§ 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 comes before the House in the following circumstances. Early this year the Court of Appeal decided that a lease made for the duration of the war was invalid, the term of the duration of the war being uncertain. It is, I think, worth noting that the parties could have secured what they obviously intended by a valid document, which would have been upheld in the courts. That is to say, this was not held to be invalid because it was against public policy or because there was something wrong about it; it was merely that the parties had failed to adopt the form which would have made the agreement legally valid. If the parties had, in their agreement, said that A.B., the landlord, would let the house to C.D., the tenant, for a fixed period, 10 years, 20 years, or 999 years, subject to the right in either party, landlord or tenant, to determine the lease at the end of the war, that would have been a valid agreement.
That would have been exactly what they wished and intended to do—to enter into a contract which could come to an end, as desired by either side, at the end of the war. If a tenant wanted to stay on and the landlord was content, that could happen under any lease. They wanted to create a contract which could be brought to an end by either party at the end of the war. The Court of Appeal decided that, if they adopted the form which had been adopted in that case, simply saying "These premises are let for the duration of the war," it was invalid.
Although, as I have said, this result could have been attained, and no doubt in many cases has been attained, by a form which is valid, the result of our inquiries has led us to the conclusion that a number of leases have been entered into in the form which has been declared invalid in the case to which I have referred, and it seems to us right that we should ask Parliament to validate them. It is quite plain what the parties intended. One intended to take and the other intended to grant a lease for the duration of the war. Owing, perhaps, to some uncer- 711 tainty as to the law, and, no doubt, in certain other cases, to not consulting solicitors and getting the form right, there are a number of cases in which the form is defective, and it seems to us right that the bargain which the parties clearly intended to enter into should be validated. I answered a Question on 13th June to say that the Government intended to do that, and gave everybody notice that it was going to be done.
I think that, with that preliminary, I can come now to the general scheme of the Bill, which is simple, but which does raise a number of questions. I will go through its Clauses to tell the House what they provide. Clause 1, Sub-section (1), is the main validating provision, and it says that these leases are to take effect as if they were agreements for ten years, subject to a right, either by landlord or tenant, to determine the tenancy at the end of the war. I might point out, in case there may be apprehension on this point in some circles, that we have used words which keep such agreements as these as short tenancies for the purpose of the War Damage Act. It is a technical point, but I know solicitors have been concerned whether that was so, and I thought it might be useful to state it. The proviso deals with two small matters. There may be a case where a landlord found himself bound for the duration of the war, but was willing that the tenant should give a month's notice, or whatever it might be, at any time. We leave that bargain as it is. We operate on the duration of the war, on which the landlord was bound, but we do not, of course, take away from the tenant the right which the landlord gave him to terminate the lease at any time.
Under Sub-section (1) of Clause 1 we provide release unless there is express provision that it should be subject to a month's notice at the end of the war. Paragraph (b) preserves any special express provision there may be in the agreement for longer or shorter notice than one month. Proviso (c) deals with what is very likely to exist—an agricultural tenancy for the duration of the war—and it preserves the principle laid down under the Agricultural Holdings Act that the lease can only be terminated by 12 months' notice, which is right in an agricultural lease expiring at the end of the tenancy year.
712 Sub-section (2) does this. The expression in the lease which came before the Court of Appeal was, I think, "duration, of the war," but, of course, there are other expressions which have been used with the intention of producing the same result. Some documents may refer to hostilities and some may refer to the emergency, and it would, obviously, be silly to pick out documents which used the expression "duration of the war," and validate them, and leave other documents which used similar expressions invalid under the court's decision, and the object of Subsection (2) is to make it clear that we bring in all these expressions which have been used for this period.
I am going rather into detail, but it is useful that I should, because a number of people are affected and have grievances in one form or another. Sub-section (3) will deal with this class of case. We find that some people entered into agreements for leases for five years or the duration of the war, whichever is the shorter, and some agreements were for five years or the duration of the war, whichever is the longer. Our main purpose here is to interfere as little as possible with what the parties have agreed to, and if they had agreed to a period of five years or the duration of the war, whichever is the shorter, and the war came to an end, the lease would be terminated because the period had expired. On the other hand, if the lease was for five years or the duration of the war, whichever is the longer, and the war lasts longer than five years, then, of course, it will have to operate. I will not, however, go into all these various points which have been brought to our attention.
Clause 2 deals with the problem—on which I have had one or two questions in this House—of how we are to say when these leases are to come to an end. What is the end of the war? What is the duration of the war? Should it be dealt with, as last time, by Order in Council, or should it be left in uncertainty, with no one quite knowing what the courts will construe it as meaning? I have myself very little doubt that the courts would construe the duration of the war as meaning what we might call the whole war. They would not say, because Italy had gone out, that, therefore, the thing came to an end. They would not, I think, if Germany had gone out, say that it came to an end. They would say that the war 713 means the war in which His Majesty is engaged against his enemies and would therefore apply it to the whole war. I think they would also say that they could only have regard to the existence of a state of war in the technical sense, that is to say, they must regard the war as continuing until things happen this time, as they did before, which is not at all certain, and there has been an exchange and ratification of peace treaties. That, in the eyes of international law, is when a state of war comes to an end. We feel that that later date might well be a very considerable period of time after that which documents such as these have in mind. We therefore think—and we shall not please everybody—that the best procedure is, first of all, to have a presumption that the war means the whole war. That presumption could, of course, be rebutted. If people can point to something in the lease which indicates that the war there means the war with Germany, or is connected with bombing or the blackout or something of that sort, the presumption can be rebutted.
§ The Attorney-General
It must either be in the lease, or be in evidence that the court would accept as admissible in considering this matter. That is to say, as far as this matter is concerned we leave the parties very much where they would be if the whole thing were left to the courts. If you can show, either from what is in the lease or from the date of the lease, or that there are any circumstances which the court would admit as evidence, that it is the European war rather than the whole war, the presumption is adopted and the lease will be for the period of the war in Europe.
§ The Attorney-General
The normal rule is in some cases, as my hon. Friend knows, that you can bring intrinsic evidence, and we have used the expression "admissible evidence" so that parties can bring before the court exactly the evidence they could under the ordinary rules. We take power, therefore, to fix a date by Order in Council which will determine the end of the war, when we are concerned with the whole war, the 714 war in all theatres, and what is the date of the end of war, when we are concerned with the war in Europe or the war in any particular theatre. He would be a bold man—and it is unnecessary and would be wrong for me—to attempt to lay down what exact considerations we would be prepared to consider when the time comes for issuing these Orders in Council. We are dealing with agreements where parties have used an expression which is undoubtedly of some moment. I say, we shall not please everybody, but I think that we get closest to the intention if one takes a date some time after the cessation of active warfare but probably some time before the ratification of peace treaties or whatever is equivalent in the post-war settlement with our enemies. I do not think it would be right to regard the phase "the war" or "hostilities" as ceasing immediately the guns cease going off. Often after guns cease going off, they start going off again, and the cessation of the guns will be followed by a very full-scale occupation of territories. In this conception of the termination of the war, many elements enter. There are demobilisation of men coming back, the possibility of fresh building and new accommodation. We cannot please everybody, but we believe that it is in the interests of everybody that the date should be fixed as a certain date by Order in Council which should be made when circumstances have disposed of this. And in this matter we have the precedent of the last war.
Clause 3 deals with the question of savings. No doubt after the decision of the Court of Appeal there were cases—there were not many cases—where notices were given to terminate tenancy, some of which took effect before I gave my announcement in the sense that the tenant went out. We felt there was great difficulty in going back beyond the date when the Government's intention to legislate was announced by me on 13th June. Let me take the case of a notice given although it did not become effective. You never know where you are. The landlord may have taken action on the assumption that the notice was, as the notice was at the time, a perfectly valid notice. A tenant may have given notice and he may have taken action. Although I agree that this is a matter about which you could argue, we feel that it would be 715 wrong to invalidate notices which have been given before that date. Therefore, that is the basis on which Clause 3 applies.
I should like to say a word about Subsection (3) of Clause 3 which deals with this case. Suppose under one of these leases a notice had been given by one side or the other after the Court of Appeal and before the passing of this Bill. We want to see that that notice remains valid. It might have been said that, having been given in a lease, it was not invalidated. Clause 4 is the application Clause applying the principle of the Bill to Scottish law. I do not think I need comment on that at this stage; I have the Lord Advocate by my side. Clause 5 deals with Northern Ireland. This Bill will not apply to Northern Ireland but Sub-section (2) of Clause 5 makes clear what might otherwise have been doubtful, that the Parliament of Northern Ireland can, if they desire, legislate on these lines.
The only other matter with which I want to deal, is to tell the House that we shall be putting down a few Amendments. They are, most of them, of a drafting character to meet points to which solicitors and others have drawn our attention. There is only one point of any substance and I am sure that it will not be controversial. I think that it is right that we should expressly provide that this Bill should apply to the Crown. It is unlikely that the Crown has become tenant under a lease which has been invalidated under a decision by the Court of Appeal, but it is possible, because a great many things have been done and a great many agreements entered into, and if there are any such cases they should be put right.
§ The Attorney-General
They will be covered, anyhow. I am afraid that I have been rather more technical than usual in moving the Second Reading of this Bill but I feel that there are a number of solicitors and others who are interested in this matter and that hon. Members would wish it to be dealt with fully.
§ Earl Winterton (Horsham and Worthing)
I ought to disclose my interest in this matter and say that as a director and in other respects I am affected by 716 the Bill, but I only want to say a word of gratitude to the Government for bringing in the Bill. It was essential to do so. This matter has caused, in some respects, serious dislocation in business circles because of the absence of a proper definition. I am particularly grateful to the Government not only for attempting to make that definition clear, but for taking certain specific action in such cases by a declaration on their part, and I think that it will be welcomed in the business world.
§ Mr. Moelwyn Hughes (Carmarthen)
I am sure that the House will join with me in thanking my right hon. and learned Friend for his careful exposition of the very technical terms of this Bill. The fact that that explanation was necessary should give rise to a number of questions in the minds of hon. Members. The problem is very simply stated: It is that tenancies expressed to be for "the duration"—if I may use the colloquial term—have been held by the courts to be invalid, that is to say, they have been held to be agreements or tenancies of such kind that neither the one side nor the other can come to the courts to enforce them, and the Government have decided that they shall be validated by making them tenancies for 10 years, subject to determination by a month's notice on either side after the end of the war, that date to be fixed by an Order in Council.
That, in short, is the whole story and yet, such is the intricacy, such are the complications of our land laws and the laws of landlord and tenant, that we require these six pages of elaborate and carefully drafted provisions. Speaking for myself, I think these provisions have been very carefully drawn up and they provide for the contingencies which it is the expressed desire of the Government to meet. But again I would suggest to the House that this gives rise to another question. Here is revealed in a court of law a transparent deficiency in our Common Law: that it was unable, owing to the binding of precedents, to comply with the obvious intention of parties to an agreement. It arose in connection with tenancies, but it is far better known to my right hon. and learned Friend than it is to me that these deficiencies in our Common Law become revealed again and again. How often has one heard judges say, "I am very sorry, but I regret that 717 I am bound to decide in this way," and one might almost imply from the judgment of the Court of Appeal that they were a little reluctant to have to decide in the sense in which they did. Does it not follow from these disclosed deficiencies that we should have every year in this House an annual Law Bill to deal with all these deficiencies, and not deal with them one by one, or to deal with questions affecting land as having a priority over those that affect the limbs or the well-being of people who suffer from accidents, or whatever it may be? We ought to have a system of an annnual Law Bill that would tidy up the law as we went along.
§ Earl Winterton
May I interrupt my hon. and learned Friend who is dealing with such an interesting point? Is not the real answer, that if Parliament would only be more careful in passing its Statutes these difficulties would not arise? It is the words put into Acts of Parliament that lead to difficulties. [An HON MEMBER: "Not in this case."] No, but frequently.
§ Mr. Hughes
In answer to the Noble Lord, I am sorry to say that although deficiencies in the drafting of Statutes, and in the drawing up of Orders and Regulations, often give rise to difficulties in the courts, it is the ancient Common Law, based upon precedents and decisions in the courts, which gives rise also to quite as many difficulties. Perhaps I should beg the pardon of the House for having enlarged upon this very general topic, and go back to the particular problem with which the Bill is concerned.
I would like to express my appreciation that the Bill deals not only with the ordinary tenancies to which the Attorney-General has referred, but has made specific provision for dealing with agricultural tenancies. It is perfectly normal and reasonable to provide in the case of somebody who has vacated his house and left it empty for the duration, that a month's notice shall be sufficient at the end of the war to determine the tenancy; but such considerations would be most improper in the case of an agricultural tenancy which cannot properly, with fairness to landlord or tenant, be determined except at the normal quarter days, or better still, at the end of the agricultural year. One finds in Clause 1 (1) specific provisions that the general application of a month 718 after the end of the war shall not apply to agricultural tenancies but shall apply in the manner which I have already indicated.
The second specific matter to which I would like to draw the attention of my right hon. and learned Friend is the construction of tenancy agreements. The ordinary rule under the Bill is to be the rule that if the term "the duration" or "the end of the war" is used, that shall mean the end of the whole war upon which we are now engaged, as defined by the Order in Council, which means, in ordinary parlance, waiting until the end of the war with Japan. I venture to suggest that in almost every case where we will find this term "the duration" or "the end of the war," the intention in the minds of the parties who entered into the agreement was the end of hostilities in Europe, the end of the war with Germany. "Very well" says the Attorney-General, "that can be established by looking at the terms of the agreement, or by looking at certain extrinsic evidence." But the terms of the Bill are these: That that presumption that the end of the war means the end of the war all over the world can only be overthrown if it can be established that what was meant was the end of the war against Germany, and if that can be shown by admissible evidence.
The rules of evidence, according to our Common Law, are in many instances rather strange. One can look—as the right hon. and learned Gentleman said in answer to my hon. Friend the Member for Nelson and Colne (Mr. Silverman)—at the document itself, and at certain extrinsic evidence, but there is one thing that, according to the law of this country, the court is not allowed to consider at all, and that is the statement of the parties themselves as to what they intended. Now in ordinary practice between one man and another, in ordinary commercial affairs, there is nothing upon which we rely so much in order to interpret things as declared expressions of intention. It so happens, however, that according to our rules of evidence, according to our Common Law, declared expressions of intention are inadmissible. If a document includes the term "the duration" or "the end of the war," the parties would not be allowed to say "What I meant was this." I do suggest that something should be added to this 719 Clause for the purpose of defining and ascertaining clearly the intention of the parties and the fact that they did not mean the end of the total war but really the end of the war with Germany and that the laws of evidence should be relaxed. My right hon. and learned Friend promised to bring forward certain Amendments for our consideration on the Committee stage, and I hope he will consider an Amendment on those lines.
§ Mr. E. P. Smith (Ashford)
Surely a great deal depends on the date when the agreement was entered into. If it was entered into before the war with Japan presumably it would be the end of the war with Germany.
§ Mr. Hughes
I quite agree that that would be a factor which would be admissible, and that it would not require any declaration of intention. I am sure the Attorney-General would agree that the factor of the date would be most material to a tribunal in arriving at a conclusion as to what were the intentions of the parties. But I am pointing out the difficulties that will arise in agreements entered into after Japan entered the war.
There is another matter to which I would like to draw the attention of the Attorney-General and to ask the approval of the House. The Bill states that the date of the end of the war and of hostilities shall be declared by Order in Council. In the experience of many Members the terms used are often very varied in the agreements for which the Bill provides. One finds "For the war," "For the duration of the war," "For the period of hostilities," and "For the period of military operations." I suggest that the Order in Council, without prejudice to the generality of its provisions—to use the draftsman's term—should include specifically all the terms which are commonly used, so that a court of law is not faced with the difficulty of having to say whether "the period of military operations" is comprehended within the term "end of the war," or the term "end of hostilities." The form of the Order in Council should comprehend all the phrases generally found in agreements of this kind. In Bills of this kind, which deal only with matters which will arise over a period of time, I am always inclined to examine them to see whether the Government are optimistic or pessimistic about 720 the end of the war. I find on looking at Clause 1, Sub-section (1) that in order to make certain that they shall cover the duration of the war they make provision for a period of 10 years. That shows quite clearly that they regard 10 years as being the only safe term bringing within it the end of the war. As if that were not enough, the Sub-section says:any agreement …, which purports to create a tenancy for the duration of the war shall take effect as an agreement for a tenancy for a term of ten years … if the war ends before the expiration of that term. …In other words, the Government say, "We fix on 10 years, but we are not quite certain whether the war will end within that period." I am sorry to detect this pessimism in the Bill, but I am glad to turn to a note of optimism that will be found in Clause 6. The Bill contains provisions for determining the end of the war with relation to the war as a whole, or with relation to the end of the war with any particular State with which His Majesty is at war. Clause 6, Sub-section (2) says:… the expressions 'the war' and 'hostilities' mean … the war and hostilities in which His Majesty is engaged at the passing of this Act.In other words, if His Majesty's Government should be involved in hostilities with any other State than those with which we are involved at the present time they would not be comprehended within the terms of this Bill, or, to put it in another way, although they want 10 years or more in which to be certain that the war will be over they say they are satisfied that no other State is coming into the war against us. On behalf of my colleagues on these benches I welcome the Bill in its general tenor, and I express the hope that some of the suggestions I have put forward will meet with the approval of the Attorney-General.
§ Dr. Russell Thomas (Southampton)
I do not want to detain the House for more than a few moments, because the point I wanted to put has already been partly made by my hon. and learned Friend the Member for Carmarthen (Mr. Moelwyn Hughes). The point made by the hon. Member for Ashford (Mr. E. P. Smith) in regard to the date should be emphasised, and I would like, from this side of the House, to bring it again to the notice of the Attorney-General. We should fix the date, because it is clear that any- 721 one who made an agreement before December, 1941, could not possibly have had the Japanese war in mind. I think the Attorney-General should reconsider the point, because many people made agreements rapidly and hurriedly. Some went into the Forces and sent their families off to live with relations and let their houses, some gave up their businesses and shops, and moved from one place to another, either on Government work or on work connected with their business and let their homes and premises. People who made these rapid agreements—and there is not the slightest doubt there must be many—before December, 1941, must have had only the war in Europe in mind: the Japanese war had not begun.
I am not sufficiently well informed as to the number of people involved to justify my moving any Amendment myself on the Committee stage, but I would ask my right hon. and learned Friend to consider between now and then an alteration in the Bill in this respect. Although the Bill seeks to remove injustices it may inflict many more if it remains as it stands. I rather think, too, that the period of 10 years is too long, especially if, the point I have just referred to remains as it is in the Bill. Seven years might well be enough. With those few remarks, I beg the Attorney-General to consider whether some adjustment in regard to the first point I made can be achieved so that hardship will not be inflicted on this particular class of people.
§ Sir Stanley Reed (Aylesbury)
I should like to say a sentence or two in support of the argument which has been put before the House. Many of my constituents are very anxious about this issue of the duration of the war. I hope I understand my right hon. and learned Friend correctly in assuming that the Order in Council betokening the end of the duration of the war may be irrespective of any actual peace treaty that may be signed, because many of us apparently contemplate, knowing something of the Continent, that there may be no peace treaty formally for an indeterminate number of years, and the lack of that definite international document would not be held to debar the Government from issuing this Order in Council. My other point is that some people thought their contracts were entered into for the duration of the war with Germany alone. 722 Will not my right hon. and learned Friend consider the point that the duration shall apply to the war in which we were actively engaged at the time the contract was entered into, because an amendment of this very excellent Bill on those lines would go very far indeed to allay the anxiety and uncertainties which are now distressing a considerable number of people.
§ Sir John Mellor (Tamworth)
In giving my support to the Second Reading I should own up to being myself a party to an agreement of the kind covered by the Bill. I should be sorry to describe myself by reason of that fact as having a personal interest in the Bill, because I am sure that neither the other party to the agreement nor I would ever have contemplated for a moment taking advantage of the decision of the Court of Appeal to repudiate the agreement we have made. I think an agreement should be regarded as an agreement even if it is not legally enforceable. This brings me to my only quarrel with the terms of the Bill. I think it is unfortunate that in Clause 3 (1, b) provision should be made to enable those people who were smart enough to give notice to terminate agreements before 13th June to get away with it.
I am putting down an Amendment to omit that paragraph. Admittedly the House does not as a rule like retrospective legislation, and I think we should always avoid it if we possibly can. We are having retrospective legislation in this case and I think rightly, but I do not know why it should go back only to 13th June, the date when my right hon. and learned Friend announced the intention of the Government to legislate. I cannot see any objection to taking it further back and making it retrospective either to the date in February when the Court of Appeal gave its decision hi Lace v. Chandler, or even to the beginning of the war. The only people who would be hit by making it retrospective to that time would be the few who had no great respect for their agreements and were taking advantage of a legal technicality to get out of them. There is one question that has puzzled a good many people. Why did the Government delay so long after the decision of the Court of Appeal in February before announcing on 13th June that they would legislate? A good many people have felt that that 723 was an unnecessary delay and it has certainly penalised those people who have received notices before 13th June. Fortunately I think there have been very few cases in which people have sought on the strength of this decision to escape from their agreements, and that fact is in itself a tribute to the business honesty of the people of the country.
§ Mr. Silverman (Nelson and Colne)
I should like to join in expressing my appreciation of the extreme lucidity with which the right hon. and learned Gentleman has presented a rather technical measure. Though I am by no means prepared to oppose it I am a little inclined to think that it uses a very hefty steel hammer to crack a very small nut. I do not agree with the criticism of my hon. and learned Friend about the Common Law. I think the Common Law of the country has shown itself capable, over many centuries, of applying, with a sense of complete fairness, in changing circumstances, common sense principles to the relationships between the citizens of the country, and I do not think it would be improved at all by an annual Bill interfering with it. The decision of the Court of Appeal which necessitated this Bill was a very sensible decision in accordance with the Common Law principle that if two people make an agreement which they wish to keep enforceable it shall be possible to say what the agreement is and for what period it is to endure. All that the Court of Appeal has said is, If you put into your agreement a form of words which makes its duration completely indeterminate, so that it could presumably go on for ever or conceivably terminate to-morrow, that is no agreement at all. The Court of Appeal was doing nothing new in saying that such a term of years was not recognised by our law. At the same time I think the Government are right in their view that there was a particular problem which had to be dealt with, but what was the problem? We are driven right back to the circumstances in which a great many of these agreements were made. I am certain that if it is the intention of the Government to give effect to the real intention in people's minds at the time these agreements were made, 10 years is altogether too long.
§ The Attorney-General
Whether we put in 10 or 999 years makes no difference 724 at all. It is simply a question of form. If it had been 999 years it would have been rather pessimistic, but the result is that the agreement should be terminated by either party on the termination of the war.
§ Mr. Silverman
I am grateful for that, but I do not think it affects my point that very few, if any, people who were parties to agreements made in 1940, 1941 or 1942 contemplated that the war would last for 10 years from that date. It was no part of their intention, if the war should last for 999 years, that they would be granting a lease for that period. The real intention behind the Bill is to give legal validity to what was really intended by the parties who entered into these agreements. If we look to what was really intended, I say that when the Government fix a period—I agree a maximum period—of ten years, they have fixed it altogether too long, because it is far beyond what people intended at the time.
When one looks at other Government Measures which are intended to come into effect after the end of the war, or which depend on the duration of the war for the period of their effect, one sees that the Government were not nearly so pessimistic as they appear to have been in this Bill. For instance, the Education Bill, which we were told was intended to come into force after the end of the war, is dated as coming into force some time in April, 1945. In certain provisions of the War Damage Act, which was passed in 1941, the period of the duration of the war was fixed at five years in 1941, so that the Act would expire in 1946. In putting in this Bill a maximum period of ten years, the Government are going far beyond what was in the minds of the parties to the agreements to which the Bill is intended to give validity. It would have been quite enough to have said five years. I hope that I am not making a purely technical point. Everybody who has spoken in the Debate so far appears to assume that the merits are all on one side, and that if we are to look at the common sense, the merits of it, we ought to validate the leases for as long a period as possible. I am unable to share that view, at any rate, in all circumstances.
A case of which I have some professional knowledge is that of a man and wife with two small children living, in 1941, in an area that was subject to heavy 725 enemy action. It was the desire of the Government, and rightly so, that children should not be kept in such areas and that they should be taken to safer areas. A great many people did what this gentleman did. He could not afford to keep two houses going, and he sought for means of letting the house which he occupied and taking another house for his family in a safer area. In order to fix a period, he chose the period of the war, the expectation being at that time that enemy action would continue for the duration of the war. He let his house to a young couple just married. It consisted of a number of reception rooms, four bedrooms, two bathrooms, two gardens and garage, and he was compelled to take very restricted accommodation elsewhere. That was a right and proper thing for him to do, but it would be wrong to say that the agreement should continue indefinitely or to say that, if a maximum period is to be fixed, it should be as high as ten years. I suggest that on the Committee stage it would be worth while to consider inserting some kind of saving Clause to cover cases of hardship.
I observe in one of the Clauses that where the tenancy comes to an end, it does not entitle the lessor to possession, because the lessee might well have rights under the Rent Restrictions Acts. Under those Acts, supposing you did not have the Bill at all, in all those cases to which the Rent Restrictions Acts apply—and I submit that that is the great majority of cases—the tenant would be at no great disadvantage, because he would be completely protected against notice to quit or an action for possession, by the Rent Acts, except in certain circumstances.
One of those circumstances is that the landlord requires the house for his own occupation and, in addition to that, is able to prove that greater hardship would be caused by refusing him possession of those premises than would be caused by granting him possession of them. I suggest that this class of case—I think there are many such cases—has been completely overlooked. In the case of houses that are not protected by the Rent Acts, no doubt a special provision of that kind might be made. I am not suggesting that any difference should be made between those premises which are protected and those which are not protected in this respect. I am saying that, suppose the war were to continue longer than most 726 of us hope it may, and suppose the result of this continuance and the result of the Bill unamended were to be that very much greater hardship were to be caused to the owner of the premises by reason of his being kept out of possession of them than is caused to the occupier of the premises; in those circumstances the court ought to have a discretion which they could exercise in favour of an owner who requires a house for the occupation of himself or his family.
I do not want to say any more than that about it. The over-riding consideration, as I think everybody admits, is: What did the parties really mean when they entered into this agreement? I quite agree with what was said a few moments ago from the benches behind me that an agreement ought to be kept, even though the form of words chosen to embody the agreement was such as not to give legal effect to the real intention. I say that we must look at what the real intention was and not at some fictitious or imaginary intention. I do not think anybody who entered into these agreements at that time ever considered that they were involving themselves in a 10-year lease or anything so long as that. If the Government insist upon having the Bill exactly as it is, without any saving Clause for hardship of any kind, they will do more harm by the Bill than the evil which the Bill is to cure.
§ Mr. Turton (Thirsk and Malton)
Surely the answer to the hon. Member is that the parties only intended the term to be the duration of the war and that unless the war goes on for more than 10 years they are getting what they intended. I rise because, in my view but only from a cursory glance at the Bill, it appears that the owners of agricultural holdings are not getting what they intended. If two parties had rented an agricultural holding for the duration of the war it is clear that they did not want an agreement from year to year but something which would end more abruptly than that. As the Bill is drafted, it will deny to the two parties what they have agreed to get between them. I would put my point in two short illustrations. There may have been in some parts of the country, a farmer or landlord, whose farming was interrupted by defence work and could not enjoy the whole of the farm by reason of that defence work. He, therefore, when the War Office or some other Department took part of his farm, let 727 the remainder to a tenant for the duration of the war at a much lower agricultural rent, thinking that by that means he could get that small portion farmed, and hoping that when the war was over he would be able to enjoy the whole of his farm.
That man will be denied that right, and when the war is over all he can do is to give his tenant 12 months' notice, and under the provisions of the Agricultural Holdings Act he will also have to pay him compensation to the amount of up to two years' rent. I think that man is not being treated very fairly. One may put the other side of it. There are numbers of cases of small men who for war purposes have wanted allotments or small agricultural holdings to provide food for their families during the war. Some of them have, indeed, engaged to take land for the duration of the war at a far higher rent than they could possibly have done during peace-time. With the passing of this Clause 1 (c) it appears to me these men will have to continue with the allotment or holding at that higher rent for 12 months after the date which is given by Order in Council as the end of the war. That seems to me to be a measure of injustice.
I do not think that the agricultural part of this Bill has been so wisely designed as the remainder of it. I quite agree that the remainder of this Bill clearly sets out what was the intention of the parties at the time they made the agreement. I think the same treatment should be given to those who have gone in for an agricultural agreement. I would ask my right hon. and learned Friend to think over Clause 1 (c) again and see if something can be done to avoid the pitfalls I have suggested.
§ Mr. Mathers (Linlithgow)
I am glad that this Bill has been brought forward because to me it gives for the first time some indication in certain respects of the shape of things to come. Some time ago I tried to get from the Prime Minister an indication of what kind of view people could take of agreements that had been entered into which terminated with the war, or were for the period of the war. I cited to the right hon. Gentleman the case of the agreement with the railway companies operating at the present time. One might say that the nation has taken a lease of the railways for the duration 728 of the war. In answer to my questions, which were put with the idea of providing those in the service in which I have spent all my working life with some idea of the kind of interpretation they might put on agreements of that kind, the right hon. Gentleman was very indeterminate. He would not go the length of saying how the point of time that represented the end of the war would be fixed. He would not even agree it was likely that at the end of hostilities there would be an Order in Council passed appointing the date which represented the end of the war. He said that these were matters for the courts to determine, and he indicated also that, of course, there were other people to take into account besides this Government, meaning, as I understood him at the time, our Allies.
In seeing reference to an Order in Council determining the end of the war, I take courage and hope from that, that perhaps here we have an indication of the kind of shape things will take in the days, which may be far ahead, or which may be immediately ahead, when the war comes to an end. I listened with interest to the idea that 10 years is a very pessimistic figure to put upon the period of the war; but often during the war we have wondered if it could be got over in 10 years, and if we were still in that mood we should be consoling ourselves now with the consideration that we were half-way through.
The principal point however that I wanted to raise is that which has been dwelt upon by my hon. Friend the Member for Nelson and Colne (Mr. Silverman). I think it is very important that consideration should be given to the position of people who, in all good faith, early in the war, handed over the tenancy of their houses to friends. I know of cases where husband and wife were living in a house, of which they had become the owners or were in process of becoming the owners, by paying for the house by instalments. They handed over the house, the husband going away with the Colours, and the wife going back to live with her parents, with the idea that immediately they needed the house it would come back into their possession. They have had to charge rent, but they have charged only enough to cover the actual outgoings upon the house. By the Rent Restrictions Acts they have handed over the house, and they cannot get it back, although the 729 husband is back from the Army, and he and his wife are living in the very circumstances which they were doing their best to provide against by buying the house.
§ Mr. Silverman
Unless it is a lease affected by this Bill, the Rent Restrictions Acts give them a remedy. I was pointing out that, in connection with houses affected by this Bill, there should be an equal remedy.
§ Mr. Mathers
I cannot go into the legal position, but there are people who are deprived of the opportunity of living in their own houses because they have handed them over, in all good will, to friends. The friendship has become a thing of the past, smashed beyond repair, but the tenancy of the house remains with the people who were allowed to go into it to meet their need at the time. If it were possible to provide in this Bill for cases of that kind and for the courts to determine where the greater hardship lay, a real injustice would be removed. I am sure that the Bill is to be welcomed, and I hope that it will be used to the greatest advantage, to bring decent treatment and fair play to all concerned. The Lord Advocate probably thought, when I got up, that I was going to raise some Scottish point. I read over the Clause applying this Bill to Scotland, and I could see nothing wrong with it. It seems to me admirable for the purpose, so far as my poor knowledge—I am not a legal man—goes; and I hope that the Bill will be quickly brought into law, and made as useful as possible, for the purpose explained by the right hon. and learned Gentleman in presenting it to the House.
§ The Attorney-General
By the leave of the House, may I, out of courtesy to those who have spoken, say that we will, of course, give careful consideration to the points that have been raised? They are, in the main, Committee points, and I do not think the House will either expect or permit me to reply to them.
§ Dr. Russell Thomas
May I ask—because a good many of us are interested in the point raised about agreements made before 1941—that these agreements should not require extraneous evidence, but should be regarded as expiring at the end of the war in Europe? May I press my right hon. and learned Friend to consider this point?
§ Question, "That the Bill be now read a Second time," put, and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Committee of the Whole House.—[Mr. Pym.]
§ Committee To-morrow.