NEW CLAUSE.—(Leases to continue in force notwithstanding variation of terms, etc.) (Hansard, 28 April 1948)

§ The Lord Advocate (Mr. Wheatley)
I beg to move, "That the Clause be read a Second time."
The purpose of the new Clause is to remove certain doubts which were expressed in Committee whether changes in the condition of a lease, brought about as a result of the operation of Clauses II and 14 of the Bill, would constitute a new lease. Hon. Members will remember that various Clauses provide for variations in leases, Clause II for variation of rent, Clause 12 for variation in the terms of tenancy as to permanent pasture, Clause 14 for securing written leases and for the revision of certain leases, and Clause 15 for the variation of rent in the case of a lease which has been varied under Clause 14. By the Act of 1923, Section 3, as amended by the present Bill and which is to be read as one with this Bill, there can be adjustment of rent following upon the execution of certain improvements by the landlord. When these points were raised in Committee, it was recognised that doubt might arise whether these variations had an effect on the lease—so much so that there are two Amendments on the Paper in the name of the right hon. and learned Member for Hillhead (Mr. J. S. C. Reid) to deal with the specific cases of Clauses II and 14.
Having considered the matter very carefully, we came to the opinion that it was better to have an omnibus Clause that would bring into the Bill all cases of leases which had been varied as a result of the operation of the Clauses of the Bill. Secondly, we thought it perhaps more logical to look at it from the point of view, not of the variation creating a new lease, but the variation giving a ground to one of the parties to a lease for pleading that the old lease had come to an end. Therefore, the present new Clause has been brought forward. In my opinion it meets the difficulties advanced in Committee, and, being of a more comprehensive nature, it is a Clause that should commend itself.
7.0 p.m.
I, personally, had some doubts whether or not these variations would entitle a party to the lease to say that he was justified in regarding the lease as having been terminated. A great deal might turn on the facts of the case, in determining the degree of variation, but we thought it was very undesirable to leave 460 either party to the lease in the position that he might have to go to the court to determine whether or not the variation was of such a nature that it justified him in regarding the lease as terminated. Therefore, to let the various parties—the landlords and the tenants—know exactly where they stood as a result of the variation in the conditions of the lease by virtue of these statutory enactments, we felt that it was better to include this comprehensive Clause, to provide that the lease would not be deemed to be determined, nor would it justify either the landlord or the tenant bringing proceedings in court to terminate the lease, unless by consent of the other party, leaving the free bargain of the parties as it always stood, when either party could go to the other and say, "In view of the changed circumstances I should like to bring the lease to an end." If they agree to that, there is no reason why they should not do so.

§ Mr. Snadden (Perth and Kinross, Western)
We have already had a very long discussion on our previous Business, and it is our desire to get through this Report stage as quickly as possible. On behalf of my hon. and right hon. Friends, I would say how much we appreciate that the Government have seen their way to move this new Clause. There is only one point which rather puzzles me, and which I should like cleared up. I am clear about Clause II on arbitration, that no new lease is created. However, the Lord Advocate will remember that in Standing Committee the simple point we put was that where Clause 14 is invoked, Clause 13 (2, a) would not apply on an arbitration award. I take it that under this Clause, in the event of an application for such an award Clause 13 (2, a) will not apply. If that is so, I think the Government have been sensible, because if it did apply, with 30,000 people on tacit relocation, there would be an enormous queue of people waiting to come in under Clause 13, making it quite impracticable to carry it out. I take it there is no doubt that this new Clause makes certain that no tenancy is created, and that, therefore, Clause 13 (2, a) does not apply.

§ Mr. J. S. C. Reid (Glasgow, Hillhead)
This new Clause was put down only a couple of days ago, so that we have not had a chance of putting anything on the Order Paper by way of Amendment. Per- 461 haps the right hon. and learned Gentleman will consider this. Under Clause 14 (1, b) an additional provision may be put in, or an existing provision may be modified. At line 25 the words are: but it contains no provision for certain matters; or in line 27: contains a provision inconsistent… This new Clause quite clearly deals with the case in which a provision which is inconsistent, is altered to make it consistent; but I am very doubtful whether the Clause covers the point of a completely new provision put into the lease which is adjusted by the arbiter under Clause 14. The Fourth Schedule contains half-a-dozen provisions, and it is quite possible that paragraphs 5 or 6 of that Schedule may represent an entirely new provision in the lease. I suggest for the Lord Advocate's consideration that after the word "that" in line 4 of the new Clause some such words as these might be inserted: "any new term has been added to the lease or," and then continue with the Clause as at present drafted. I think it might be said that if a new term were added to the lease, this Clause would not specifically apply, and, therefore, there might be litigation. Perhaps the right hon. and learned Gentleman would consider that with a view to a possible Amendment in another place.

§ The Lord Advocate
The hon. Member for West Perth (Mr. Snadden) asked whether or not Clause 13 (2) would apply to leases which had been carried on, for instance, by tacit relocation. He probably knows that there is a later Amendment to clear up the position with regard to tacit relocation, in order to make quite clear and beyond doubt that where a lease is carried on by tacit relocation a new lease is not constituted. Since Clause 13 (2) refers only to leases entered into after the commencement of this part of the Bill, it will not affect, in the first place, leases carried on by tacit relocation which were in existence prior to the Bill coming into operation; and it will not affect any lease which is carried on by tacit relocation, even if entered into after the passing of the Bill, because that will not be a new lease. Therefore, it will apply only to new leases entered into after the Bill comes into operation. That being so, it will not affect any lease, either before or after the coming into operation of the Bill, which is being renewed by tacit relocation.
462 I am indebted to the right hon. and learned Member for Hillhead (Mr. J. S. C. Reid) for his suggestion, which we will look at with care between now and the further stages of the Bill.