Clause 2.—(PROVISION WHERE TENANT HOLDING OVER AFTER EXPIRY OF LONG TENANCY.) (Hansard, 4 April 1951)

§ Mr. Powell
I beg to move, in page 2, line 4, after "Act," to insert: but not before the twentieth day of November, nineteen hundred and fifty. Two difficulties were felt over this Clause in Committee. The first was that its provisions might have the quite unforeseen and undesirable effect that where 282 a tenancy expiring before the commencement of this Act had been prolonged, not at a higher rent but in consideration of a premium or other payment, that premium would become repayable and the old tenancy would be reinstated by the provisions of this Clause. That difficulty has been removed by the proviso to subsection (4) which was inserted in Committee and which it may be that the House will presently reinsert in the Bill in a different place and form.
The second difficulty which was felt still remains, and this Amendment aims at removing it. As the Clause stands, any person who is in occupation in continuation of a tenancy before the commencement of the Act is protected both before the commencement and after the commencement by Clause 5 from a notice to quit. Under the fourth paragraph of the First Schedule, even where an order for dispossession has been made, if it has not been acted upon, then it is not put into effect. It seemed to many of us that this was unreasonable where the expiring tenancy had come to an end before the provisions of this Bill were known.
It seemed to us that from the time when the Bill was published it was reasonable that tenancies expiring after that day, though before the commencement of the Act, should be continued to the commencement of the Act, and that a tenant whose tenancy expired during that period should not be liable to the effects of a notice to quit. As the Clause stands however, provided the former tenant managed to remain in occupation, by hook or by crook, up to the date when the Bill was published, however long beforehand his tenancy might have come to an end, he is still protected.
This resulted in the inequitable situation that the tenant of an expired lease who had managed to hang on got the advantage of Part I of the Bill, whereas had he acted in a reasonable and decent manner and recognised that his rights in the property were at an end, he got no advantage. It would seem, therefore, that this protection ought only to be given from the time when the Bill, and the intentions of the Government expressed in it, became public property, and that the date of continuation should not be pushed further back than 20th November, 283 which is the day on which the Bill was published.

§ Mr. Black
I beg to second the Amendment.
There is little that I desire to add to what has been said by my hon. Friend the Member for Wolverhampton, South-West (Mr. Powell). The Clause is an example of retrospective legislation, and without wishing in any way to detain the House by entering into a general discussion on that subject, may I say this is a case of unlimited retrospection. What the Amendment seeks to do is to substitute limited retrospection for absolutely unlimited retrospection.
My hon. Friend has made clear the apprehensions which many of us feel about the results of the Clause if the Amendment is not accepted. I do not want to detain the House by going over the ground which he has already adequately covered, but I draw attention to the fact that when this matter was under consideration at an earlier stage, the Attorney-General, while, I think, not agreeing with the view we then expressed about the possible results of the Clause, undertook to look into this matter again to consider whether there was not a great deal of substance in the apprehensions which we felt and which, on that occasion, we voiced.
I hope that the Government will agree to accept this very reasonable Amendment, which, after all, only takes out of the scope of the Clause leases coming to an end at a date earlier than the first publication of the Bill. It seems to us to be eminently reasonable to substitute this limited degree of retrospection for the absolutely unlimited retrospection which is embodied in the Clause in its existing form.

§ The Solicitor-General
When we considered the same kind of point during our discussion on the Clause in Committee I indicated what was the object of making this, as it were, an unlimited retrospective Clause. The reasons are these. Once one accepts—as hon. Members opposite do accept, in that their own Amendment has a retrospective effect—that the Clause should have retrospective operation, there is more reason to make it apply to a tenancy which expired long ago than there is to make it apply to one which expired only shortly 284 before the commencement of the Measure. Perhaps I may indicate the reasons for this, as I indicated them earlier in our debate.
Supposing the tenancy of a long lease has expired—say, some considerable time ago—and the ex-tenant of the long lease has remained on, either as a new tenant or holding over at the same rent, then the longer he has been in the premises in that situation—that is, under a new tenancy at the same rent, or holding over without any new tenancy having been formally entered into—the more reason is there, we think, for the tenant to have the relief which the Clause gives him.
Therefore, the attempt to limit the retrospective operation of the Clause, once one accepts that it must be retrospective to some extent, is greatly cutting down its effect and cutting out from its scope those very tenants who have the strongest claim. It would be leaving in the tenants who can only point to a short period of holding under the new conditions, under the substituted tenancy or holding over, but it would be cutting out from the protection which the Bill confers all those tenants who may have been in occupation for a considerable time under the terms of the new tenancy on the same rent. Therefore, we cannot help thinking that it would be a great mistake to limit the retrospective operation of the Clause, as the Amendment seeks to do. These are the reasons which I deployed earlier.
Of course, we think over all these problems which are raised in the course of discussion, but the more we think over this one, the more we feel confident we are right in saying that once the Clause is retrospective at all, once the retrospective relief is given, then it certainly should include tenants who can say of themselves that they have been in occupation of the premises, or part of them, for a long time back, their long leases having expired some considerable time before the publication of the Bill. For these reasons, I hope that the House will reject the Amendment.

§ Mr. Manningham-Buller
The Attorney-General said during the Committee stage: We thought that unless we took the date of the introduction of the Bill we could not find any earlier arbitrary date which would do justice between the parties. We must accept 285 retrospection in the unusual circumstances of this Bill, and it seemed to us better not to put any term to it."—[OFFICIAL REPORT, 31st January, 1951; Vol. 483, c. 943–4.] That is a rather weak argument. We accept retrospection down to the date of the introduction of the Bill, but neither the Attorney-General nor the Solicitor-General has advanced any argument for going further back than that. It is very easy to talk about tenants holding over for a long time, and that the longer they hold over the more they are entitled to protection. In the vast majority of cases—I hesitate to say all, because obviously one cannot find out—where there has been any lengthy continuance of occupation by the tenant after the lease had expired, it has been by virtue of an implied or express agreement with the landlord. If that has happened, there is no reason to assume that that continued occupation will in any way be terminated.
One evil attaching to unlimited retrospection is that it would put a premium upon the bad tenant, for whom there are no merits but who is persisting, in spite of attempts made to dispossess him, in retaining occupation of the property. In these days of housing shortage one does not like the idea of anyone being deprived of property, but, at the same time one has to consider the many people who are seeking accommodation. Although one can use the argument about the longer the tenant has been in occupation, the greater the protection he should have, no argument has so far been advanced for giving the Clause an unlimited retrospective effect, and we feel that it should be limited in its retrospective effect to the date of the introduction of the Bill.
I can only conclude by hoping—it may be a faint hope, but I hope, nevertheless—that the right hon. and learned Gentleman will give further consideration to this matter, because I am sure he dislikes as much as I do retrospective legislation in principle, and we are certainly getting far too much of it from the present Government.

§ The Solicitor-General
I beg to move, in page 2, line 11, to leave out "in continuation of the tenancy."
This is a drafting Amendment which paves the way for the next Amendment 286 on the Order Paper, which is to collect in two new paragraphs the various requirements which have to be complied with for Clause 2 to operate. If the proposed new paragraphs are included, these words "in continuation of the tenancy" are no longer necessary.