a highly privileged position. They are still priority creditors, and the schemes of arrangement which the first Clause of the Bill provides for retain all the priorities under the Bankruptcy Act, one of which is six months' rent. That must be the first charge, and no scheme is valid unless it secures it. One of the causes of embarrassment in these busi- 310 nesses is the fact that certain areas have had to be evacuated, and no doubt the value of land goes down in those circumstances, but the landlords in the area into which evacuation takes place derive considerable advantage, and so they do in other places where the Government are expending very large sums and developing areas, and site values have risen to an enormous degree. I think something ought to be done to bring that into the pool, and, if people have to suffer hardship by reason of their businesses being affected by war circumstances over which they have no control, it would not be a bad idea if you went to people who have secured uncovenanted advantages out of it and said, "Put that into the pool too." The principle, which we all accept, is certainly not being applied in the Bill, which gives no relief to anyone until he is in fact insolvent himself. The aid ought to have been given at an earlier stage. It ought to come when the business ceases to pay its way without reference to the private means of the debtor. If you have that, you apply your principle properly. Until you do it, you do not apply the principle properly.
I welcome the second part of the Bill, which extends the protection of the Courts (Emergency Powers) Acts in certain circumstances to obligations contracted after the war. Clause 25 states the conditions which must be satisfied before that relief is afforded:if the defendant satisfies the appropriate court that he is unable immediately to satisfy the judgment or order, or to pay the rent or money, by reason of circumstances directly or indirectly attributable to any war in which His Majesty may be engaged, being circumstances which arose after the contract, lease tenancy or mortgage was made or entered into and could not reasonably have been contemplated by the parties at the time when it was made or entered into.What in the world does that mean? There arc no circumstances that I can think of which could not reasonably be contemplated. They might not have been contemplated, but they could have been and if a defendant is called upon to satisfy the court that the war circumstances which prevent him from being able to carry out his obligations are circumstances which could not reasonably have been contemplated by the parties at the time it was made or entered into, there 311 is no defendant who will ever be able to satisfy the court at all. He may say, "I built a factory. It has been bombed. I never thought a bomb would drop on it, and the landlord never thought a bomb would drop on it, and therefore I am entitled to relief." The court may well say, and the creditor, if he does not want the advantage to accrue to the debtor, may say, "Are you really suggesting that in a war of this kind it was impossible for you to contemplate the possibility that a bomb might drop on your factory? "He could not suggest any such thing. If these words remain in the Clause the whole of Part 2 of the Bill is virtually repealed. No one will get any advantage out of it, because there are no circumstances of a kind relevant to this Clause which could not be reasonably anticipated. In the long run this may turn out to be a Committee point, but I thought it was worth making at an early stage because it Seems rather an important point. I should have thought the Clause would have been much better without the words.
§ Mr. Deputy-Speaker (Sir Dennis Herbert
The hon. Member is right in what he is saying, and therefore I hope he will not elaborate this point. It is a Committee point, pure and simple.
§ Mr. Silverman
I was only going to suggest to the Government that the proper way of dealing with it is to take out the words entirely and that then the conditions set out in the Clause would be fair and equitable to both sides. I would like to repeat the congratulations to the Government with which I began. This Bill is a great advance on anything we have had before, and because of that I should like to see the Government go further and try to apply their principle all round, without being afraid of the position into which it might lead them. The principle is fair, and if it is applied fairly, injustice will not be done to anyone.
§ Mr. Rhys Davies (Westhoughton)
I hope I may be pardoned by Members of the legal profession if I do not feel competent to go into the details of each Clause. This Bill appears to me to be more like a pamphlet than an Act of Parliament, especially in Clause 1. If it 312 were a pamphlet I should have a suspicion that the right hon. and learned Gentleman the Solicitor-General had something to do with drafting it. The House certainly ought to welcome the Bill, firstly, because people are being compelled to give up business owing to the restriction of supplies. I have been round some textile mills in my Division to find out what is happening there, and the situation is rather serious on that account in some cases. Secondly, the result of the concentration of industry will force persons thrown out of business to take advantage of this Measure. It is, therefore, an essential Measure. I think, however, that members of the legal profession on the Government bench too readily assume that the conduct of trade and business is a very easy matter. For instance, they thrust upon the liabilities adjustment officer in Clause 1 this sort of work:To preserve that business or to recover it when circumstances permit.I would like to see the adjustment officer who can do either of these things successfully. It is assumed by the Government that trade is automatic, that you can close a shop to-day, open it in six months' time and start business all over again just where you left off. Most of these small businesses are built not so much on the goods they sell as on the good-will of the person who owns or manages the shop. I do not therefore like the easy way in which the Government approach this matter. There will, of course, be a considerably larger number of persons applying for relief under this Bill than was the case during or at the end of the last war.
The small shopkeepers themselves have said one or two very pertinent things about the present situation and it is appropriate to ventilate them on this Bill. The War Damage Act deals with certain problems that arise out of enemy action. When, however, a man is put out of business by the restriction of supplies or by the concentration of industry and is thrown into bankruptcy, he is a victim of the war as much as if he were bombed out of his business, except, of course, that physical injury may result to the one and not to the other.
In my experience in the House of Commons it is not possible to include in an Act of Parliament all that matters to the people. It is what the adjustment officers will do that will count in the end.
313 The Lord Chancellor is to prescribe Orders under which the scheme will operate. I do not know whether those Orders will contain any provision to restart these unfortunate people in business, but I suppose that that is too much to ask. All that the Bill does is to arrange the settlement of accounts between debtor and creditor. I am not sure therefore that a demand will not come along in due course from people put out of business owing to the war asking the Government to do something to help them to re-establish themselves. One Member of the Government said to the shopkeepers flippantly the other day, "Sell up, put your money in Government securities and at the end of the war open your business once again." He ought to know that there will be no buildings for many of them to do so. Then, some are too old to work in any of the Government factories and will be unable to earn anything in the meantime.
Although this Bill makes no provision for that type I feel certain that something will have to be done when the war ends to put them back into some form of livelihood in the businesses they were conducting before the war put them out. The ordinary workman to-day can get a job almost anywhere, but when we come to members of the professions and shopkeepers of 55 to 60 years of age we have a human problem which even the Minister of Labour could not solve. I know an architect who could not get a job of any kind and in spite of having his name on the Central Register he has never earned a penny for 12 months. Then the War Damage Act was passed and he got a post. He is a constituent of the hon. and gallant Member for Withington (Flight-Lieutenant Fleming) and I am sure that I can gain his support in any remarks I make on this Measure critical of the Government.
§ Flight-Lieutenant Fleming (Manchester, Withington)
I will not go as far as that. I would not like to agree to the wide terms of the hon. Gentleman's remarks.
§ Mr. Davies
I hope the hon. and gallant Member will forgive me that aside. In conclusion, while I welcome the Bill, I trust the Government will bear in mind this central point. If you say that you are going to reinstate traders in business at the end of the war just where they finished off I hardly think you will meet 314 public opinion unless you do more than this Bill provides.
§ The Solicitor-General (Sir William Jowitt)
The House has listened to a very interesting Debate, and I think we can pride ourselves on the fact that in every speech that has been made we have been congratulated on our Bill, though slight criticisms have been made from time to time. We are very grateful for the obvious interest which Members on all sides have shown in the Bill, and I can say that we shall certainly take to heart the observations which they have made to see whether, by the combined efforts of all of us, we can improve it. The object and the point of this Bill is, as it is described in its Title:to provide for the arrangement or the adjustment and settlement of the affairs of persons financially affected by war circumstances.We have received some measure of criticism, particularly from my hon. Friend the Member for Faversham (Sir A. Maitland), who said that we lacked imagination and that he would have dealt with the matter in a very different way. He would have got away from adjusting financial difficulties by the simple process of removing the financial difficulties, and he would have removed them by getting my right hon. Friend the Chancellor of the Exchequer to issue sufficient bonds to get everybody out of his financial difficulties. Whether the Chancellor of the Exchequer would get into financial difficulties as the result of doing so, I do not know, but I would remind the House that the Prime Minister, when intimating that it was proposed to pass the War Damage Act, said in terms, "I can only do this if hon. Members will agree with me that these claims shall be limited, as they were, to structural claims for bombed buildings. If I am to be asked to provide for indirect and consequential losses brought about by the war, then it will open so wide the flood gates that it really becomes an impracticable task." The House as a whole assented to that proposition. It is perfectly true that if the Chancellor of the Exchequer were to issue bonds to get everybody out of his difficulties, it would be one solution of the problem, but that would be doing the very thing, and pressing for the very thing, which my right hon. Friend the Prime Minister said he did not want to be pressed to do.
315 If we are not going to have public money found to remove these difficulties, we have to adjust the difficulties as best we can, and I should like to show what we are trying to do and how we should try to meet the criticisms which have been levelled against us. In the first place, my hon. Friend the Member for North Aberdeen (Mr. Garro Jones) made the point, which has also been made in various quarters of the House, that almost everything in the Bill will depend upon the manner in which the liabilities adjustment officers get down to their task. I entirely agree that what matters is the spirit in which this Bill is administered. What you want to do is to try to get some friend in whom everybody has confidence in whom to confide, presiding as it were at a sort of round table conference where the debtor and his creditors are gathered and seeing, in the interests of everybody, what is the best thing that is to be done. Who is going to be appointed to that task? It is not for me to say, but obviously we want someone who can divest himself of what I may term the "old bankruptcy atmosphere." I dare say the official receivers might do it in some cases, but there is no intention of appointing them en bloc. We want a man who will adopt a new attitude towards a new problem. I am a little doubtful whether the registrars of county courts can be the right persons to appoint, because if the proceedings before the liabilities adjustment officers fail, the matter has to go before the court. Then it will have to come before the registrar, and it might be that he would be embarrassed if he had been acting in the previous proceedings. But certainly the suggestion which the hon. Member made will be borne in mind.
§ Mr. Garro Jones
The statement which the right hon. and learned Gentleman has just made would seem to imply that liabilities adjustment officers will not be full-time functionaries. May I ask whether that is to be the case? If they are full-time functionaries, obviously Registrars, when appointed, would resign their appointment in the county courts.
§ The Solicitor-General
I should think it will depend upon the particular areas. I should think that in some areas they will have to be full-time appointments, and in 316 other areas, where there will be less work, perhaps not; but that point will certainly have to be looked into. The other suggestion which the hon. Member made which I want to accept—he said it was very important, and various hon. Members have stressed the same point—was that publicity should be given to the passage of this Bill if and when it becomes an Act of Parliament, so that the people shall know what Parliament is doing to try to help them. With that I entirely agree, and we will certainly do what we can at the appropriate time to bring that about.
Then my hon. Friend the Member for Balham and Tooting (Mr. Doland) referred to this case, if I put it correctly: that a small shopkeeper, owing to difficulties of getting supplies or the removal of his customers, has found himself forced to sell up his stock. In that way he has realised perhaps £200 or £300, and that is to be his little nest egg, which he counts upon to enable him to restart in happier times. But he is under some liability to his landlord and is not in a position to say, "I cannot pay the rent." He can pay, because he has got that nest egg, but only at the expense, of dipping into that fund. The hon. Member asked how far that case was dealt with. If he will look at Clause 3 (1, b) of the Bill, he will see that we have not limited the rights of a debtor to those cases in which there would be what is normally called insolvency. We have given the debtor a right to apply even though he is in a position to pay his debts, and to pay them in full.
We provide there that he may apply if he can show that, owing to war circumstances, he is in such a position that, if he were required to pay his debts and to meet his future liabilities, he would be unable to carry on his business at all, or—these are the important words—would lose the means of recovering his business. In the case which the hon. Member put, the means of recovering his business would be the £300 or £400 which had been saved. In using those words, it was not our intention to deal merely with the case of insolvency, that is to say, the inability to pay your debts, but also with the case where you can pay your debts only by dipping into those resources.
§ Mr. Doland
Does that refer specifically to debts or to obligations under a leasehold agreement also?
§ The Solicitor-General
It refers to any obligations. It refers to the case in which a man, although he can pay his debts in full and can meet his future liabilities, is called upon to dissipate the savings which he has put by and which may be necessary to restart his business.
We had a most interesting contribution to the Debate from the hon. Member for Carmarthen (Mr. Moelwyn Hughes), who made a maiden speech. He made his speech with that certainty and assurance which I, who have listened to him for many years with admiration in the courts, have been led to expect from him. I am very glad to be the first Minister to speak after he has made his maiden speech. He also complimented us upon our Bill, and he made some observations in a helpful light which will certainly receive our consideration. It is, of course, the fact that, under the Bill, you may have big creditors, in the case of a householder, who, having more than half the debts, can prevent the scheme going through without reference to the court, but let the hon. Member bear in mind that though the matter, in that case, may have to go before the court, yet the court may receive the report of the liabilities adjustment officer under Clause 3 (5). We hope that, although in the case he puts the adjustment officer cannot settle the case, his influence will still cast itself over the case, in that he will report to the court.
Then the hon. Member discussed rent as other hon. Members have done. He seemed to think that landlords were in a rather privileged position. I am not quite sure that that is right. Let us just look at the position. In the first place, you may disclaim under the order, that is to say, you may get out of the lease altogether. On the other hand, if you are to continue to occupy somebody else's house, is it not fair that you should pay for it. not necessarily the rent which you agreed to pay, but what the house is worth, at any rate, and what the landlord could get from somebody else? After all, let us not make the mistake of imagining that all these landlords are very wealthy people. Some of them, we know, are not. If one of these tenants is not to disclaim, as he can do, but says, "No, I am going to occupy this house," is it not fair that the landlord 318 should say, "Although I cannot insist that you should pay me what you promised to pay, and I do not ask for that, yet you ought to pay me for occupying my house what I can get from somebody else for occupying it"? That is the reason for the limitation which we have put in.
The hon. and gallant Member for South-East Leeds (Major Milner) asked two questions with which I should like shortly to deal. First, he asked: "Are parties to be heard?" I think it is obviously necessary that they should be heard. You cannot affect a man's rights in the law without hearing what he has to say. It would be entirely wrong not to do so. Then he asked:"Ought there not to be an appeal?" There is an appeal in, I think, Section 34 of the County Courts Act. I am advised, and I have no reason to doubt, that the appeal will continue to be effective here on questions of law. Then he asked about the rules. He said he did not want to be in the position of merely having to accept or to reject the rules en bloc, and he would like the rules to be circulated in draft. I think I can say that the Law Society should certainly be consulted about the rules, and I have no doubt that they will be consulted. Equally I am sure that my Noble Friend would desire to have the advantage of consultation with all those who desired help. I hesitate, because I am not authorised, to make any promise about circulation, for the reason only that, as the matter is one of some urgency, if we were to promise to circulate the rules it might lead to a great deal of loss of time and delay. We will certainly see that we get the benefit of all the experienced advice we can upon this matter.
Then the hon. Member for Nelson and Colne (Mr. Silverman) raised several questions, one of which you said, Mr. Deputy-Speaker, was a Committee point, and will no doubt be there dealt with. I would only say that I think the hon. Member made rather a good point and we will certainly look into it and see whether we can meet it. Speaking from the very great experience which he has, the hon. Member gave us on the whole a blessing, qualified it is true; still, we value the blessing, and we will carefully consider the qualification. The hon. 319 Member for Westhoughton (Mr. Rhys Davies), in a breezy little speech in which he disclaimed any precise legal knowledge—though he showed that he was obviously cut out to be a lawyer—gave us also, on the whole, his blessing. We realise the difficulties of the small shopkeeper, and although we cannot contemplate dealing with them in the Bill on the generous lines for which the hon. Member for Faversham asked, we are doing all mat we can.
The hon. and gallant Member for Eastbourne (Major Taylor) is also with us. I think he said that his people had been pressing for a Bill on these lines for some considerable time past. One of the most satisfactory features of the discussion from the point of view of the Government is that various Members have claimed a quasi-paternity for the Bill, which indicates to us in the plainest possible terms that they are not dissatisfied with the offspring. The Bill does something to meet an exceedingly difficult problem. The whole situation moves quickly, and new problems develop, and I do not suppose for a moment that the Bill can be regarded as the last word. At any rate, it is a step on the road, and we shall see how it works. In the light of the experience we gain from it, we may be able to take further steps to obviate, as far as possible, the cruel hardships which are inseparable from war.
§ Question, "That the Bill be now read a Second time," put, and agreed to. Bill read a Second time.
§ Motion made, and Question proposed, "That the Bill be committed to a Committee of the Whole House." — [Mr. Whiteley.]
§ Mr. Silverman
I dd not wish to detain the House, but it did occur to me that it might be worth while to make a suggestion —
§ Mr. Deputy-Speaker
I would point out that this Motion is not debatable. Is it just one particular point which the hon. Member desires to ask?
§ Mr. Silverman
Yes, Sir. I wanted to ask whether, as this is a complicated matter, the Government would consider the possibility of committing it, not to a Committee of the Whole House, but to a Committee upstairs.
§ Question put, and agreed to.
§ Bill accordingly committed to a Committee of the Whole House, for the next Sitting Day.