§ The Deputy-Chairman
The next two Amendments, line 3, to leave out "if," and to insert "unless," and in line 3, to leave out "reasonable," and to insert "unreasonable," which deal with the same point, might conveniently be considered as well.
§ Mr. Ungoed-Thomas
Thank you, Sir Charles. The purpose of the three Amendments is to give the tenant a prima fade right of renewal instead of, as provided by the Bill, putting the onus on the tenant to establish a case for renewal. This is merely to make the provisions of the Bill conform to what is already the practice of the good landlord. If there is a tenant in occupation, other things being equal, the good landlord would give the continuation of the tenancy to the sitting tenant. Similarly, I suggest that that behaviour should be embodied in the Bill.
Two points should be very much borne in mind in considering this matter. The first is that this is purely an interim Measure for the very short period of two years and in that case it is surely the obvious practical course to give the tenant the prima fade right of renewal so that his position can be considered fully when it comes to dealing with permanent legislation.
The second point that I wish to emphasise is that, as hon. Members opposite have mentioned time and time again in the course of the debate, we are dealing now with a period of scarcity in the provision of shop premises, and because of that it is most important also to bear 1407 in mind that the Majority Report recommendations were not at all directed to a period of scarcity. The Majority Report recommendations dealt with a period when it was contemplated that there would be plenty of premises available and permanent legislation—the opposite to what the Bill is dealing with; we are dealing with a period of scarcity of premises and temporary legislation. It is, therefore, no argument to refer to the Majority Report recommendation that the onus should be placed on a tenant.
I shall rely on three authorities in support of my contention. One of them is the Interim Report recommendation which dealt with exactly the same conditions as the conditions with which we are dealing in the Bill, a period of scarcity and interim legislation. Secondly, I shall rely on the hon. and learned Gentleman the Member for Wirral (Mr. Selwyn Lloyd), and I hope that he will support me in this Amendment. Thirdly, I shall rely on an Act passed by this Government, the Tenancy of Shops (Scotland) Act.
The Interim Report considered the matter very fully and recommended a prima facie right of renewal. The reasons are set out in paragraphs 49 and 50 on page 17 of the Interim Report. These paragraphs pose the case so succinctly that it will lessen the duration of my argument if I quote them. The Report says:If the general practice of good landlords is to grant renewals on reasonable terms to well-behaved tenants—and we are satisfied that, other things being equal, this is their general practice—their interests cannot be seriously damaged by a short-term measure enforcing this rule on the unconscionable. Further, we think that as an emergency measure the first method has the practical advantage of simplicity and of easy enforcement.The first method is to give a prima facie right of renewal to the tenant. The Report goes on:If the right of renewal is conceded in the general case, it is relatively easy to define the broad circumstances in which a landlord may reasonably be allowed to regain possession, even if there is room for different views as to detail. If he desires possession he will be able to justify his desire by giving a positive reason, e.g., getting rid of a 'bad payer,' pulling down a block of premises, extending his own business, etc.1408 I would point out that these exceptions in favour of the landlord are embodied in the Bill. Those are the considerations which, among others, induced the Interim Report to recommend that the tenant should have a prima facie right of renewal.
The reasons were also considered in detail in the Minority Report of my hon. Friend the Member for Oldham (Mr. L. Hale) and myself, and I should like to quote paragraph 12, on page 128, of the Minority Report:The reasons for preferring a prima facie right of renewal for the tenant … are set out in paragraphs 48 to 52 inclusive of the Interim Report.We go on:They are severely practical reasons and it was for those practical reasons that members of the Committee, holding different views of principle on the relationship of landlord and tenant, were able to join in recommending that the tenant should have a prima facie right of renewal. Some members only agreed to this course in an emergency where they thought practical considerations should be paramount. But the practical considerations, emergency or no emergency, were clearly considered even by these colleagues, who have since subscribed to the majority Report, as in favour of the prima facie right.Later the Report says:The strong objection of a prima facie right of renewal in the tenant is founded not on practical considerations, but on ideological considerations—the landlord's right of property, it is held, should not be impinged upon to the extent of giving the tenant a prima facie right of renewal.The hon. and learned Gentleman the Member for Wirral, in his final Report, on page 157, says:In my view the appropriate method of dealing with this situation is to provide as a short-term remedy a prima facie right of renewal. …If the hon. and learned Gentleman wishes me to quote any other part of his report I will gladly do so.
§ Mr. Ungoed-Thomas
Certainly. The hon. and learned Gentleman goes on:… subject to certain 'just exceptions' or cases in which the right to renewal would not be applicable. Such a remedy was proposed in the Interim Report of this Committee … of which I was a signatory.I quite agree. The "just exceptions" are provided for in the Bill. The hon. 1409 and learned Gentleman emphasises that in paragraph 5 of his Report. It says:The Interim Report, however, did provide an easily comprehensible method of dealing with an abnormal situation. …If the hon. and learned Gentleman wishes I will go on:… I regret that it was not implemented in 1949 by legislation to cover a limited period of, say, four years.The Shops Act, which was passed by this Government to ease the situation in Scotland in the same way as this Bill is designed to ease the situation, provided in Section 1 (3):Notwithstanding anything in the last foregoing subsection, the sheriff may, if in all the circumstances he thinks it reasonable to do so, dismiss any application.…I agree that is not as unambiguously worded in favour of a prima facie right as I should like, but the indication from this Bill is that the intention was that there should not be a dismissal of the application unless the court thought it was reasonable—in other words, a prima facie right in favour of the tenant.
For these reasons, I hope that my right hon. and learned Friend will be able to consider this Amendment favourably. It is in accordance with the good landlord's practice, it makes for greater precision in the court in dealing with it and avoids many practical difficulties, it is simply a recommendation for a short-term Measure, and is the course that has been recommended by every person who has subscribed to the general principle of protection during a scarcity period.
§ Mr. Hay
I hope the Government will resist this series of Amendments, because I regard them as wrecking Amendments. I do not think that the hon. and learned Member for Leicester, North-East (Mr. Ungoed-Thomas) has appreciated that the position he wishes to bring about will not be achieved by Amendments to this Clause. As I understand Part II of the Bill, it provides this right of renewal, but subject to the exercise of judicial discretion, because Clause 10 is written on the basis that the court shall have the right of considering whether, in all the circumstances surrounding the application, it is reasonable to grant it. I should have thought that was a reasonable provision to make.
As to the question of prima facie right of renewal, I express no opinion at this 1410 stage except to say that as the Bill is drafted these Amendments are out of place. If the hon. and learned Gentleman had wished to do so, it would have been more appropriate for him to provide this prima facie right of renewal when we were dealing with Clause 8. On the general point, however, I do not think it can be denied that it is to the advantage not only of the landlord and of the tenant, but of the business community —those who take and let premises as a whole—that there should be an opportunity given for a court to review any application made.
§ Mr. Ungoed-Thomas
I am afraid that the hon. Gentleman is under a complete misapprehension. I am urging, not that the tenant should not have to make application to a course—of course, he must—but that, having done so, he should have the prima facie right of renewal.
§ Mr. Hay
That is what I had in mind but I was putting it another way. As I understand the position, the hon. and learned Gentleman wants the tenant to have prima facie right of renewal, but if this Amendment were inserted in the Bill the effect would be that the hands of the court would be completely tied. [HON. MEMBERS: "No.") Then let me read the wording of Clause 10 which, with the Amendments, would be as followsSubject to the provisions of this section, on an application under this Part of this Act duly made the court shall, unless in all the circumstances of the case it appears unreasonable so to do, order that there shall be granted to the tenant a tenancy for such period.…If that is what the hon. and learned Gentleman intends, I suggest that the form of words already in the Bill is far more appropriate, because he is trying to bring in a double negative. Frankly, I cannot see the reason for the Amendments unless that is what he has in mind.
§ 6.45 p.m.
§ Mr. Manningham-Buller
I listened carefully to what was said by the hon. and learned Member for Leicester, North-East (Mr. Ungoed-Thomas), and I do not think there is any great substance in this point, which is very little more than drafting. I hope, therefore, that we shall not have to spend too long on it because time is running rather short. Of course one recognises that every good landlord will want to keep on a good tenant, no matter 1411 how long he has been there. Scarcity value does not affect that. All those cases will not come before the court at all, but will be agreed outside the court, as they are today. In our big cities it is quite astonishing the length of time that certain tenants have occupied premises, although it may be that the individual leases are comparatively short.
Putting on one side that category of the good landlord and the good tenant because they will not come within the bounds of this Bill, we are left with the case where there is either a not so good tenant or a not so good landlord. Clause 10 gives the power to grant the renewal when it appears reasonable to do so. The only effect of this wording is to shift the onus of proof. By shifting the onus of proof the hon. and learned Member is not incorporating into this Clause the practice that good landlords adopt towards good tenants. That is where I think there was a fallacy in the speech of the hon. and learned Member. There is not much in this point, but if it is the case of judging it a bit more in favour of either the good tenant against the bad landlord or in favour of the bad tenant against the good landlord, then I am inclined to think it should not be made. For this reason: that bearing in mind that part of this Bill will apply to any tenant—even if he has only come in a week before the expiry of the lease—we might get into difficulties if we adopted the wording proposed, since it would have the effect of tying the hands of the court. In considering whether it was reasonable to grant a renewal I would prefer that the court should not be limited in the way suggested.
§ Mr. Janner
It is not quite as simple as the hon. and learned Gentleman purports. There has been an interesting example of the question of onus in the Rent Restriction Acts, on the question of whether there should be proof by the landlord or proof by the tenant that there is greater hardship. It is a very material point. It is extremely important that the court should have the opportunity of knowing where it is going to lend weight on the question of general hardship. And it is not only that question. The Clause as drafted is peculiar because it says:Subject to the provisions of this section, on an application under this Part of this Act duly made the court may."—1412 Let us look at the next words—if in all the circumstances of the case it appears reasonable so to do, order.…The word "shall" must be introduced there because if it is reasonable in all the circumstances of the case and on such terms and conditions as the court in all the circumstances thinks reasonable, it is obvious that the court "shall" make the order, not "may."
§ Mr. Janner
The court is entitled to regard the word "may" as meaning that it has some extra discretion. Otherwise, why use the word "may"? The word "shall" should be used. That is point number one, and is quite obvious. [Interruption.] No, this is not a matter for discretion. It should not be within the discretion of a judge.
Therefore I suggest, quite apart from anything else, that this matter requires further consideration before the next stage of the Bill. I hope that my right hon. and learned Friend will regard the question of onus of proof as an important one and will give the tenant the right of not being the person on whom the onus is placed. The responsibility should be the other way round, so that when the court comes to decide the question, all other things being equal, the tenant should have the benefit.
§ The Solicitor-General
When we drafted the Clause we had very closely in mind the provisions of the Scottish Act. As it stands, the Clause provides that the court, if it appears reasonable to do so, may order the grant of a new tenancy. In other words, it seizes the court of the whole matter. It puts it within the purview of the court to take all relevant circumstances into account. No doubt, in a proper case, the court will have not the least hesitation in saying that the ordinary consequence is that a new tenancy should be granted.
My hon. and learned Friend the Member for Leicester, North-East (Mr. Ungoed-Thomas) wishes us to depart from that drafting because, he says, after all this is really the interim stage and. whatever may be appropriate to the final scheme, for a reason mentioned in the Interim Report we should in this interim stage shift the burden rather away from the landlord on to the tenant. To begin 1413 with, it seems to me that the drafting of my hon. and learned Friend will make very little difference as a matter of law, and that as a matter of practice it will make next to no difference. If one envisages any ordinary case coming before a judge who considers all the circumstances, then it seems to me that as a natural result it is most unlikely that he would come to a different conclusion, whichever form of wording is adopted.
In those circumstances and faced with that situation, what is the best course to follow? We have thought, and I still think, that the best course to follow is to adopt the wording which is already in the Scottish Shops Act. My hon. and learned Friend says, however, that if we adopt that, we shall be adopting the wording which he proposes, but he is not quite right about that. The wording in question which we have taken as our model is in Section 1 (2) of that Act, where the wording is to all intents and purposes identical with what we have chosen.
My hon. and learned Friend quoted the following subsection, but that is a refinement of subsection (2), and subsection (2), surely, is the material precedent which we should take into account in the drafting of the present Clause. If it was likely to lead to any substantially different results in practice, there would, I should have thought, be a stronger case for considering a departure from the wording of the Scottish Act, but as I have said, I cannot conceive that there would be much difference in practice.
What would be the difference so far as the court was concerned? The court would have this situation to deal with. It would know that in the Scottish Act there was the wording which appears in subsection (2). It would then be advised of the contrast of the wording which my hon. and learned Friend desires us to substitute for the wording of the Scottish Act; and if we are trying to make for clarity and to give the court something which it can really follow as a matter of guidance, it seems to me undesirable, unless there is some very substantial reason in honesty and justice, to depart from the wording which has already been tried and found to be officious for the purpose for which it is desired.
1414 I hope that for those reasons the Committee will agree that it would be unnecessary and unwise to depart from what really is a formula which has been already considered by the Scottish courts and which, as such, can be equally considered by the English courts, and to adopt in preference to it a formula which differs in a sense which will not be altogether easy to appreciate by the learned judges who construe it. The object of the change would not be perfectly obvious to them, and they would be left in the situation that there is doubt about exactly what the legislature were trying to enact.
I hope that the Committee will agree that the wording we have used is quite satisfactory. In the case of the landlord who is inclined to grant a tenancy to a sitting tenant who has proved to be a satisfactory tenant, if the matter comes before the court at all, as it probably would not, as my hon. and learned Friend pointed out, very likely that would be a circumstance which would weigh heavily with the learned judge.
I will endeavour to sum up what I have been saying. Nothing really of advantage is to be gained. What is proposed will make very little difference in practice. By departing from the terms of the Scottish Act, for no obvious and apparent reason, we would simply induce doubt in the mind of the judge, because he would not have been able to discern as a matter of any reasonable certainty what is the object of the departure. Therefore, I strongly urge the Committee to say that it is much safer in the long run to adhere to the formula which we already have and which has already been put into the Scottish Act, which deals with a very similar situation. It is an Act which is enacted year after year, and there is really no difference of principle which would warrant or make desirable a departure from the terms of the Scottish Act.
Mr. Leslie Hale
I really must press this matter a little further, because I think that the arguments which my right hon. and learned Friend the Solicitor-General has put forward are quite untenable and unacceptable. He started off with the proposition that there is really very little difference in effect between the Clause as drafted and the way in which it is proposed that it should be drafted, and he quarrelled with the Interim Report, which 1415 was very detailed and very strong on this subject. What are the grounds of my right hon. and learned Friend for saying that there is very little difference? What he means, as I understand it, is that the word "may" will be interpreted as the word "shall." Certainly he has put forward no single reason which the court could consider other than the reasons to which my hon. Friend the Member for Liecester, North-West (Mr. Janner) has referred.
Is it reasonable or unreasonable to make the proposed alteration? Taking into account the exceptions, there then arises the question, "Is there any over-Tiding discretion of the court?" Having made up our minds on this point, how could that discretion be applied, and what other facts are there which the court can consider? My right hon. and learned Friend says that there are no other facts and that, therefore, the court will say in effect that they have been given what is expressed to be a discretionary power but that, having considered all the relevant matters, they will regard it as an obligatory power if the relevant matters do not disclose any appropriate and proper exceptions. In other words, says my right hon. and learned Friend in effect, the word "may" means "shall." I cannot think of any worse argument to address to the House of Commons than to say that we should not alter the word "may" to "shall" because the court will regard it as "shall" and that in view of that it is not necessary to make the Amendment which is now being pressed.
The second argument of the Solicitor-General was to talk about a totally different Measure for Scotland, dealing with totally different conditions, and to say that there was a totally different Clause which my hon. and learned Friend thought meant one thing but which, my right hon. and learned Friend suggests, means another. My hon. and learned Friend quoted that Clause as supporting his point of view. The Solicitor-General quoted it as supporting the Clause as drafted. That seemed to me a reason for clearing it up and making the position certain.
I come now to the third point. My hon. Friend the Member for Leicester, North-West (Mr. Janner), referred to the Rent Restriction Acts and all the complicated decisions which we get. Anyone 1416 who has had experience of that knows that the right of discretion vested in the courts is often considered by the court to be an intolerable responsibility. [An HON. MEMBER: "No."] If the hon. Member who denies that refers to anyone who practices in the courts, he will find that, whether it is disrespectful or not, one uses the terms "landlord's judge" and "tenant's judge" because such judges, quite properly and definitely, have to apply not merely their knowledge of the law but, because of their discretion, their views on the law of landlord and tenant.
I remember one very good judge, an able county court judge, who always started off with the proposition, "The tenant has vacated his premises without notice and broken his obligation." That is the point of view expressed from the other side of the Committee and it would not have been expressed on this side of the Committee. I think it desirable in a matter of this kind that the court should be charged with a duty, which every member of the Interim Committee suggested they should be charged with, of determining the ascertainable facts on the evidence and not given an overriding discretion.
I would refer my right hon. and learned Friend to the Uthwatt Interim Report. I know everyone in the Committee would say that there could not have been any more able or learned chairman of that Interim Committee, or one whose views were more widely respected. The whole of paragraphs 49, 50 and 51 of that Report consists of long reasoned arguments for the granting of a prima facie right of renewal. That was signed by all the members of the committee except two and they, in their short dissenting Report, did not dissent from this point at all. In all essential purposes it was a completely unanimous view of that committee presided over by one of the most distinguished of Lord Justices of Appeal.
This is a matter we should not dismiss lightly. It is important from two points of view, from the point of view of legislation we are now enacting and the legislation we hope to seen enacted.
Paragraph 48 starts by saying that there aretwo possible methods of approach to the problem of providing greater security of tenure for business premises.1417 The purpose of one is to give prima facie right of renewal, subject to just exceptions, and it goes on to argue in paragraph 50, in the opening sentence:If the right of renewal is conceded in the general case it is relatively easy to define the broad circumstances in which a landlord may reasonably he allowed to regain possession.It first defines the prima facie right of renewal and then defines exceptions. It goes on to show what is sought to be done by this Amendment, to lay down what is the decent standard of conduct of the good landlord. It says that it was the practice of the good landlord to concede to the tenant a prima facie right of renewal unless there were some overriding special circumstances.
I hope my right hon. and learned Friend will consider this matter again. May I summarise by saying that if he says there is not much difference between the two there can be no possible objection to rejecting the recommendation and, if he suggests there is a substantial difference, then that is a difference which is most material to the tenant's application. My right hon. and learned Friend ought to accept the Amendment or define the measure of difference, or tell the Committee what are the circumstances which in his view the court have a right to consider apart from matters defined in the Clause.
§ The Solicitor-General
This is a point of difficulty and obviously the Committee are rather sharply and, I think, acutely divided. But it is also a point on which there possibly may be two views, and I suggest to my hon. Friends, having put the arguments they think necessary, that they might think fit to ask leave to withdraw the Amendment on this understanding. I certainly do not give an undertaking at all, but we will consider what has been said by my hon. Friends and what hon. Members opposite have said, and we will consider if we think it would be desirable to make any change in the direction suggested. I hope that with that assurance, given without any undertaking, they will agree that the matter is difficult and needs further consideration and will, perhaps, ask leave to withdraw the Amendment.
§ Mr. Selwyn Lloyd
I wish to make a comment as my name has been mentioned more than once in this debate. I think there is considerable substance in what 1418 has been put forward and, with certain qualifications, I do not withdraw my signature from the Report. I think there is a good deal to be said for simplicity in this matter, but I would add this—and I can do so with the greater confidence as I think I have the agreement of the two hon. Members opposite who have put forward this Amendment—I think this matter is tied up with the next Amendment on the Order Paper in my name.
What I do not like about the Clause as it stands is the complete and absolute discretion given to the county courts. Speaking for myself I would be rather in favour of prima facie right of renewal and a fair amount of discretion, and I think the two things should go together. Subsection (3) does bear on this point to a considerable extent because it apparently seeks to lay down where the onus of proof shall be. I suggest to the right hon. and learned Gentleman that if he is reconsidering the matter, as he should, he should also have regard to what appears in that subsection.
§ Mr. Ungoed-Thomas
I cannot agree with everything said by my right hon. and learned Friend, but I appreciate that it is a matter of some difficulty to see exactly what its effect is. I very much appreciate what my right hon. and learned Friend has said about the consideration that he will give to the matter. In those circumstances, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ The Chairman
I propose to call the next Amendment, in the name of the hon. and learned Member for Northants, South (Mr. Manningham-Buller), in page 9, line 5, to leave out the second "such," and to insert "a fair market." With it, if the Committee agree, we could discuss the Amendments also in the name of the hon. and learned Member for Northants, South, and the Amendment in the name of the hon. Member for Leicester, North-East (Mr. Ungoed-Thomas), both to line 19.
§ Mr. Selwyn Lloyd
I beg to move, line 5, to leave out the second word "such" and to insert a fair market."
I agree with the course you suggest. Major Milner, and I think it would be extremely convenient to discuss the definitions at the same time as we discuss this Amendment. The insertion of the 1419 words "a fair market rent" and any attempt to define what the rents should be does not involve extra application to the court and there is no question of putting forward something which will involve further litigation. As the Clause stands, when the application is made to the court for renewal, the rent at which it is to be granted is left entirely at the discretion of the county court and I do not think that is satisfactory. This puts far too great a burden on the county court.
Mention has just been made of the different views which may be taken by various county court judges. Circumstances may change from place to place and in some places there are county court judges, sitting in the same courts on different days, who may have completely different views of this matter. If we leave the matter entirely to the discretion of the county court, there is serious danger of these applications being dealt with in entirely different ways in different parts of the country and that would not be satisfactory. In the same town we may have a similar application dealt with in a different manner because a different judge may be sitting the day when the application comes forward. I therefore urge the Committee to assist the court in some way by putting in some sort of guidance on this question of rent.
We have suggested the insertion of the term "a fair market" rent. In the further Amendment we seek to define that fair market rent. The hon. and learned Member for Leicester, North-East (Mr. Ungoed-Thomas), and the other hon. Members opposite, in whose names there is an Amendment following the second of the two we are discussing, also seek to give guidance to the court in estimating the rent at which a renewal is to be granted. Their Amendment is in page 9, line 19, at the end, to insert:In estimating the rent the Court:I do not think there is a great deal of difference between the two forms of words. To examine first the similarities may be the best way of trying to achieve agreement. In our later Amendment we say that:
- (a) shall have regard to the general level of rental values obtaining in respect of comparable premises in the locality and to the practice of a good landlord in according preferential terms to a sitting tenant; and
- (b) shall take into account the other terms of the proposed lease; but
- (c) shall not take into account any increase in the rental value of the premises which is due either to goodwill which may
1420 have become attached to the premises by reason of the tenant or his predecessor in title having carried on thereat a particular trade or business, or to any improvements to the premises carried out by the tenant or his predecessors in title otherwise than in pursuance of an obligation owed to the landlord or his predecessors in title."'a fair market rent' shall be such rent as in the opinion of the court a willing lessee other than the tenant would agree to give and a willing lessor would agree to accept for the premises having regard to the terms of the tenancy …Then we say that it must be:irrespective of any goodwill … and irrespective also of the value of any improvements for which compensation would be payable if no new tenancy were granted.Stopping there and looking at the Amendment in the names of Members opposite, one sees that they suggest that the court should have regard:to the general level of rental values obtaining in respect of comparable premises in the locality and to the practice of a good landlord in according preferential terms to a sitting tenant;We considered this matter in the Interim Report, and I think that the form of words which has been chosen by Members opposite in their Amendment follows very closely the wording of the Interim Report. I suggest that there is not much difference between that and our Amendment, which follows more nearly the wording of the Majority Report in the Final Report. The difference, so far as I have been able to ascertain, lies in the words:the practice of a good landlord in according preferential terms to a sitting tenant.I should have no objection to that proviso being included in the appropriate definition.
Then the proposed Amendment of hon. Gentlemen opposite goes on:and(b) shall take into account the other terms of the proposed lease;That corresponds to:having regard to the terms of the tenancy, …1421 in our Amendment. Their Amendment goes on:and(c) shall not take into account any increase in the rental value of the premises which is due either to goodwill which may have become attached to the premises … or to any improvements to the premises …which again follows our form of words. We say in our Amendment:that in estimating the rent which a willing lessee would agree to give for the premises the Court may disregard any offer made to the lessor which appears to the court to he substantially in excess of the rent which might be expected for the premises.That is an attempt to define the so-called freak offer, which on both sides of the Committee we seek to have excluded from the definition.
I suggest that there is not a great deal of difference between these two definitions. I do not propose to argue in great detail the actual merits of the wording, but in principle I think that those who have put their names to both these Amendments are really agreed that we must seek to assist the court to some extent, and that if there is to be a prima facie right of renewal it is fairer in the interests of both parties that it should be at what is called the fair market rental, excluding the freak offer.
Although the suggestion will be made that this is only a temporary standstill provision, my own view, as I have indicated, is that Part II of the Bill is very much better than Part I. That is certainly one of the reasons why I did not vote against the Second Reading of the Bill. I think that Part II is well worth saving. It may very well be that it will have to be extended from year to year —I do not know—but I think that the Government should be very careful in regarding Part II as a purely temporary standstill Measure. It is based on much sounder ground, which could be made even sounder by seeking to give some assistance to the court in this matter of rent.
§ 7.15 p.m.
§ Mr. Ungoed-Thomas
I agree, of course, with the hon. and learned Member for Wirral (Mr. Selwyn Lloyd) that we both wish to give greater precision to the instructions under which the judge is to act. I also agree that we both wish 1422 to exclude from the judge's consideration in fixing the rent both the improvements that have been made and the attachment of any goodwill by reason of the tenant having carried on a business or trade at those particular premises. The difference between us, or which did come between us before the hon. and learned Member spoke, is between the words:shall have regard to the general level at rental values ….and the words in the Opposition Amendment:such rent as in the opinion of the court a willing lessee other than the tenant would agree to give and a willing lessor would agree to accept …The other difference is with regard to the words in our Amendment:to the practice of a good landlord in according preferential terms to a sitting tenant.I understand that, so far as the hon. and learned Member is concerned, he makes no further objection to that provision. I propose, therefore, merely to acknowledge that it is dealt with in pages 66 and 67 of the Majority Report, and I will not take up any further time in arguing that provision.
I return to the difference between the lessor and lessee criterion and the general level of rental values criterion. The difference between them is that we would exclude scarcity value while the Opposition would not exclude scarcity values except for a freak rental. They would, by their proviso, exclude the exceptional, mountainous, solitary offer; we would exclude not only that but the rise due to the scarcity, which means a more widespread level of criterion.
§ Mr. Selwyn Lloyd
But the wording of the hon. and learned Member's Amendment is:shall have regard to the general level at rental values obtaining in respect of comparable premises …which seems to me bound to contain a certain amount of what is called scarcity value.
§ Mr. Ungoed-Thomas
I am afraid we are getting down to splitting hairs. I quite agree with the point that the hon. and learned Member has made that the rents of comparable premises would include a certain amount due to scarcity values, but they would include a vast 1423 amount not due to scarcity values. It is quite true, as the hon. and learned Member says, that there is a certain amount of scarcity value involved but taken by and large it is fairly limited, and the difference between us is that the Opposition wish to confine the provision to the exclusion of freak rentals and we want to exclude much more.
I wish to put forward the argument as to why our proposal should be accepted rather than that of the Opposition. The Majority Report dealt with this matter, and it is the proposals in that Report which have been adopted by the Opposition. Those proposals were designed not for a period of scarcity but for a period when plenty of alternative premises were available. The Majority Report was also designed for permanent legislation. Here we are dealing with the very opposite conditions; we are dealing with a period of scarcity and with an interim, standstill, temporary Bill only. Therefore, the Interim Report is the one the circumstances of which are identical with the circumstances which we are contemplating, and with which we are attempting to deal in this Bill.
The hon. and learned Member for Wirral signed the Interim Report, so that I am not surprised to hear him say that there was not such a great deal of difference between us; but what difference there is between us is in favour of the Interim Report recommendation rather than the Majority Report recommendation.
§ Mr. Selwyn Lloyd
Will the hon. and learned Gentleman agree with me that, whatever difference there may be between us about it, there is a gulf between both of us and the Government?
§ Mr. Ungoed-Thomas
No, I do not think there is in effect. I think that the difference between the Government and both of us is that we want greater precision. The difference between the whole of this side of the Committee, including the Government, and the other side of the Committee is that we wish to produce a fairer rental criterion for the ordinary tenant than is put forward by the Opposition. I prefer the Interim Report to the Majority Report and I call it to my aid.
I should like also to refer to the speech by the hon. Member for The High Peak 1424 (Mr. Molson) on Second Reading. I regret that he is not here now. I told him I should refer to his speech, but unfortunately he is engaged in Parliamentary business in another part of the House and is therefore unable to be in the Chamber. I wish to refer in particular to the part of the speech where the hon. Member replied to an intervention by the Attorney-General, but before I come to that I will read the preceding passage:A constituent of mine who has occupied a shop for 10 years has paid a yearly rent of £65. When the rent was due for renewal he obtained the opinion of a valuer, who suggested that at present a fair rent would he £90 a year, an increase of approximately 50 per cent. over the 10-year period. The landlord sought to obtain a rent of £250. We on this side of the House do not desire to enable landlords to take advantage of a temporary condition when there is an acute shortage of accommodation of that kind. I suggest that it is necessary that the county courts should he given guidance as to what would be a reasonable increase in the rent as a result of the change in the purchasing value of money.THE ATTORNEY-GENERAL: I listened with great interest to what the hon. Gentleman has just said. Does he think that we should have some provision to exclude scarcity value?Then the hon. Member for The High Peak replied:Yes, that is my personal opinion. I entirely agree that scarcity value should he excluded."—[OFFICIAL REPORT, 6th December, 1950; Vol. 482, c. 456.]I hope the Government will be able to accept the Interim Report recommendation on this; to give more precise guidance to the county courts than is contained in this Bill, and to make it in such a form as to eliminate scarcity value in deciding what is the rent.
§ Mr. Weitzman
I agree that some criterion ought to be given to the county court judges in determining what is a fair rental value. There is one criticism I would make of both the Amendments. They both use the words, "irrespective of any goodwill" which might become attached to the premises by reason of the tenant's trade.
Hon. Members will be familiar with the words used in the Landlord and Tenant Act, 1927, and they must realise the enormous amount of litigation which has arisen as a result of the way in which these words have been used. We have had all sorts of definitions of "goodwill." Hon. Members will remember the analogies drawn and the comparisons 1425 with the animal kingdom—the rat, cat and dog, and so on. It would be very unfortunate if in another Act of Parliament we allowed these words to go in and the tenant or the landlord to be subjected to the perils of litigation in the way they have been since the Act of 1927 was passed.
I suggest that some words ought to be used which would define with precision what is meant by "goodwill" so that the risk of litigation in the way I have suggested would not arise. Subject to that criticism, I agree that at any rate some Amendment ought to be accepted by the Government which gives some guiding principle to county court judges in determining what the rental value should be.
The Amendments from both sides have been most attractively argued, and are not unattractive in their object; but our view about each of them is that, far from simplifying proceedings in the county court, in practice they would be likely to complicate them, in the sense that they are much more likely to lead to widespread employment of valuers and examination of other cases of purchases, sales and rentals in the area over the past period, and so generally to result in the whole procedure being more litigious than it would otherwise be.
I am sure hon. and learned Members have, as I have, great confidence in the county court judges of this country. They are very close to the people with whom they have to deal, and they are familiar with the circumstances existing in their areas. When they are required, as sometimes they are by Statute, to sit rather like a Cadi under a palm tree and administer justice in that way, they generally exercise that jurisdiction with great success, and with justice and satisfaction to all parties concerned.
Moreover—and this in practice is, I think, a point which hon. and learned Members on both sides of the Committee will appreciate as being true—if the matter is left to the county court judges, and rather at large, without any set formula having been laid down in the statute which the parties themselves can work out, or think they can work out, in the event they are far more likely to negotiate a settlement between themselves on the terms which are agreeable to 1426 them, if not in regard to the other conditions of the tenancy, at any rate in regard to the rent which should be paid, if the county court judge decides that a new tenancy should be granted at all.
In reaching that general conclusion we have been very much impressed by the experience in the Scottish Act. Points which have been made in the course of our discussion on these two Amendments could equally well have been made in the discussion on the Scottish Bill when it was before the House, and could equally well have arisen in practice before the courts in Scotland administering that Act. But the practice shows that they have not arisen. So far as we have been able to ascertain, this has never been a cause of difficulty. When cases do come before the courts for assessment of the rent, the local courts do what they think is right in all the circumstances.
But in practice the rent point is very often a point which does not come before the court at all; perhaps for the very reason that neither party knows what is the formula. Neither party knows which view the county court judge—or the sheriff in Scotland—will take. Therefore, each party thinks it better, rather than to gamble on the result, to arrive at a negotiated settlement in regard to the rent, in the event of the judge deciding to extend a new lease.
I know that it is very nice to try to set out by Statute rigid formulae of one kind or another to control the activities of the courts. When that is done—and very often we do it—the courts say, "Well, we are within the iron framework of this Statute. We have to apply this thing. It may not be very just in the circumstances of the particular case, but we have no discretion left. The case is one where a new lease ought to be granted, because, we must apply the formula." On the whole, in matters of this kind, in legislation which is only intended to cover a short period, and regarding leases which themselves can never be more than of a year's duration, we think it better to leave the matter to the county court judge.
But certainly we would feel, if a formula were to be provided at all, that it would have to be one which in our view would exclude what is called the scarcity value. Whether it should exclude the special value is another matter, and 1427 hon. Members on neither side of the Committee have devoted their attention to that point, which shows the difficulty of providing any formula at all. Scarcity value arises from the fact that there is a shortage of premises of that particular kind. When the landlord is on a seller's market he can claim a much higher rent than he might be able to do if the supply were nearer the demand.
The special value is something quite different. It arises either out of the particular situation of the premises or the fact that those are the only premises available in the neighbourhood for the purpose for which the tenant wants to have them. I do not know, and hon. Members on neither side of the Committee have sought to say, what they would do about the special value.
It is true, as my hon. and learned Friend the Member for Leicester, North-East (Mr. Ungoed-Thomas), pointed out, that hon. Members opposite have departed from the position which they took up on Second Reading in regard to scarcity value. My recollection of the Second Reading debate on the matter was that hon. Members had said that they disclaimed any intention to include, in the formula which they wanted to introduce in the Bill for fixing the rent, any scarcity value due to the present shortage of accommodation. Of course, this Amendment of the Opposition is inconsistent with that disclaimer. Once we start putting in a formula of this kind based, as I think any formula must be based, on references to some kind of market value—we have tried, for instance, the 1939 market value plus 60 per cent.—all these difficulties arise. Are we to have regard to the scarcity value? Are we to have regard to the special value? Should we exclude—and I agree that we should—the freak value, and so on?
§ Mr. Selwyn Lloyd
The Attorney-General has sought to make rather a party point about the Opposition withdrawing from a certain attitude it had taken up. Does not he agree that in both these definitions there is a certain amount of scarcity value included? In fact, scarcity value is not a technical term. It has never been defined and it 1428 must have relation not only to present shortages but to all sorts of other factors.
I do not seek to make a party point. My suggestion is that, hon. Members having disclaimed any intention to compel the county court judge to include a scarcity value in his assessment of the rent, have now found that it is extremely difficult to draft an Amendment embodying the point. Perhaps my hon. Friends on this side of the Committee have been rather more successful. I would have thought that the Amendment in the name of the hon. and learned Member for Wirral (Mr. Selwyn Lloyd) does not successfully exclude—indeed, it does not purport to exclude—scarcity value at all. We would certainly want to exclude it if we were putting any formula in this Bill.
I invite the Committee to say that the difficulty of drafting a precise formula which will enable the learned judge to have regard or not to scarcity value, special value and so on, is so great that it is much better to leave the whole matter to the judge sitting if you like as a cadi under the palm tree. What he will do when he gets these questions is what the judges in Scotland have done on the occasions when they have had to deal with the matter. The judge is told by the Act that he has to look at all the circumstances and fix what he thinks would be a reasonable rent having regard to all the circumstances.
I have no doubt that one of the points he would have regard to—one of them— would be the state of the market, and he would consider the terms of the existing tenancy, any variation that he was proposing to make in the terms, and the general state of the property. If it appeared to him in examining all the circumstances that the local market rents, to which presumably he would have regard and with the state of which he would be very familiar without having expert evidence called before him, appeared to be unreasonably high, he would probably think that a reasonable rent would be something below the present inflated market value—inflated because of the scarcity of similar premises.
If, on the other hand, the existing rent under the old tenancy, which might have been running for some considerable time, appeared to him to be unduly low having 1429 regard to existing circumstances, that would be a reason for going above the existing rent and putting something more on it. One cannot really do better than look at the experience of the actual working of this system in Scotland. It is easy for us to talk about these matters from a purely theoretical point of view and to agree that it would be very much nicer in theory to have a rigid formula which a judge can apply in every case; but, looking at the matter not from the point of view of theoretical legislation but from its actual working in practice under an existing similar provision in Scotland, we invite the Committee to say that it would be wise in this short and temporary Measure to follow the precedent set by the Scottish Act which has worked so well.
§ Mr. Lionel Heald (Chertsey)
I was glad to hear the Attorney-General say that he did not regard this as a party question. I hope that I may be able to pursuade the hon. and learned Member for Leicester, North-East (Mr. UngoedThomas) to regard it in the same way, though he has not done that so far. I agree with the hon. and learned Member for Leicester, North-East, that some criterion should be laid down. The question is which of these two methods should be adopted, or whether a combination of them should be adopted. There is no difference between them in effect, except that the hon. and learned Member has made no provision for scarcity value, whereas my hon. and learned Friend the Member for Wirral (Mr. Selwyn Lloyd) has made a provision of a kind; that is to say, a provision for special cases.
I do not pretend to be an expert on this subject, but as I see it, it is impossible for anyone who is accustomed to construing the English language to find anything in the Amendment of the hon. and learned Member for Leicester, North-East, which provides in any way for the exclusion of any rental which may be relevant in comparable premises in the locality. Therefore, I ask him to reconsider the matter on the basis that he should not feel that he ought to apologise for being found working with us against the Government. After all, that is a good thing to do sometimes if it is not likely to produce any awkward results, and I do not imagine it would in this case. Why should he not forget for one moment the colour of his 1430 tie and combine with us to get what we want, which is proper guidance for the county court judge? I ask him once more to reconsider the matter and to ask himself what there is in his Amendment which will prevent the county court judge from taking into account whatever scarcity value there may be.
I do not know what the words "scarcity value" mean. It is no use somebody telling me that in some Report somebody says that they mean something. That has absolutely no effect at all. Until Parliament has defined the phrase, it must be construed as two ordinary English words, and there is absolutely nothing in this Amendment which has anything to do with that at all. On the other hand, in the Amendment of my hon. and learned Friend the Member for Wirral there is some evidence of that, because it states:Provided that in estimating the rent which a willing lessee would agree to give for the premises the court may disregard any offer made to the lessor which appears to the court to be substantially in excess of the rent which might he expected for the premises.That is, something which includes something for special scarcity or special position, and I appeal to the hon. and learned Member for Leicester, North-East, to pluck up courage and combine with us.
Mr. Leslie Hale
My right hon. and learned Friend the Attorney-General raised two points. In answer to the first one, he said that he thought that to set up a whole series of conditions would merely be adding to the costs of the litigation, and I think that is true. I do not want to argue this point to the Committee at this stage, but I would merely say that, if we set up seven or eight conditions, the applicant or respondent will say to himself, "If I do not call any evidence on this issue, the county court judge can say that the other side have produced evidence, and therefore I shall not be successful." It is the same type of question as that concerning a medical witness in an arbitration. One has to cover every point at issue. There is, therefore, a valid argument for amending this Clause, which is one that I have supported, and I think that my hon. and learned Friend the Member for Leicester, North-East (Mr. Ungoed-Thomas), will agree with me.
§ Mr. Selwyn Lloyd
Under the Clause as it stands, the county court judge and both parties can have regard to all the circumstances and that opens up the possibility of an infinite amount of evidence being called.
I am coming to that. I said I would deal with it. Let me take a somewhat unusual analogy from the Court of Criminal Appeal. They have power to increase sentence on appeal against a sentence. There-is no yardstick by which it can be measured. No one can adequately advise an appellant. All one can say is that if the case comes before Lords Justices A, B and C, the sentence may be doubled and before D, E and F, it may be halved. It will be the same in the county court if there is no method of assessment.
When my right hon. and learned Friend claimed that this was a really satisfactory method of dealing with the situation, I would say that this is not really the case, because what happens is this. The man who has the most to lose generally gives in, and he may be a poor landlord against a rich tenant, or, more probably, a well-to-do landlord against a poor tenant. Whoever has most to lose and most to fear settles and comes to an agreement. It is a purely speculative proposal. That, I think, is most unsatisfactory, and if my right hon. and learned Friend suggests that there is too much litigation in Scotland about that, I think that is the probably reason for it.
I would suggest that, between now and the Report stage, the Government should consider some such suggestion as this. Those of us who sat on the Committee and had to approach this matter, spending many afternoons upon it, fully realise that it is impossible for anyone to find a phrase of two or three words which could cover every eventuality and yet be completely water-tight. I do suggest to my right hon. and learned Friend that he might very well consider, between now and the Report stage, some such provision as "in all the circumstances" it considers reasonable, but excluding any scarcity value or any special offers for rent and so on, on the lines of the hon. and learned Member for Wirrall's exception. I am not prepared to say at the moment that those words are precise and unambiguous, but there are two advantages for that way 1432 of doing it. If we do it by way of exclusion, neither side will give evidence on the point and it may very well cheapen the proceedings. If we get exclusion from the scarcity value, it seems to me that we shall limit the extraordinarily wide area for disagreement or for different points of view. We should also be retaining in the Bill what the Interim Committee unanimously decided to put forward as a temporary measure, and I think we would have come in substance nearer to the spirit of both the Amendments moved from either side of the Committee.
§ Mr. Black
I think hon. Members on both sides have listened to the advice of the learned Attorney-General with very great disappointment, and I must confess that he left me entirely unconvinced as to the advantages which he has told us in his view and that of the Government would follow from having no precise definition as to the rent to be fixed by the county court.
The Attorney-General laid great stress upon the fact that it was the view of the Government that scarcity value should be excluded when the rent came to be fixed under this part of the Bill. I must point out that, if I understand the Bill correctly and if it is passed in its present form without any further definition of rent, it would be within the competence of a county court judge to take scarcity values into account in fixing the rent to be paid. Therefore, it would seem to me that what the learned Attorney-General suggested to us as being the main objective of the Government in this matter may very well be frustrated by lack of precision as to the rent which the county court has the power to fix.
I would mention some of the practical disadvantages, as they appear to me, in leaving the matter in such general, wide and vague terms, as they appear in the Bill at the moment, and I have particularly in mind the very general phrase "in all the circumstances." I should like to mention three circumstances which might well be regarded as coming within the ambit of that phrase. All are circumstances which I suggest ought not to be brought into consideration, and, indeed, if they were brought into consideration, would constitute a very great difficulty for a county court judge. Firstly, it seems to me that "in all the circumstances" would properly comprise a consideration of the circumstances of the 1433 parties as well as circumstances pertaining to the premises themselves. Is it the desire of the Government that the circumstances of the parties should be brought into consideration?
Let us take the case of two adjoining premises which are exactly similar from the physical point of view and are let on two separate leases to two separate tenants, both leases expiring on the 25th March of this year. If, in the one case, we happen to have a rich landlord and a poor tenant, and, in the other case, a poor landlord and a rich tenant, is it suggested that, in the second case, the rent should be fixed by the county court at a higher level than in the first case, because of the circumstances of the parties? I would suggest that that is quite properly within the ambit of such an all-embracing phrase as "in all the circumstances." I suggest that it would be quite unreasonable in these two cases for the rent to be fixed at different levels for premises which, physically, are exactly similar one with the other.
Of course, if we are going to leave the Bill as at present drafted, it must obviously increase the scope of the circumstances at which the county court has to look, and thereby, surely, increase the amount of evidence that will be offered to the county court judge, and thus increase to the parties the expense involved in the proceedings.
The second point that occurs to me as coming within the ambit of the phrase "in all the circumstances" is that it is a recognised fact that traders in some lines of business are able to support a higher rent than traders occupying similar premises, but engaged in some different form of business activity. Is it suggested, for instance, that the trader in a parade of shops who is engaged in carrying on a business which is regarded as being capable of bearing a fairly high rent should be required by the county court judge to pay a higher rent than another trader in similar premises in the same parade who happens to be carrying on a different type of trade which, generally, cannot support such a high rent? There, again, if circumstances of that kind are to be brought within the ambit of consideration, we are going to produce a disparity in results and a lack of uniformity which, I suggest, will promote grave discontent between different parties securing different 1434 results at the hands of the county court judge.
The third case I wish to instance is that of the successful and energetic trader, on the one hand, and the trader in similar premises in the same parade who, perhaps, neglects his business and is, therefore, able to support only a very low rent. Is it suggested, for instance, that under the head of "in all the circumstances" can be brought into consideration the trading results of the particular trader, because, surely, that is part of the circumstances of the case? If the county court judge is to be required to have regard to the trading results of the particular trader, that, again, is going to involve the consideration of his trading accounts perhaps over a period of years and is again going to add to the difficulties and the expense of the proceedings.
I suggest in all seriousness that the Bill: in its present form, in this vague and indefinite way, and without clarification as to the circumstances which the county court judge is to take into account and the basis on which he is to fix the rent, is bound to lead to a lack of uniformity, and thereby to great discontent on the part of the parties.
In coming to a conclusion, may I. approach the matter also from this standpoint? It must be agreed. I think, that it is in the interests of the community that the values of property should be capable of being ascertained as easily and as accurately as possible. Up to the moment, the debate on this Amendment has been carried on entirely by members, of the legal profession, but I should like to say a word about the difficulties inherent in this matter which will face surveyors and valuers and members of the profession which has to advise property owners in regard to property values.
If this Bill in its present form becomes an Act, it will be very difficult for a surveyor or a valuer to give anything like precise advice to a client. In the case of a business property where the lease expires at a comparatively early date, this Bill would introduce such uncertainty as to the future rent which the landlord could expect to receive as to make it very difficult for any surveyor or valuer to put a value on the property. It is most desirable that there should be some easily understood yardstick by which business premises can be valued. It is important. 1435 for instance, in the case of a death that for purposes of probate the value of a property should be capable of being accurately ascertained. The same applies to a property the owner of which is desirous of obtaining a mortgage, or to an investor who is contemplating the purchase of a particular business property.
The Bill as at present drafted is most defective in its lack of precision concerning the rent which the county court judge is required to assess, and is bound to lead to uncertainty in the property market, a situation which cannot be of any advantage either to the landlord or to the tenant, or, indeed, to the community at large. I very much hope that on further consideration of all that has been said, the Government may be inclined to agree that some greater precision would be of very great advantage.
§ The Chairman
I hope that the Committee will be good enough to come to a decision on this matter. In my view, the question has been gone into at great length by hon. Members on both sides. We are now proceeding at the rate of one Amendment an hour, and I hope that hon. Members will assist the Chair by expediting progress.
§ Mr. Manningham-Buller
I am sorry, Major Milner, that you should take that view on what is really one of the most important Amendments we have had to consider this afternoon. I was intending to rise on a point of order to ask your guidance. My hon. Friend the Member for Wimbledon (Mr. Black) in the course of a few of his observations—only a few of them—touched upon the point raised by the next two Amendments on the Paper. I hope, Major Milner, that what he said will not prejudice a short discussion upon those Amendments.
What I am asking your guidance on. Major Milner, is this. If it is your wish that we should discuss those Amendments with this one, then I should be most grateful if you would say so, because I should like to say a word or two, not only on this Amendment which has now been selected, but upon the point covered by the next two Amendments, a point which, if I may say so with great respect, is not absolutely apparent from reading the Amendment. One of the difficulties 1436 with this Clause is that one finds the phrase "in all the circumstances" appearing more than once.
§ The Chairman
As the hon. and learned Member knows. I have not indicated that the next Amendment should be discussed with the three we are at present discussing. I think I ought to say to the Committee that I think that the next Amendment has been already very largely discussed. The hon. Member for Wimbledon (Mr. Black) based most of his speech on the phrase "in all the circumstances," and, therefore, I hope that the hon. and learned Gentleman will not wish to introduce a discussion on that matter. I do not really think that Amendment should be discussed with those at present under discussion.
§ 8.0 p.m.
§ Mr. Manningham-Buller
May I draw your attention, Major Milner, to the words in line 3, page 9, which state that the court mayif in all the circumstances of the case it appears reasonable so to do, order that there shall be granted to the tenant a tenancy.That is the first time we get the phrase "in all the circumstances of the case." That is where it has been considered in relation to the granting of a new tenancy, and, with great respect, that is quite different from the effect of that phrase where it appears in line 6, because the court having been satisfied that it is reasonable to order a new tenancy—
§ The Chairman
If the hon. and learned Gentleman will forgive me saying so, I fully appreciate the difference. The second "in all the circumstances" refers to the conditions upon which the first part of the Clause is agreed, namely, that it appears reasonable so to do. It then says on what terms and conditions the tenancy shall be given. I fully understand that. I think the best course would be to dispose of the Amendment now under discussion, and then if I call the next Amendment standing on the Order Paper I understand that the hon. and learned Gentleman will wish to say a word or two on that.
§ The Chairman
That being so, let us have a word or two on that Amendment rather than a word or two on the point of order.
§ Mr. Manningham-Buller
That is quite clear, and that course will save time. In view of what you have said, I do not think any of us would desire to continue the discussion on this Amendment. I must say, though, that I hope the right hon. and learned Gentleman will carefully consider what has been said on both sides
§ of the Committee about these Amendments, which are almost identical in substance, and certainly in intention.
§ Question put, "That 'such' stand part of the Clause."
§ The Committee divided: Ayes, 185; Noes, 154,1439
|Division No. 25.]||AYES||[8.2 p.m.|
|Adams, Richard||Grey, C. F.||Padley, W. L.|
|Ayles, W. H.||Griffiths, D. (Rother Valley)||Paget, R. T.|
|Bacon, Miss A.||Griffiths, Rt. Hon. J. (Llanelly)||Paling, Rt. Hon. Wilfred (Dearne V'lly)|
|Balfour, A.||Griffiths, W. D. (Exchange)||Pannell, T. C.|
|Barnes, Rt. Hon. A J||Grimond, J.||Parker, J.|
|Bartley, P||Haire, John E. (Wycombe)||Pearson, A.|
|Benn, Hon. A. N. Wedgwood||Hale, Leslie (Oldham, W.)||Popplewell, E.|
|Benson, G.||Hall, J. (Gateshead, W.)||Porter, G.|
|Beswick. F.||Hall, Rt. Hn. W. Glenvil (Colne Valley)||Price, M. Philips (Gloucestershire)|
|Bevan, Rt. Hon. A. (Ebbw Vale)||Hannan, W.||Proctor, W. T.|
|Blenkinsop, A||Hardy, E. A.||Reid, T. (Swindon)|
|Blyton, W. R.||Hargreaves, A.||Reid, W. (Camlachie)|
|Boardman, H.||Harrison, J.||Rhodes, H.|
|Bottomley, A. G.||Hastings, Dr. Somerville||Robens, A.|
|Bowles, F. G. (Nuneaton)||Hayman, F. H.||Roberts, Emrys (Merioneth)|
|Braddock, Mrs. E. M.||Herbison, Miss M.||Roberts, Goronwy (Caernarvonshire)|
|Brockway, A. Fenner||Hobson, C. R.||Robinson, Kenneth (St. Pancras, N.)|
|Brook, D. (Halifax)||Holman, P.||Ross, William (Kilmarnock)|
|Brooks, T. J. (Normanton)||Houghton, Douglas||Royle, C.|
|Broughton, Dr. A. D. D.||Hoy, J.||Shackleton, E. A. A.|
|Brown, George (Belper)||Hudson, J. H. (Ealing, N.)||Shawcross, Rt. Hon. Sir H.|
|Brown, T. J. (Ince)||Hughes, Hector (Aberdeen, N.)||Silverman, J. (Erdington)|
|Burke, W. A.||Hughes, Moelwyn (Islington, N.)||Simmons, C. J.|
|Burton, Miss E||Hynd, H. (Accrington)||Slater, J.|
|Butler, H. W. (Hackney. S.)||Hynd, J. B. (Attercliffe)||Smith, Ellis (Stoke, S.)|
|Champion, A. J.||Irvine, A. J. (Edge Hill)||Sorensen, R. W.|
|Clunie, J.||Isaacs, Rt. Hon. G. A.||Soskice, Rt. Hon. Sir F|
|Cocks, F. S.||Janner, B.||Sparks, J. A.|
|Coldrick, W.||Jay, D. P. T.||Stewart, Michael (Fulham, E.)|
|Collick, P.||Jeger, Dr. S. W. (St. Pancras, S.)||Stross, Dr. B|
|Cooper, G. (Middlesbrough A.)||Jones, D. T. (Hartlepool)||Taylor, H. B. (Mansfield)|
|Cooper, J. (Deptford)||Jones, William Elwyn (Conway)||Taylor, R. J. (Morpeth)|
|Corbet, Mrs. F. K (Peckham)||Keenan, W.||Thomas, D. E. (Aberdare)|
|Cove, W. G.||King, H. M.||Thomas, I. O. (Wrekin)|
|Craddock, George (Bradford, S.)||Lee, F. (Newton)||Thomas, I. R. (Rhondda, W.)|
|Crosland, C. A. R.||Lindgren, G. S.||Thorneycroft, Harry (Clayton)|
|Cullen, Mrs. A.||MacColl, J. E.||Thurtle, Ernest|
|Daines, P.||McInnes, J.||Tomlinson, Rt. Hon. G.|
|Darling, G. (Hillsboro')||McKay, J. (Wallsend)||Tomney, F.|
|Davies, A. Edward (Stoke, N.)||McLeavy, F.||Turner-Samuels, M.|
|Davies, Harold (Leek)||MacPherson, Malcolm (Stirling)||Ungoed-Thomas, A. L.|
|Davies, S. O. (Merthyr)||Mallalieu, J. P. W. (Huddersfield. E.)||Wade, D. W.|
|de Freitas, Geoffrey||Manuel, A. C.||Wallace, H. W|
|Deer, G||Marquand, Rt. Hon. H. A.||Weitzman, D.|
|Delargy, H. J.||Mathers, Rt. Hon. George||Wells, P. L. (Faversham)|
|Donnelly, D.||Mellish, R. J.||West, D. G.|
|Driberg, T. E. N||Messer, F.||Wheatley, Rt. Hon. John (Edinb'gh, E)|
|Dye, S.||Middleton, Mrs. L||Whiteley, Rt. Hon. W|
|Ede, Rt. Hon. J C.||Mikardo, Ian||Wilkins, W. A.|
|Edwards, Rt. Hon. N. (Caerphilly)||Mitchison, G. R.||Willey, F. T. (Sunderland)|
|Edwards, W. J (Stepney)||Moeran, E. W.||Williams, D. J. (Neath)|
|Ewart, R.||Monslow, W.||Williams, Rev. Llywelyn (Abertillery)|
|Fernyhough, E||Moody, A. S.||Williams, Ronald (Wigan)|
|Finch, H. J.||Morgan, Dr. H. B.||Williams, Rt. Hon. T. (Don Valley)|
|Fletcher, E. G. M. (Islington, E.)||Morris, R. Hopkin (Carmarthen)||Williams, W. T. (Hammersmith, S.)|
|Follick, M||Morrison, Rt. Hon. H. (Lewisham, S.)||Wilson, Rt. Hon. J. H. (Huyton)|
|Fraser, T. (Hamilton)||Moyle, A||Winterbottom, I. (Nottingham, C.)|
|George, Lady M Lloyd||Mulley, F. W||Winterbottom, R. E. (Brightside)|
|Gibson, C. W.||Heal, H.||Wise, Major F. J.|
|Gilzean, A.||Noel-Baker, Rt. Hon. P. J.||Woodburn, Rt. Hon A.|
|Granville, E. (Eye)||Oldfield W. H.|
|Greenwood, A. W. J. (Rossendale)||Oliver, G. H.||TELLERS FOR THE AYES:|
|Grenfell, D. R.||Orbach, M.||Mr. Colindridge and Mr. Bowden.|
|Alport, C. J. M.||Assheton, Rt. Hon R. (Blackburn, W.)||Banks, Col. C.|
|Amory, D. Heathcoat (Tiverton)||Baker, P.||Beamish, Maj T. V. H.|
|Arbuthnot, John||Baldock J. M||Bell, R. M.|
|Ashton, H. (Chelmsford)||Baldwin, A. E.||Bennett, Sir P (Edgbaston)|
|Birch, Nigel||Hay, John||Powell, J. Enoch|
|Bishop, F. P.||Headlam, Lieut.-Col. Rt. Hon. Sir C.||Prescott, Stanley|
|Black, C. W.||Heald, L. F.||Profumo, J. D|
|Boles, Lt.-Col. D. C. (Wells)||Heath, E. R.||Raikes, H. V.|
|Boothby, R.||Hicks-Beach, Maj. W. W.||Redmayne, M.|
|Bossom. A. C.||Higgs, J. M. C.||Remnant, Hon. P.|
|Boyd-Carpenter, J. A||Hill, Mrs. E. (Wythenshawe)||Renton, D. L. M.|
|Boyle, Sir Edward||Hill, Dr. C. (Luton)||Robinson, J. Roland (Blackpool. S.)|
|Braine, B.||Holmes, Sir J. Stanley (Harwich)||Rodgers, J. (Sevenoaks)|
|Braithwaite, Lt.-Comdr. J. G.||Hopkinson, H. L. D'A.||Roper, Sir H.|
|Bromley-Davenport, Lt.-Col. W.||Hornsby-Smith, Miss P.||Ropner, Col. L.|
|Brooke, H. (Hampstead)||Hudson, Sir Austin (Lewisham, N.)||Ross, Sir R. D (Londonderry)|
|Buchan-Hepburn, P. G. T.||Hurd, A. R.||Russell, R. S.|
|Burden, Squadron-Leader F. A||Hutchinson, Geoffrey (Ilford, N.)||Ryder, Capt. R. E. D|
|Butler, Rt. Hon. Ft. A. (S'ffr'n W' d' n)||Hylton-Foster, H. B.||Scott, Donald|
|Carson, Hon. E.||Jeffreys, General Sir G.||Shepherd, W. S. (Cheadle)|
|Channon, H.||Johnson, Howard S. (Kemptown)||Smithers, Peter (Winchester)|
|Clarke, Col. R. S. (East Grinstead)||Joynson-Hicks, Hon. L. W||Spens, Sir P. (Kensington, S.)|
|Clarke, Brig. T. H. (Portsmouth, W.)||Kingsmill, Lt.-Col. W. H.||Stanley, Capt. Hon R. (N. Fylde)|
|Colegate, A.||Lambert, Hon. G.||Stevens, G. P.|
|Conant, Maj. R. J. E.||Lancaster, Col. C. G.||Steward, W. A. (Woolwich, W.)|
|Craddock, G. B. (Spelthorne)||Legge-Bourke, Maj. E. A. H.||Storey, S.|
|Cranborne, Viscount||Linstead, H. N.||Strauss, Henry (Norwich, S.)|
|Crosthwaite-Eyre, Col. O. E||Lloyd, Selwyn (Wirral)||Studholme, H. G.|
|Crouch, R F.||Lucas-Tooth, Sir H.||Sutcliffe, H.|
|Darling, Sir W. Y. (Edinburgh, S.)||McCorquodale, Rt. Hon. M. S.||Teeling, William|
|Davies, Nigel (Epping)||Mackeson, Brig. H. R||Thompson, R. H. M. (Croydon, W.)|
|de Chair, S.||McKibbin, A.||Thorneycroft, G. E. P. (Monmouth)|
|Deedes, W. F.||McKie, J. H. (Galloway)||Tilney, John|
|Digby, S. Wingfield||Maclay, Hon. J. S.||Touche, G. C.|
|Drewe, C.||MacLeod, Iain (Enfield, W.)||Turner, H. F. L|
|Dugdale, Maj. Sir T. (Richmond)||Macpherson, N. (Dumfries)||Turton, R. H.|
|Duncan, Capt J. A. L||Maitland, Comdr. J. W.||Tweedsmuir, Lady|
|Duthie, W. S.||Mannhngham-Buller, R. E.||Vaughan-Morgan, J. K.|
|Eden, Rt. Hon. A.||Marples, A. E.||Wakefield, E. B. (Derbyshire, W.)|
|Fisher, Nigel||Marshall, D. (Bodmin)||Wakefield, Sir W. W. (St. Marylebone)|
|Fletcher, W. (Bury)||Maude, J. C (Exeter)||Walker-Smith, D. C.|
|Fort, R.||Medlicott, Brigadier F||Ward, Hon G. R (Worcester)|
|Foster, J. G.||Mellor, Sir J.||Ward, Miss I. (Tynemouth)|
|Fraser, Hon. H. C. P. (Stone)||Molson, A. H. E.||Waterhouse, Capt. Rt. Hon C|
|Fraser, Sir I. (Lonsdale)||Morrison, Rt. Hon W. S. (Cirencester)||Walkinson, H.|
|Fyfe, Rt. Hon. Sir D. P. M.||Nabarro, G.||White, J. Baker (Canterbury)|
|Gage, C. H.||Nutting, Anthony||Wills, G.|
|Galbraith, T. G. D. (Hillhead)||Oakshott, H. D.||Wilson, Geoffrey (Truro)|
|Garner-Evans, E. H. (Denbigh)||O'Neill, Rt. Hon. Sir H.||Winterton, Rt. Hon. Earl|
|Grimston, R. V. (Westbury)||Ormsby-Gore, Hon. W. D.||Wood, Hon. R.|
|Harvey, Air Codre. A. V. (Macclesfield)||Peto, Brig. C. H. M.|
|Harvey, Ian (Harrow, E.)||Pickthorn, K.||TELLERS FOR THE NOES:|
|Major Wheatley and Mr. Vosper.|
§ The Deputy-Chairman
This and the next Amendment in page 9, line 6, after "reasonable," inserthaving regard to the nature of the premises the subject of the tenancy.may be discussed together.
§ Mr. Manningham-Buller
They go together and, Sir Charles, as your predecessor suggested just now, they can both be discussed shortly.
The point is quite simple and it is again to give an indication to the court and assist it in its task on a somewhat narrower point than the matter which we have just been discussing. As the Clause now stands, the new tenancy will beon such terms and conditions as the court in all the circumstances thinks reasonable.I should like to ask the Solicitor-General whether he means that the court shall 1440 have regard to the circumstances of the particular tenant—that is to say whether, if in one case he is a bachelor and in another case he is a married man with a lot of children, those are factors to be taken into consideration. If so I do not think that would be right.
That is why we have tabled these Amendments— I am not wedded to the wording—and I hope the right hon. and learned Gentleman will not spend time in criticising the drafting—to leave out "in all the circumstances," and after "reasonable" to insert:having regard to the nature of the premises the subject of the tenancy.I am not saying that the latter Amendment is worded correctly, but if in assessing what is a fair rent for premises it is not intended to have regard to the personal conditions of the tenant, including his means, that ought to be made clear.
If the right hon. and learned Gentleman will say two things—first, that it is 1441 not the intention of the Clause that regard should be had to the personal position of each individual tenant, and secondly, that he will consider trying to find a form of words between now and Report to make that clear in this Clause, we can proceed to the next Amendment.
§ The Solicitor-General
I can assure the hon. and learned Gentleman that the financial circumstances of the landlord and the tenant would be irrelevant to the consideration whether a new tenancy should be granted. Inasmuch as I think that under the wording which at present exists in the Clause it would be open to the learned judge to take those circumstances into account, I think we ought to endeavour to put some form of wording in which would make it apparent that the financial circumstances of one party or the other are matters which ought not to be taken into account.
§ Mr. Manningham-Buller
I am much obliged to the right hon. and learned Gentleman. I am sure he will agree now that it is rather a different point from that which we have been discussing. I am grateful to the right hon. and learned Gentleman, and I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 8.15 p.m.
§ Mr. Ungoed-Thomas
I beg to move in page 9, line 17, to leave out "one year," and insert "two years."
The purpose of this Amendment is to ensure that the period for which the tenancy may be ordered under the Bill shall be two years instead of one year. The real object of the Amendment is to avoid having two applications, which is almost inevitably what happens, and thus save costs. The purpose of this Bill is to provide a standstill for a two-year period, and it therefore seems ridiculous, on the face of it, that for a short period like this, two applications should be required in order to span the period. If there is an extension it is better to ensure that the extension granted on one application and one application only shall span the whole period.
I appreciate that in the Scottish Act the provision was for a one-year tenancy which would mean that an applicant would have to make a second application in order to span the period of two years contemplated in the Scottish Act.
1442 There is a vital difference between Scottish business tenancies and English business tenancies. In the case of Scotland the common tenancy is a one-year tenancy. Therefore, in the case of Scotland the extension of one year would merely be the common form provision for a Scottish tenancy. Here the common form provision for business premises is 7, 14 and 21 years and, comparatively uncommon, a year-to-year period.
Having regard to this distinction between Scotland and ourselves, having in mind the purpose of this Bill and, above all, remembering what was rightly emphasised by the Opposition in our previous debate—the need for saving costs—I hope that my right hon. and learned Friend will see his way to accept this Amendment.
§ The Solicitor-General
Here again we thought we had a safe guide in the Tenancy of Shops (Scotland) Act. No doubt, there are differences between the Scottish and English practice, but they are not so marked as to make it desirable to depart from the practice which has already been tried and found to work satisfactorily. We think, on the whole, it is better that there should be this system which is at present working, and, although I see the force of the argument which has been adduced by my hon. and learned Friend, we prefer to leave it as it is. If a tenancy has been renewed for one year and an application is made to renew it further, it is unlikely that very much expense would be incurred in the further application.
There is a further technical point which one should bear in mind. The Bill as drafted does not require that a period of renewal granted during the lifetime of the Bill shall come to an end at the date when the Bill itself comes to an end. A new tenancy might be granted for nine months at a date only three months before the Bill comes to an end. To change it in the sense proposed would mean in that respect that the Bill would have to be somewhat radically re-cast, and it would mean that the advantage given to the tenant in certain cases might have to be considerably curtailed. In all the circumstances we feel that the advice we ought to give is to leave the Bill as it is.
§ Mr. Ungoed-Thomas
I do not wish to take up the time of the Committee unduly. 1443 I appreciate the technical point that my right hon. and learned Friend has made. I concede at once that it would be conceivable with my Amendment to have an extension going appreciably over the lifetime of the Bill, but I drafted the Amendment in this form because I hoped it would be possible, on permanent legislation coming into operation, to deal with any difficulty of that kind without going into any complicated amendment of this Bill. I am sure my right hon. and learned Friend appreciates the object I have in mind; it is to save costs on duplicating applications, and I am sure everybody will agree with that object.
I do not wish to press this matter except to this extent, that I hope my right hon. and learned Friend will consider the matter with a view to seeing whether it is possible to attain the object of saving costs without any great alteration of substance such as he has suggested might arise from the technical difficulty which he foresees. I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy-Chairman
The next two Amendments—that in the name of the hon. and learned Member for Northants, South (Mr. Manningham-Buller), and that in the name of the hon. and learned Member for Leicester, North-East (Mr. Ungoed-Thomas), fall, and I will call the Amendment in the name of the hon. Member for Leicester, North-West (Mr. fanner). As the hon. Member is not in his place, and as no one wishes to move that Amendment, I shall call the next Amendment, in line 31.
§ Mr. Molson
I beg to move, in page 9, line 31, after "possession," to insert:in the interest of good estate management or.In drafting this Clause the Government have made provision for circumstances in which it is desirable that the lease of a shop should not be renewed because it is necessary that the existing premises should be demolished or reconstructed. There are, of course, other circumstances—circumstances which can hardly be described as coming within the term "reconstructed"—in which the owner of an estate might seek to carry out an alteration to the premises which would 1444 be regarded as good estate management and would be in the interest of the community as a whole.
I hope that the Government will be prepared to accept this Amendment, because it seems to me to be entirely in line with the spirit of the paragraph in which we seek to make it. There may be cases where a landlord has let a number of adjoining premises to different individuals or companies and where he has planned that the leases will fall at the same time so that he will be able to carry out a demolition and/or a reconstruction.
Owing to the changes which have taken place in recent years, there are many cases where an estate owning a considerable number of houses is now anxious to convert those houses from the purpose for which they were originally intended when they were built so as to serve the purpose and conditions of the present time. On a previous occasion I mentioned a large-scale conversion of houses in Eaton Square from large mansions, which few people can now afford to own and to occupy, into flats. In many cases the provision of these flats necessitated two or even three houses being knocked into one. The unit of habitation is no longer vertical but is horizontal.
In a large number of towns there are very many properties of this sort, and it is desirable that adjoining properties should be brought back into the possession of the landlord for the purpose of carrying out internal changes of that kind. It is with that kind of case in mind that I have moved to insert the words:in the interest of good estate management.The right hon. and learned Gentleman will bear in mind that all this is subject to the discretion of a county court judge and that the Amendment only provides that he shall not give exclusive consideration to the claims of the tenant in a case where the landlord has a perfectly good reason for desiring to resume possession of his property—the case where it is necessary for that to happen in the interest of good estate management. I hope the right hon. and learned Gentleman will regard the Amendment as being in harmony with the general spirit of this paragraph and will be prepared to accept it.
§ The Solicitor-General
I think we ought not to accept the Amendment, for the following reason. The effect of it virtually is to take the decision as to whether a tenancy should be granted very largely out of the hands of the court and to make it a decision which has to be made according to the desires of the landlord.
What is the position as the Bill stands at present? As the hon. Member for The High Peak (Mr. Molson) pointed out, the learned judge will not grant a new tenancy unless he thinks it reasonable in Al the circumstances and no doubt, in deciding whether it was reasonable in all the circumstances to grant a new tenancy, he would take into account the question of good estate management. It is not as though that aspect of the matter will be left out of account altogether; certainly it will not be left out of account. It will be given its due place among other considerations when the judge asks himself whether it is reasonable to grant a tenancy.
If the Amendment were accepted the position would be altogether different. It would mean that the court would be bound not to order a new tenancy if the landlord reasonably required possession for the purpose of good estate management. Undoubtedly good estate management would include the consideration of getting the best possible rent. A landlord desirous of using premises in the best interests of good estate management would say to himself, "What is the best rent I can get out of them?" Equally, he might wish to use the premises, for the purpose of good estate management, in a manner which was according to his own particular conception of how he should run the estate, even though that manner was contrary to the interests of the neighbourhood at large and of the other occupiers.
In other words, the effect of the Amendment would be that the court would be precluded from granting a new tenancy, for example, where, if a new tenancy were granted, the landlord would be prevented from obtaining a higher rent from some other tenant. Good estate management would mean that he should obtain the highest rent—
§ The Solicitor-General
It would mean that he should get a higher rent, passing from the much lesser rent, and the county 1446 court judge might think it reasonable to fix a new rent to be paid by the continuing tenant.
§ 8.30 p.m.
§ Mr. Molson
I had thought that the right hon. and learned Gentleman would have dealt with the case I gave about converting a house into flats, which would come under the word "reconstruction." He is now advancing the suggestion that the court should not grant a new tenancy if the landlord desires to reconstruct the premises in order to obtain a higher rent. That is not the way I have read this paragraph, and if that is the way the Solicitor-General reads it, it seems to me there is something wrong about it.
§ The Solicitor-General
What I was saying was if the words which the hon. Gentleman seeks to insert in paragraph (c) are inserted, the result in a particular case might be as follows. An existing tenant is paying a certain rent and the county court judge says to himself, "If I renew this tenancy, I would say that the same rent should be payable by the existing tenant and he should have a new tenancy." Then it might appear that the landlord was letting it to some other tenant and getting twice the rent or three times the rent, and it would be naturally stated that it was in the interests of good estate management for the landlord to accept the higher instead of the lower rent. It might not always be so but it would be in a good many cases, because the effect of incorporating the words:in the interest of good estate managementin the paragraph would be that the court would be unable to grant a new tenancy in a case of that sort.
§ Mr. Manningham-Buller
May I quote a case which might be more likely to come within the definition of "good estate management" than the one the right hon. and learned Gentleman has given'? I never before heard it suggested that that means to get the highest rent possible.
§ Mr. Manningham-Buller
Or at all. There may be a case where a tenant in a shop is causing a great deal of annoyance and upsetting the neighbouring tenants. In the interests of good estate 1447 management and for the amenities for all the neighbours, it might be desirable that that particular tenant should not have his lease renewed. We are merely saying that the interest of good estate management is something to which the court should have regard.
§ The Solicitor-General
That is what the Bill already provides. The case in which the interest of good estate management requires that a particular tenant who is a nuisance to the adjoining neighbours shall not have his lease renewed, comes within the purview of the Clause. The county court judge has power to take into consideration all the facts, because almost the initial words of the Clause are, that he can grant a new tenancyif in all the circumstances of the case it appears reasonable so to do.If the circumstances were that a tenant was asking for a new lease but was a nuisance to everybody else, so that his continuing occupation of the premises was inconsistent with good estate management, that is no doubt a matter which the county court judge would think it relevant to consider in determining whether, in all the circumstances of the case, it was reasonable.
If into this paragraph we actually put the words "good estate management," it would require that a higher as distinct from a lower rent should be asked for. Then the learned county court judge would be unable to grant a renewal of tenancy in that case. I am not saying that the question of getting a higher or lower rent is the only thing to be taken into account in good estate management, but it is not an irrelevant circumstance. It is an improvident landlord who, having an opportunity of getting a higher rent from a good tenant, says to himself. "No, I will reject that and select the lower rent." That is a matter which, in the consideration of good estate management, must be taken into account. A landlord in those conditions would not disregard that not altogether irrelevant consideration.
If those words were inserted in paragraph (c), as a result of the opening words of subsection (3), namely,The court shall not order the grant of a new tenancy …1448 the landlord would say, "I think it is in the interests of good estate management that I should not take this tenant but should take another who can afford to pay me a higher rent." The learned county court judge in that case would be completely powerless. He would have to refuse an order for a new tenancy, whereas under the Clause as it at present stands he would take that into account as well as all the other circumstances. He would fit all the circumstances of the case together and give due weight to each one of them. He might think that that would be a relevant consideration which should guide his judgment, but it would be only one of several. As the matter stands at the moment, it is for the county court judge to weigh up all the other considerations against that one and decide accordingly.
In regard to the case where it was desirable in the interests of good estate management to convert premises into flats, the county court judge would have to take that into account and he would no doubt weigh that consideration with the others. That is what I meant when I said that the effect of the Amendment would be to take out of the learned judge's hands the decision whether a new tenancy should be granted on the question of good estate management and put the decision on to the landlord. For those reasons, I hope the Committee will not accept this Amendment.
§ Mr. Walker-Smith
I had hoped for an opportunity to make one or two brief observations before the Solicitor-General spoke, because there are one or two points on which I wanted his enlightenment and explanation. Now, having had the advantage of hearing the case as put by the right hon. and learned Gentleman, I am bound to say I am not convinced by the reasons he has adduced in asking us to reject the Amendment. The Solicitor-General says that it would be wrong to specify in subsection. (3) the interest of good estate management because the words might be interpreted as meaning simply that a higher rent should follow. I do not think that is how good estate management is likely to be interpreted by the court.
§ The Solicitor-General
I simply mentioned one element that enters into good estate management. If the landlord said 1449 to the county court judge, "I have a good opportunity for disposing of the property, and good estate management requires that I should do so," the county court judge would be prevented from ordering a new tenancy.
§ Mr. Walker-Smith
The Solicitor-General says that it was wrong to put the words in because they would act as a powerful deterrent to the court. The second reason was that it was unnecessary to put these words in because it would still be open to the county court judge to have regard to the various points in the subsection. The Committee will not expect me to attempt to reproduce the facility of language with which the Solicitor-General expressed this point.
As regards the first of these submissions of the Solicitor-General, I would point out that the question of good estate management was considered by the Court of Appeal in the case of Clifton v. Taylor not long ago. I have not had time to refresh my mind very fully either with the facts or the ipsissima verba of the judgment, but the question of good estate management in that case was turned upon a man making certain premises into one house, and not upon merely trying to get a higher rent at one particular moment. I think that position is sound. So far as this second proposition goes, the county court judge might say, "If the Legislature had intended me to take account of the interest of good estate management they would have expressed it among the items in this subsection." That might lead the court to think that it was a matter which the legislature intended them to have regard to.
Where did these words "the interest of good estate management" come from? They may have come from the Scottish Act, which I have not studied. They differ in certain respects from the language of the 1927 Act. I wonder whether the Solicitor-General will give the Committee a brief explanation why that is so. In the 1927 Act there is an onus on the landlord to prove that:… he intends to pull down or remodel the premises; or … that vacant possession of the premises is required in order to carry out a scheme of re-development.It also refers to "good estate management." The right hon. and learned Gentleman has addressed himself to "good estate management." Why was "scheme 1450 of re-development," which is a wide phrase, dropped in this Bill in favour of the narrower phrase:… a substantial part of those premises may he demolished or reconstructed."?The interpretation Clause does not help with any of these words in the Bill. I see difficulties arising out of the interpretation of the word "demolish" in certain cases. The language of the subsection, in suggesting that it must be shown that the premises should be reconstructed, is, of course, unfortunate because it is not the premises that are reconstructed, I should have thought, in a scheme of re-development. I ask, in a constructive vein, I hope, the right hon. and learned Gentleman to have a further look at the language to see if it really is an improvement on the language used in Section 5 (3) of the 1927 Act.
§ Mr. Manningham-Buller
The right hon. and learned Gentleman gave most extraordinary meanings to the expression "good estate management" and interpretations which I do not think would be accepted in any court in the country as the ordinary meaning of that phrase. After all, it is a phrase which has appeared in another statute, the Landlord and Tenant Act, 1927, and, so far as I am aware, even the most ardent critics of that Act, like the hon. Member for Leicester, North-West (Mr. Janner), have never criticised the inclusion of that phrase. It has a well-recognised meaning, and for the right hon. and learned Gentleman to come forward and say that it has the meaning of only applying to an increase of rent and that good estate management really consists of selling parts of the estate was not treating the Amendment with the seriousness which it deserved.
§ The Solicitor-General
I am sure that the hon. and learned Gentleman does not wish to misreport me. What I said was that the question of getting the best rent in the circumstances or the question of making use of a favourable opportunity of disposing of the property was an element that a landlord would or might take into account in deciding what course was best in the interests of good estate management. I did not seek to put it as an exclusive test at all. I said that these were the kind of considerations, among others, which might actuate a landlord in 1451 asking himself how he could best use a portion of his property in the interests of good estate management.
§ Mr. Manningham-Buller
It is very difficult indeed, I know, to put it shortly and yet make any impact on the right hon. and learned Gentleman's mind. As one of my hon. Friends said, it is not the landlord who decides this matter if the Amendment is accepted, but the court. The court has to be satisfied that the landlord reasonably requires possession in the interests of good estate management, and "good estate management" may sometimes mean selling part of an estate or rounding off a corner. I recognise that it is not the normal meaning of "good estate management" in any shape or form. Bearing in mind that this alteration will only mean that the court would act upon it if it was satisfied that it was reasonable to give possession in the
§ interests of good estate management, there really are not the risks flowing from it which the right hon. and learned Gentleman suggested.
§ I fear that, in view of his attitude, in view particularly of the fact that this is an expression which has been in the 1927 Act and has been well interpreted without any criticism, and in view of our attempt to make this a better Measure, we shall have to press this to a Division unless the right hon. and learned Gentleman can say that he will be prepared on reconsideration to insert somewhere in the Clause the criterion which is not there at present, that is, a reference to "good estate management."
§ Question put. "That those words be there inserted."
§ The Commitee divided: Ayes, 153; Noes. 184.1453
|Division No. 26.]||AYES||[8.45 p.m.|
|Alport, C. J. M.||Foster, J. G.||Molson, A. H. E.|
|Amory, D. Heathcoat (Tiverton)||Fraser, Sir I. (Lonsdale)||Morrison, Rt. Hon. W. S. (Cirencester)|
|Arbuthnot, John||Fyfe, Rt. Hon. Sir D. P. M.||Nutting, Anthony|
|Ashton, H. (Chelmsford)||Gage, C. H.||Oakshott, H. D.|
|Assheton, Rt. Hon R. (Blackburn, W.)||Galbraith, T. G. D. (Hillhead)||O'Neill, Rt. Hon. Sir H.|
|Baker, P.||Gamer-Evans, E. H. (Denbigh)||Ormsby-Gore, Hon. W. D.|
|Baldock, J. M.||Grimston, R. V. (Westbury)||Peto, Brig. C. H. M|
|Baldwin, A. E||Harvey, Air-Codre. A. V. (Macclesfield)||Pickthorn, K.|
|Banks, Col. C.||Harvey, Ian (Harrow, E.)||Powell, J. Enoch|
|Beamish, Maj T V H||Hay, John||Prescott, Stanley|
|Bell, R. M.||Headlam, Lieut.-Col. Rt Hon Sir C||Profumo, J. D|
|Bennett, Sir P (Edgbaston)||Heald, L F.||Raikes, H. V|
|Bishop F. P||Heath, E. R.||Redmayne, M|
|Black. C. W.||Hicks-Beach, Maj. W. W||Remnant, Hon. P.|
|Boles, Lt.-Col. D. C. (Wells)||Higgs, J. M. C.||Renton, D. L. M.|
|Boothby, R.||Hill, Mrs. E (Wythenshawe)||Robinson, J. Roland (Blackpool, S.)|
|Bossom. A. C.||Hill, Dr. C. (Luton)||Rodgers, John (Sevenoaks)|
|Boyd-Carpenter, J. A||Holmes, Sir J. Stanley (Harwich)||Roper, Sir H.|
|Boyle, Sir Edward||Hopkinson, H. L. D'A.||Ropner, Col. L.|
|Braine, B.||Hornsby-Smith, Miss P.||Ross, Sir R. D. (Londonderry)|
|Braithwaite, Lt.-Comdr. J G.||Hudson, Sir Austin (Lewisham, N.)||Russell, R. S.|
|Bromley-Davenport, Lt -Col W||Hurd, A R.||Ryder, Capt. R. E. D|
|Brooke, H. (Hampstead)||Hutchinson, Geoffrey (Ilford, N.)||Scott, Donald|
|Buchan-Hepburn, P. G. T.||Hylton-Foster, H. B.||Shepherd, W. S. (Cheadle)|
|Burden, Squadron-Leader F. A.||Jeffreys, General Sir G.||Smith, E. Martin (Grantham)|
|Butler, Rt. Hon. R. A. (S'ffr'n W'ld'n)||Johnson, Howard S. (Kemptown)||Smithers, Peter (Winchester)|
|Carson, Hon. E||Joynson-Hicks, Hon. L. W||Spens, Sir P. (Kensington, S.)|
|Channon, H.||Kingsmill, Lt.-Col. W. H.||Stanley, Capt. Hon. R. (N. Fylde)|
|Clarke, Col. R. S. (East Grinstead)||Lambert, Hon. G.||Stevens, G. P.|
|Clarke, Brig. T. H. (Portsmouth, W.)||Lancaster, Col. C. G.||Steward, W. A. (Woolwich, W)|
|Colegate, A.||Legge-Bourke, Maj. E. A. H||Storey, S.|
|Conant, Maj. R. J. E.||Linstead, H. N.||Strauss, Henry (Norwich, S.)|
|Craddock, G. B. (Spelthorne)||Lloyd, Selwyn (Wirral)||Studholme, H. G.|
|Cranborne, Viscount||Lucas-Tooth, Sir H.||Sutcliffe, H.|
|Crosthwaite-Eyre, Col. O. E||McCorquodale, Rt. Hon. M S||Teeling, William|
|Crouch, R. F.||Mackeson, Brig. H. R.||Thompson, R. H. M. (Croydon, W.)|
|Darling, Sir W. Y. (Edinburgh, S.)||McKibbin, A.||Thorneycroft, G E P (Monmouth)|
|Davies, Nigel (Epping)||McKie, J. H. (Galloway)||Tilney, John|
|de Chair, S.||Maclay, Hon. J. S.||Touche, G. C.|
|Deedes, W. F.||MacLeod, Iain (Enfield, W.)||Turner, H. F. L.|
|Drewe, C.||Macpherson, N. (Dumfries)||Turton, R. H.|
|Dugdale, Maj. Sir T. (Richmond)||Maitland, Comdr. J. W.||Tweedsmuir, Lady|
|Duncan, Capt. J. A. L||Manningham-Buller, R. E||Vaughan-Morgan, J. K.|
|Duthie W. S.||Marples, A. E.||Wakefield, E. B. (Derbyshire, W.)|
|Eden, Rt. Hon. A||Marshall, D. (Bodmin)||Wakefield, Sir W. W. (St. Marylebone)|
|Fisher, Nigel||Maude, J. C. (Exeter)||Walker-Smith, D. C.|
|Fletcher, W. (Bury)||Medlicott, Brigadier F||Ward, Hon G. R. (Worcester)|
|Fert. R.||Mellor, Sir J.||Ward, Miss I. (Tynemouth)|
|Waterhouse, Capt. Rt. Hon C.||Wills, G.||TELLERS FOR THE AYES:|
|Watkinson, H.||Wilson, Geoffrey (Truro)||Mr. Digby and Mr. Vosper.|
|Wheatley, Major M. J. (Poole)||Winterton, Rt. Hon. Earl|
|White, J. Baker (Canterbury)||Wood. Hon. R.|
|Adams, Richard||Greenwood, Anthony W. J. (Rossendale)||Oldfield, W. H.|
|Ayles, W. H.||Grenfell, D. R.||Oliver, G. H.|
|Bacon, Miss A.||Grey, C. F.||Orbach, M.|
|Balfour, A.||Griffiths, D. (Rother Valley)||Padley, W. E.|
|Barnes, Rt. Hon. A, J.||Griffiths, Rt. Hon. J. (Llanelly)||Paget, R. T|
|Bartley, P.||Griffiths, W, D. (Exchange)||Paling, Rt. Hon. Wilfred (Dearne V'lly)|
|Benn, Hon. A. N. Wedgwood||Grimond, J.||Parker, J.|
|Benson, G||Haire, John E. (Wycombe)||Popplewell, E|
|Beswick, F.||Hale, Leslie (Oldham, W.)||Porter, G.|
|Blenkinsop, A||Hall, J. (Gateshead, W.)||Price, M. Philips (Gloucestershire, W.)|
|Blyton, W. R.||Hall, Rt. Hn. W. Glenvil (Colne Valley)||Proctor, W. T.|
|Boardman, H.||Hannan, W.||Reid, T. (Swindon)|
|Bottomley, A. G||Hardy, E. A.||Reid, W. (Camlachie)|
|Bowden, H. W.||Hargreaves, A||Rhodes, H.|
|Bowles, F. G. (Nuneaton)||Harrison, J.||Robens, A.|
|Braddock, Mrs. E. M.||Hastings, Dr. Somerville||Roberts, Emrys (Merioneth)|
|Brockway, A. Fenner||Hayman, F. H.||Roberts, Goronwy (Caernarvonshire)|
|Brook, D. (Halifax)||Harbison, Miss M||Robinson, Kenneth (St. Pancras, N.)|
|Brooks, T. J. (Normanton)||Hobson, C. R.||Ross, William (Kilmarnock)|
|Broughton, Dr. A. D. D.||Holman, P||Royle, C.|
|Brown, George (Belper)||Houghton, Douglas||Shackleton, E. A. A.|
|Brown, T. J. (Ince)||Hoy, J.||Shawcross, Rt. Hon. Sir H|
|Burke, W. A.||Hudson, J. H. (Ealing, N.)||Silverman, J. (Erdington)|
|Burton, Miss E.||Hughes, Hector (Aberdeen, N)||Simmons, C. J|
|Butler, H. W. (Hackney, S.)||Hynd, H. (Accrington)||Slater, J,|
|Champion, A. J||Hynd, J. B. (Attercliffe)||Smith, Ellis (Stoke, S.)|
|Clunie, J.||Irvine, A. J. (Edge Hill)||Sorensen, R. W.|
|Cocks, F. S||Isaacs, Rt Hon G. A||Soskice, Rt. Hon. Sir F|
|Coldrick, W||Janner, B.||Stewart, Michael (Fulham, E.)|
|Collick, P.||Jay, D. P. T.||Stross, Dr. B.|
|Collindridge, F.||Jeger, Dr. S. W. (St. Pancras, S.)||Taylor, H. B. (Mansfield)|
|Cooper, G. (Middlesbrough W.)||Jones, D, T. (Hartlepool)||Taylor, R. J, (Morpeth)|
|Cooper, J. (Deptford)||Jones, William Elwyn (Conway)||Thomas, D. E. (Aberdare)|
|Corbet, Mrs F. K. (Peckham)||Keenan, W.||Thomas, I. O. (Wrekin)|
|Cove, W. G.||King, H, M.||Thomas, I. R. (Rhondda, W.)|
|Craddock, George (Bradford, S.)||Lee, F. (Newton)||Thorneycroft, Harry (Clayton)|
|Crosland, C. A. R||Lindgren, G. S||Thurtle, Ernest|
|Cullen, Mrs A.||MacColl, J. E||Tomlinson, Rt. Hon G|
|Daines, P.||McInnes, J.||Tomney, F.|
|Darling, G (Hillsboro')||McKay, J. (Wallsend)||Turner-Samuels, M|
|Davies, A. Edward (Stoke, N.)||McLeavy, F.||Ungoed-Thomas, A|
|Davies, Harold (Leek)||MacPherson, Malcolm (Stirling)||Wade, D. W.|
|Davies, S. O. (Merthyr)||Malialieu, J. P. W. (Huddersfield, E.)||Wallace, H. W|
|de Freitas, Geoffrey||Manuel, A. C||Weitzman, D.|
|Deer, G.||Marquand, Rt. Hon. H. A.||Wells. P L. (Faversham)|
|Delargy, H. J||Mathers, Rt Hon. George||West, D. G.|
|Donnelly, D.||Mellish, R. J.||Wheatley, Rt- Hon. John (Edinb'gh, E.)|
|Driberg, T. E. N.||Messer, F.||Whiteley, Rt Hon. W|
|Dye, S.||Middleton, Mrs L||Wilkins, W. A|
|Ede, Rt. Hon. J C.||Mikardo, Ian||Willey, F. T (Sunderland)|
|Edwards, Rt. Hon. N. (Caerphilly)||Mitchison, G. R||Williams, D. J. (Neath)|
|Edwards, W. J (Stepney)||Moeran, E. W||Williams, Rev, Llywelyn (Abertillery)|
|Ewart, R.||Monslow, W.||Williams, Ronald (Wigan)|
|Fernyhough, E.||Moody, A. S||Williams, Rt. Hon. T. (Don Valley)|
|Finch, H. J.||Morgan, Or. H. B.||Williams, W. T. (Hammersmith, S.)|
|Fletcher, E. G. M. (Islington, E.)||Morris, R. Hopkin (Carmarthen)||Wilson, Rt. Hon J. H. (Huyton)|
|Follick, M.||Morrison, Rt. Hon. H. (Lewisham, S.)||Winterbottom, I. (Nottingham, C.)|
|Fraser, T. (Hamilton)||Mort, D. L||Winterbottom, R. E. (Brightside)|
|George, Lady M. Lloyd||Moyle, A||Wise, Major F. J.|
|Gibson, C. W.||Molley, F W||Woodburn, Rt. Hon A|
|Gilzean, A.||Neal, H.|
|Granville, E. (Eye)||Noel-Baker, Rt. Hon. P. J.||TELLERS FOR THE NOES:|
|Mr. Pearson and Mr. Sparks.|
§ The Deputy-Chairman
The next two Amendments go together and can, I think, be discussed at the same time.
§ Mr. Molson
I beg to move, in page 9, line 34, to leave out the first "or."
In order that the purpose of this may be fully understood, I shall deal also with the following Amendment in line 34. after 1454 "reconstructed," insert "or remodelled," which explains why it is desirable to leave out the word "or."
Since I was unsuccessful on the last occasion in persuading the Solicitor-General to accept the criterion of the interests of good estate management, perhaps I may try again with the word "remodelled" after "reconstructed." I 1455 ventured to put to him the case of a substantial estate where different parts of the property had been let on different leases and where, perhaps, there may be two adjoining shops and one has come back into the possession of the landlord. In the case of the adjoining shop the tenant seeks under this Measure to obtain a renewal of his lease. I suggest that in a case of that kind it would be difficult to draw a distinction between the remodelling of premises and the reconstruction of the premises. A great deal of what the Solicitor-General said against the Amendment I last moved would naturally apply in the case of property being demolished, or reconstructed.
He made a great deal, as one would expect of a Member of the Government Benches today, of the undesirability of too much attention being paid to an enhanced or increased rent. But, of course, in a case where the demolition of the property, or reconstruction of the property, was the motive which actuated the landlord, the county court judge, if he is satisfied that it is a reasonable claim, is required under this Bill not to grant a renewal.
I suggest it is quite impossible to draw any logical line of dfferentiation between the reconstruction of the premises and the remodelling of the premises, but it appears to me that the word "remodelling" might include cases where it was obviously desirable in everybody's interest that the landlord should regain the possession of the property in order to carry out the remodelling. I therefore hope the Government will regard this Amendment as being in general line with the other words of this paragraph, and that they will be willing to accept the Amendment.
§ The Attorney-General
The effect of the Amendment would be to add remodelling to demolition and reconstruction as grounds on which the landlord may re-acquire possession of the premises. The first question I ask myself about that is, what on earth does remodelling mean? I have not the faintest idea, and that is the answer I must give. It is not a term of art. One has heard the expression in other contexts. I believe that in these hard times one talks of remodelling a lady's hat, but before one decides to remodel a lady's hat suitably, 1456 one has to see what the lady is like. It is exactly the same in the case of remodelling premises. This really begs the whole question.
One has to see who the tenant is to be before one knows in what way one is likely to remodel the premises. Until the landlord has decided who he wants to re-occupy the premises, he cannot decide what form of remodelling he needs, even if one could attempt any definition of what is meant by the phrase, and I should have thought that in a Bill like this one would want a definition of it.
I should think that the Clause as it stands gives very ample relief to the landlord. Certainly many hon. Members on this side of the House think it gives the landlord far too much opportunity of getting the premises back. It has been thought that the powers which we have given to the landlord—I have no doubt it would be thought so all the more if we were to enlarge them in the way proposed—are really quite an inroad on the general principle of the Bill, which is to enable the tenant to secure a short continuation of the lease.
To add remodelling to the grounds on which the landlord is entitled to eject the tenant would really be doing something to enable the landlord to get possession of individual premises which he did not want to reconstruct or develop in connection with some general scheme of estate management but with which he wanted to deal as individual premises—something which could probably quite well wait for a year or two, or which, if it was so urgent, could be taken into account by the court in deciding whether in all the circumstances the grant of a new lease was reasonable.
I can quite see that where there is demolition or reconstruction involved that may be part of a general scheme and there may be a case for it. We thought we were going a long way in including that provision but, where all that it is desired to do is to put a new chimney on one side of a house or to alter a dormer window to a gable window—
§ Mr. Molson indicated dissent.
§ The Attorney-General
The hon. Member shakes his head but if that is not remodelling I do not know what it is.
§ Mr. Molson
I am at a great disadvantage in having lost an Amendment which was replied to by the Solicitor-General and in apparently being about to lose another to which the Attorney-General is replying, when their arguments are not necessarily consistent. The case I tried to put to the Solicitor-General, and to which I had no satisfactory answer, was where there were two adjoining properties and in the interests of good estate management it was desirable that they should be knocked into one. I sought to cover that in my first Amendment. I rather gather from what the Attorney-General is saying that he thinks that in a case of that kind the landlord would, under the Bill, be able to recover possession of the second shop in order to knock the two together. That is a matter of considerable importance and is what we are trying to deal with.
§ The Attorney-General
I should have thought that that was certainly more reconstruction than remodelling. As I said when I began my observations about this Amendment, I really do not know, and I venture to think that the hon. Member does not in the least know, what remodelling means. I should have ventured to suggest that it relates to a single shop as an entity and does not involve a scheme of reconstruction such as would be involved in knocking two or three shops into one.
§ Mr. Selwyn Lloyd
Does the Attorney-General know what reconstruction means, and would the reconstruction of part of the premises make the provision apply?
§ The Attorney-General
I am much obliged to my hon. Friend; that is a very good definition. It is a question of degree for the learned judge in all these cases. I venture to think that the learned judge would be entirely unfamiliar with the word "remodelling" I have never come across it before.
§ Mr. Manningham-Buller
May I put one question on that point? When the Attorney-General says that he has not come across the word before, may I say that I think he will find it in the Landlord and Tenant Act, 1927, and that when there is a departure in a provision 1458 of this sort from a form of words which is used in a previous statute, the draftsman usually has a reason for doing that. If the Attorney-General looks at the relevant Section of the 1927 Act, he will find the word "remodel."
§ The Attorney-General
I am obliged to the hon. Gentleman. Section 5 (3, b) says:if the landlord proves—… (ii) that he intends to pull down or remodel the premises.Well, there it is. I must confess that I am still as much in the dark as I was before as to what it means. I really have not the faintest idea, and hon. Gentlemen opposite who were responsible for this piece of legislation which has disappointed us all in practice seem to be unable to suggest what remodelling is and the definition seems to me to leave much to be desired.
I should have thought it must be the fact, as I suggested, that remodelling would be the changing of a gable window into a dormer window, or the putting of the front door at the back, or the back door at the front or matters of that kind. Apparently, from this Section, remodelling may mean something practically involving pulling down, or it may be simply the putting on of a different kind of chimney. Those are matters which we think cannot be so urgent that they have to be done within one, or at the most, two years. They are not matters which really arise as part of good estate management. If they are indeed matters of great urgency in a particular case then the county court judge will take them into account in deciding whether in the circumstances it is reasonable to grant a new lease.
I find as a matter of fact that paragraph 162 of the Final Report of the Leasehold Committee criticises, as I venture to criticise, this most unfortunate piece of legislative drafting for which lion. Members opposite were responsible in 1927. The Leasehold Committee say that it was too wide, pointing out that it covered work which could be done without disturbing the tenant at all. I should have thought that was very sound reasoning, and I hope that the hon. Member for The High Peak will not press this Amendment.
§ Mr. Molson
May I ask the Attorney-General if he usually learns his brief as he goes along in this way?
§ Sir William Darling (Edinburgh, South)
I would not suggest that I could usefully intervene in this Debate, but the innocence or ignorance of the Attorney-General emboldens me to direct his attention to a physical example of remodelling which is not reconstruction. I direct his attention to Regent Street, where there is a Crown Land lease. It is for the purpose of my argument, and with no desire to give it advertisement, that I mention the name of Messrs. Liberty and Company, an old-established firm of textile merchants who have a classic building in Regent Street. In the adjoining street, Great Marlborough Street, they have a building of an entirely different character—
§ Sir W. Darling
My hon. Friend says it is disgusting, but it is an old English pattern. I suggest to the Attorney-General, who is unaware of any example of remodelling in a reconstructed building, that those buildings were reconstructed to a different degree and remodelled; but for the classic pattern in Regent Street has been substituted one reconstructed building and one entirely remodelled. Were it not that I do not wish to mention their names, I could give him examples of large numbers of other emporia throughout the country. As any shop fitter would say, there is a difference between reconstruction and remodelling. Reconstruction means replacement. Remodelling is a re-decoration in marble or bronze or other faces of one kind or another. That, in my experience, is the difference between reconstruction and remodelling, and it is germane to this discussion.
§ Mr. Arthur Colegate (Burton)
We ought to try to help the Attorney-General in this matter. The hon. Member for Edinburgh, South (Sir W. Darling) has done his bit, but I might point out that one of the right hon. and learned Gentleman's colleagues has got a still finer example in the remodelling of Carlton House Terrace to create the new Foreign Office. That constitutes the remodelling of a long series of dwelling-houses into offices. That is known as the remodelling of Carlton House Terrace.
§ Mr. Janner
The arguments we have heard should lead the Committee to realise that the interpretation of the word "remodel" is so wide that it would be absurd to put the tenant at the mercy of anyone who wanted to remodel. For my part, the whole idea of reconstruction as contained in this Clause is wrong. The Clause is not the same as the provision in the Scottish Measure, for the reason that under this subsection landlords are entitled to turn people out merely because they want to reconstruct. Here it is sought to amend the subsection to include people who for the benefit of their own artistic or inartistic taste, want to remodel. It is scandalous. I hope that this Amendment will be resisted, and that my right hon. and learned Friend, when he reconsiders this Bill, will not only throw out this Amendment but delete the whole subsection.
§ Mr. Walker-Smith
The first reappearance of the right hon. and learned Gentleman the Attorney-General in this debate has been in the true tradition of the first appearance of British armies on the Continental battlefield—a gallant and good-tempered disaster. No doubt he will be true to the further and more flattering part of the tradition and go steadily from strength to strength. But the reason why the word "remodel" was inserted in the Landlord and Tenant Act, 1927, and why it has stood the test of time for 24 years, including two Socialist Governments who have not seen fit to amend that Act, is that the other words "pull down" or "demolish and reconstruct" are very definite words implying the total destruction or removal of the premises involved.
If some such word as "remodel" is not used, then partial schemes of readjustment are excluded by the words "pull down" in the Act of 1927 and the words "demolished and reconstructed" in this Bill. It is for that reason that the word "remodel" was inserted in the Act of 1927, and it is for the same reason that it is necessary in this Bill. Cases have arisen in practice where the landlord is able to show a remodelling which falls short of a total demolition and reconstruction. As the Attorney-General will know, if he has the same precise knowledge of the Town and Country Planning Act as he has of the Landlord and Tenant Act, 1927, the word "demolish" there means total demolition: and other words 1461 are applied to lesser matters of the adjustment of premises. There is a strong case for putting in these words. I hope that the Committee will not be asked to reject the Amendment on the rather unsubstantial grounds put forward this evening.
§ 9.15 p.m.
§ Mi. Selwyn Lloyd
I gather that we have only a limited time, and I hope the Committee will not take too long to dispose of this matter, as I think the learned Attorney-General has gone some way to meet us. I would refer the Committee to paragraph 162 of the Report of the Leasehold Committee which, dealing with this question of landlord and tenant, said:Subsection (3, b, ii) and (3, b, iii) enables the landlord to defeat the tenant's claim if the premises are required for demolition, remodelling or redevelopment, but makes no stipulation as to the character or dimensions of the work proposed. It is in the long-term interests of tenants "—and this is what hon. Members opposite so often forget—and the community—that no unnecessary restrictions should be placed on the rebuilding or remodelling of obsolete buildings, and we consider that reasonable provision should be made for such cases. It should not, however, be possible to use as an excuse for getting rid of an unwanted tenant such minor and non-essential operations as, for example, the erection of a new shop front which may not in any case he inconsistent with his continued occupation.I understand that the Attorney-General says that substantial remodelling only comes within the definition of the word "reconstruction," and I would therefore ask my hon. Friend whether it is necessary to press the Amendment to a Division.
§ Mr. Molson
While it strikes me that the fact is that the Landlord and Tenant Act, 1927, did contain a special reference to this intermediate matter, I hope the Government will consider, between now and the Report stage, whether this really does give effect to what the learned Attorney-General said is the intention. Without asking for an assurance to that effect, but in the hope that he will try to make certain that the Bill does give effect to what he said was the intention, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn1462
§ Sir Patrick Spens
I beg to move, in page 9, line 34, at the end, to insert:(d) that the tenant has given notice 01 termination of the tenancy and in consequence of that notice the landlord has contracted to sell or let the premises or has taken any other steps as a result of which he would in the opinion of the court he seriously prejudiced if he could not obtain possession of the premises; orThis, I believe, is an Amendment which will meet with acceptance on all sides of the Committee. One of the points of this Clause is that there shall be nothing to stop a tenant making an application for the extension of his lease, notwithstanding that he himself may have intimated to his landlord that he does not intend to continue his tenancy, and that, on the faith of such notice from the tenant, the landlord had himself entered into a contract either to sell or let the premises, or to take other steps as the result of which he ought now to be allowed to retain possession of the premises. This cannot apply to a very great number of cases, but it does apply to the case of the tenant who gives notice to the landlord that he does not want the premises and then changes his mind and says, "Well, after all, now I will make application." As we have seen during the earlier stages of this debate, if he does make such application, he then, in fact, secures for himself an extra period of the tenancy of the premises.
All the way through the discussion on this Bill, I have had in mind the point that one of the great faults under a Bill of this sort is that, if landlords know that leases are to expire at an early date, they do not wait until they have expired before they make arrangements as to what they are going to do with their property in future, and they do grant what are called reversionary leases to start on the day after the normal lease expires. Into every such arrangement this Bill enters, and allows the sitting tenant to obtain an extra year, or possibly an extra two years, and no one in the Committee throughout the debate has directed his mind to what is to be the effect on these contracts for reversionary agreements. It is not only the landlord who is going to be affected.
What is going to be the resulting position in law? I think the learned Attorney-General had better consider the point, because I have no idea. It may be that 1463 such a contract will be frustrated, and that we shall have tenants coming along saying that the previous lease is due to expire on 31st March, 1951, and wanting it continued for another year. What is going to happen in such a case and what rights has the landlord got? Has the tenant a right of action for damages against the landlord for exercising his right to grant a reversionary lease? What is the position in law or is the whole thing frustrated? Absolutely nobody has directed his mind throughout the whole debate up to date, either on Second Reading or during the Committee stage, to that position, which is a very common position, but here at least we have this Amendment.
It is a comparatively small but very important. Amendment to ensure that if a tenant has intimated to his landlord that he is not going on with his tenancy when it is due to expire, then, at least, the landlord ought to be entitled to say to the court, "I am entitled to have possession of these premises in order to hand them over to the person with whom I have contracted to sell them or lease them." I cannot believe that that is a party matter. It is going far beyond the mere breaking of one contract; it is involving a number of people. If the Bill is left in its present form, I think it will create a very serious and thoroughly undesirable situation.
§ The Attorney-General
I have listened with a good deal of sympathy, if I may say so, to what the hon. and learned Member for Kensington, South (Sir P. Spens), has said, but, as his Amendment now stands, it really involves a contradiction in terms of the existing Clauses of the Bill. His Amendment refers to the case where the tenant has given notice of termination of the tenancy. The Bill is not intended to catch that case; the Bill only catches the case where the tenancy has come to an end by the effluxion of time, and, consequently, I think it will appear at once to the hon. and learned Gentleman that the drafting of his Amendment is not quite appropriate to the case he wants to meet.
I understood from what he said that he really wants to raise a kind of estoppal against the tenant who says, "When my lease comes to an end in six months' time, I intend to clear out. I am not going to 1464 ask for a renewal, and you can make your arrangements on that basis." It is certainly not the intention of the Bill to give the tenant who has given notice to quit a kind of opportunity of thinking twice about it, and, having given a notice to quit, which under the law as it now stands he is not entitled to withdraw, then to go to the tribunal and ask for a renewal.
If the hon. and learned Gentleman will withdraw his Amendment, we shall see if we can find a form of words which will meet the case he has in mind. I shall not give any guarantee about it because I think it is going to be a little difficult to find the appropriate, form of wording, but I quite see the point which the hon. and learned Gentleman contemplates. We think that, at first sight at all events, it would be unfair to allow a landlord, who had altered his position on the, faith of some representation his tenant had made to the effect that he was going to leave at the end of the tenancy, to be prejudiced by the tenant changing his mind, withdrawing his notice in the way in which he could not under the existing law, and making an application to the court. As I say, we shall look into the point, but I do not think it is an easy matter of drafting.
§ Mr. Manningham-Buller
I hope the right hon. and learned Gentleman will bear in mind that under Clause 3 (1) a notice has to be given by the tenant if he does not want his tenancy to continue, and that, in that sense, such a notice is notice of termination. Will the right hon. and learned Gentleman bear that in mind when looking at the rest of the Amendment?
§ Sir P. Spens
I am much obliged to the right hon. and learned Attorney-General for what he has said, but I want him, if he will, in addition to dealing with the smaller point on this Clause, also to consider the major point as to what is going to happen to landlords who in perfectly good faith granted reversionary leases on the basis that the existing leases were going to be terminated. Having raised the point, I am quite certain that the right hon. and learned Gentleman will consider it, and so far as the particular point to which I have referred is concerned, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.1465
§ The Deputy-Chairman
I think that the next two Amendments might be discussed together—in page 9, line 35, leave out paragraph (d), and in line 36 after "authority" insert: "that the Minister of Town and Country Planning has certified."
§ Mr. Manningham-Buller
I beg to move, in page 9, line 35. to leave out paragraph (d).
I am sure the Committee will remember that in the general discussion of all our most reasonable Amendments at the beginning of the Committee stage, the hon. Member for Leicester, North-West (Mr. Janner) rose to his feet and described all our Amendments as "wrecking," and he was supported by the hon. Member for Oldham, West (Mr. L. Hale). I am delighted to find that on reconsideration he finds that some of our Amendments are well-founded, and I welcome his name and that of his hon. and gallant Friend the Member for Brixton (Lieut.-Colonel Lipton) appended to this Amendment in our support. I should, however, make it clear that this curious conjunction of names in no sense indicates a coalition.
I ask the Committee to look at paragraph (d) of subsection (3). In answering a previous Amendment dealing with estate management the Solicitor-General put forward the argument that putting in a proviso that where possession was required in the interests of good estate management would mean taking the matter right out of the hands of the judge. Yet what do we find in paragraph (d)? We find these words:where there subsists in the premises an interest belonging to a public authority, that in the public interest a new tenancy ought not to he granted.So we find the Government themselves excluding from the so-called benefits of this Measure any premises in which there is an interest belonging to a public authority. "Public authority" is defined later on. It is much easier to say what is good estate management than it is to say what is in the public interest. That is a very vague phrase in common use, but I ask the Committee to consider what this means in relation to a new town. It means, for instance, that a shopkeeper who has moved out of Camberwell into Crawley new town will not, because of this paragraph, have the benefit of getting 1466 an extension of his lease if the development corporation come down and say to the judge, "It is not in the public interest that he should have one."
§ The Attorney-General indicated dissent.
§ Mr. Manningham-Buller
The right hon. and learned Gentleman shakes his head. Let us look at the definition of "public authority" as set out in line 41 and the subsequent lines:The reference … to an interest belonging to a public authority is a reference to an interest belonging to a Government department or held on behalf of His Majesty for the purposes of a Government department or held by a local authority (as defined in the Town and Country Planning Act, 1947), by statutory undertakers (as so defined) or by a development corporation (as defined in the New Towns Act, 1946).I think I am right in saying that this gives a power to a development corporation to come along and meet an application by a shopkeeper for an extension of his lease by saying, "It is not in the public interest," and if they do so the court shall not order the grant of a new tenancy. There is nothing here about reasonableness. That is mandatory. Where that is established, the court shall not order the grant of a new tenancy. I have taken th2, example of a new town, but the same applies to many shops of which a local authority is the landlord, where the local authority have the interest, and to any premises in which there is any interest of a public authority.
I ask the right hon. and learned Gentleman: Does paragraph (d) operate when a public authority has a sub-tenancy or a tenancy of part of the premises? What exactly is meant by "an interest belonging to a public authority"? Does it mean any interest, or have they got to have the whole subject matter of the tenancy agreement? Why is it that this particular exception in favour of certain categories of landlord is being made from the provisions of the Bill? It seems to me to follow that shopkeepers outside the areas of the new towns, shopkeepers who do not hold their premses from the local authority or a Government Department, and shopkeepers in premises in which there is no interest held by a public authority, are being differently treated from those coming within those categories. I ask the Attorney-General to explain exactly why this provision is in the Bill.
§ The Attorney-General
I must confess that I thought the hon. and learned Gentleman was making rather a parody of the existing provisions of the Bill when he suggested that all that was necessary was for a development corporation to go to the court and say that it was in the public interest for them to have the premises and for a new lease not to be granted and that the county court judge would have no option but to refuse a renewal of the lease.
§ Mr. Manningham-Buller
That has been the argument of the Solicitor-General in relation to estate management.
§ The Attorney-General
I did not hear my right hon. and learned Friend's argument on that point, but it seems to me from my recollection of the provisions of the Bill that that is an entirely different point. It is perfectly true here that in this portion of the Bill—not in Part I but in this portion—we have thought it right to make a certain discrimination between the public authority and the private landlord. I do not say it applies in every case, but I suppose it is generally true that the local authorities and public authorities are more the custodians of the public interest than the ordinary private landlord—
§ The Attorney-General
—whose interests as a rule—and I am sure the experience of the hon. Member for Edinburgh, South (Sir W. Darling), will bear me out— is a financial one. Certainly in the pattern of legislation dealing with public and local authorities over the last half century, it has been the view of successive Governments and Parliaments that it is proper to invest public authorities with powers which they may exercise in the public interests, and which nobody would ever dream of giving to a private landlord—powers of compulsory purchase and powers of management of a kind quite different from those vested in the ordinary landlord. I am not making any party political point, but I should have thought that it is right to say that the public authority is interested as a guardian of the public interest in the way in which it deals with its estate management. Its concern is not so immediately one merely of finance but of protecting and promoting the public interest generally. That is the reason why we make this discrimination.
What, in fact, is the discrimination which we make? It is only this: that 1468 in the case of premises in which the public authority has an interest—it may be a sub-tenancy or it may be only a partial interest—it can go to the county court and say—and produce evidence to support what it says—that it is in the public interest that the lease of those premises should not be renewed. But the hon. and learned Gentleman will know very well from his experience, as I know from mine, that county court judges do not as a rule act on the ipse dixit particularly of public corporations. They require to be satisfied by evidence, by proof, that a thing is in the public interest, and if it appears to a county court judge, after having heard the whole of the evidence for the shopkeeper who wants a renewal and for the public corporation that wants to avoid a renewal, that it is contrary to the public interest to renew that lease, who is to say that the lease ought to be renewed?
I should have thought that this was a provision which would commend itself to hon. Members on both sides of the House as being clearly necessary for the protection of local authorities when they are acting in the promotion of the public interest, and only when they are so acting, that being the matter which it falls to the county court judge to decide on application under the Clause.
§ Mr. MacColl (Widnes)
I am rather afraid that my right hon. and learned Friend may feel that he is being shot at from the opposite point of view to that expressed by the hon. and learned Member for Northants, South (Mr. Manningham-Buller), but I should like to put to him certain practical difficulties which occur to me in the Clause and which I have tried to meet in the Amendment on the Order Paper in my name and that of my hon. and gallant Friend the Member for Paddington, North (Captain Field)—in line 36, after "authority," insert:that the Minister of Town and Country Planning has certified.In that Amendment there is reference to the Minister of Town and Country Planning. Since I put down the Amendment, the leopard has changed his spots and, on the face of it, in that sense the Amendment is now wrong, but the principle is the same. I should like to take the decision of what is the public interest from the discretion of the county 1469 court judge and direct the county court judge to rely on a certificate from the Ministry of Local Government and Planning.
There is one respect in which I think most of the Committee will be agreed. We have continually emphasised the undesirability of placing too much weight on the shoulders of the county court judge and of leaving him too much discretion. That point was made by the hon. and learned Member for Wirral (Mr. Selwyn Lloyd), among others, in a discussion on the question of fixing a reasonable rent. The hon. and learned Gentleman then spoke about the Clause as placing far too great a burden on the discretion of the county court judge.
I agree that to charge the county court judge with deciding whether or not the timing of a particular planning development is or is not in the public interest is placing upon him an intolerable responsibility. Perhaps I could take as one illustration the example given by the hon. and learned Member for Northants, South—the case of the new town which is developing its town centre, and which has already bought the existing business leases in anticipation of that development. An outline plan has been prepared and has been the subject of a public inquiry in which evidence has been called on both sides. The Minister has approved the proposal.
Then, when the new town corporation think that the time has arrived for them to develop the town centre, they find that they have to start proving the whole case for the new town and for that particular type of plan for the town centre from scratch before county court judges who are not planning experts and who, as hon. Members who are more experienced than I have said, vary in temperament, in outlook and in attitude to these problems. It seems to me that it would be much simpler and more satisfactory to leave the decision about the expediency, the timing of the development and its character and design to the planning Ministry who have already approved the outline plan rather than suddenly to bring into it the county court judge.
That is a general point, but I should also like to make a particular point that in the Town and Country Planning Act, 1470 1944, which was not an Act passed by this Government, when a similar situation arose in the case of the Rent Restriction Acts, the planning authority could, under Section 30, ignore the Rent Restriction Acts in the case of property which the Minister certified was required immediately for the purpose for which it was acquired.
To continue the analogy, the position is even more complicated when the new town corporation finds itself with a mixed area, partly of commercial property and partly of residential property. As I see it—my right hon. and learned Friend will correct me if I misunderstood him—the new town corporations will have to go, on the one hand, to the Ministry to convince the Minister that the time is ripe to take this property into their possession for development, and at the same time, in the case of commercial property, they will have to go to the county court judge and try to convince him of the same thing. If they succeed with the county court judge and fail with the Minister, or succeed with the Minister and fail with the county court judge, their position in either case will be completely ruined, because they will not be able to undertake the development unless they get the whole area.
The point I want to put is that, if we accept the intention of this subsection—and I would agree that it is desirable and, indeed, essential if we are to have any movement forward in planning development—we ought to take the burden off the county court judge and place it on the Minister, who already must be concerned with this problem, leaving it to the county court judge to say, "I am not a planning expert, I do not know all the ins and outs of commercial development, but one thing I can say is that I have seen the certificate of the Minister and that is enough for me."
May I finish by taking up the example quoted by the hon. and learned Member for Northants, South, who complained that the shopkeeper in Camberwell who was going to a new town might find himself dispossessed. What is more likely is that the shopkeeper from Camberwell might never see the new town, because it might never be possible to develop a new town owing to the difficulties under this subsection. In view of the slowness of the development of these new towns, 1471 about which hon. Members opposite so often complain, I thought that they would have been very careful before subjecting this type of development to further difficulties.
§ Brigadier Medlicott (Norfolk, Central)
It appears to me that the Attorney-General's arguments would be very sound if this were permanent legislation instead of a standstill Measure. He has tried to distinguish between public authorities having an interest in property and other kinds of owners, and however valid or invalid these distinctions may be, they are only applicable to a permanent state of the law. If his argument rests upon that kind of distinction under a standstill Measure, it confirms that this subsection is quite out of place in this Bill.
§ The Attorney-General
We have not very much time to deal with the remaining Clauses of the Bill, but I thought it would be helpful if I intervened at once to deal particularly with the Amendment which is in the name of my hon. Friend the Member for Widnes (Mr. MacColl) to which he has spoken just now. That speech was, of course, really directed in the opposite sense to that of the speech of the hon. and learned Member for Northants, South (Mr. Manningham-Buller), who moved the Amendment. Under the Bill as drafted, it would be the county court judge who would decide whether or not it was in the public interest—and contrary to the view expressed by the hon. and learned Member included in the words "public interest" obviously would be the question whether or not it was reasonable, because what is unreasonable is very often contrary to the public interest—that the application should be granted.
My hon. Friend the Member for Widnes took the view that that was a matter which could more conveniently be left to the Ministry of Town and Country Planning. We, of course, thought of that method when we were drafting the Bill. It is a very familiar method in many of the Sections of the Town and Country Planning Act. There Ministers are given power to certify in the way suggested by my hon. Friend, and I would agree with him at once that if this were permanent legislation, where long-term development proposals were under consideration—proposals which were 1472 subject to the general control of the Minister—then it would be more appropriate to give this power to the Minister than to the county court judge. The county court judge is not the planning authority, and the Minister is.
Here we are dealing with legislation of a purely temporary character which no doubt in some cases may impose hardship or inconvenience upon landlords. That being so, we thought it right to reduce to a minimum the cases in which Government Departments, a particular Minister, or a particular kind of public authority, should be given privileges under the Bill which are not accorded to landlords in general. It was with that view that we thought it better in dealing with this temporary privilege to make the judge of the public interest the county court judge, who would hear on the spot the evidence in the particular case.
I do not think that that would result in any conflict between the Minister and the county court judge. The Minister would decide whether a particular development was required and whether it would involve taking over a particular premises. The county court judge, having no doubt in mind the Minister's development plans, would decide whether the public interest was violated by deferring the operation of those plans for a year or at the most for two years. That seems to me a fair way of dealing with the matter.
I hope that the Committee will now be able to come to a conclusion on the special privilege that we have granted here, one which is right from the point of view of the community as a whole. The machinery for the granting of it through the county court judges of the country is likely to operate satisfactorily and to enable the county court judges to take account of the circumstances, the reasonableness, and so on, of the case. It is likely to result in justice being done in the public interest, as the Clause provides.
§ Mr. Foster
I found myself in agreement with quite a few of the remarks made by the hon. Member for Widnes (Mr. McColl) but I draw a different con clusion. I should like to ask the Attorney-General one or two questions. The words "in the public interest" are 1473 very dangerous indeed. Many things have happened in the country which are not, in the view of the majority of the people, in the public interest, yet in the cause of liberty they allow them to continue. In my submission it would be placing an intolerable burden on a county court judge, to ask him to decide whether the existence of a particular shop for another year was or was not in the public interest.
We should get local authorities saying, "This shop sells undesirable things. It is a herb shop and we think a herb shop in this place is not in the public interest." It is not a question of fact like deciding whether somebody has or had not broken a contract. It involves the particular privileges of a county court judge, his social philosophy, his ideology. It is not a question which can be proved in court. In the cause of liberty we have decided that we shall not allow the State to say, "This is against the public interest; out it must go." There may be various views about the matter. I think the hon. Member for Leicester, North-West (Mr. Janner), agrees with this argument because he has signed the Amendment. It will be very dangerous.
Under the Amendment by the hon. Member for Widnes, we would have to accept the "Say-so" of the Minister of Local Government and Planning on a question on which he may take quite a different view from the majority of the people of the country. It is not only the planning that matters but a person's views about the nation as a whole. It may not be in the public interest to have a shop that, at the same time, carries on a commission agency, but in the cause of freedom we do not interfere, although we may not approve of it.
The amendment which we suggest is that it should be removed entirely. We believe that the remedies of compulsory purchase and the remedies given under the town and country planning Acts generally are fully sufficient to protect the ordinary public interest. A thing which should not be encouraged in any direction is to give the courts the judgment of what is in the public interest if we can possibly avoid it. It is a very loose term and, with the greatest respect to all county court judges, it is one where they cannot help bringing in their own philosophy. If hon. Members were 1474 sitting as county court judges and had to decide what was or was not in the public interest, I guarantee there would he 20 or 30 different views on the same facts. I see the hon. Member for Tottenham (Mr. Messer) nodding. It is a very strong argument.
It also involves a very odd demand as to what kind of evidence should be brought forward. A local authority might say that it had always taken the view that homeopathic shops were against the public interest because they did not believe that the system of homeopathic medicines was in accordance with the public interest. They might say that they were not in favour of the existence of a homeopathic shop which sold herbs, because it did a lot of harm to people. I am not subscribing to that view but I know that it is held and a local authority might hold it. What is the county court judge to do'? Is he to be influenced by the fact that he is a believer in homeopathic medicine? If he is, he will find it extraordinarily difficult to find that homeopathic evidence before him is wrong and that the other side is right. This is not a very far-fetched instance. It is only an instance of what might happen in any case.
There are also statutory undertakers, local authorities and all kinds of people. I imagine that it covers the Electricity Authority. They may or may not think that too many shops selling gas appliances are against the public interest because they feel that in the district emphasis ought to be on electricity. Apparently they could try to persuade the county court judge that in the district electrical appliances ought to be sold and that there should not be too many shops selling gas appliances.
I do not know whether the National Coal Board comes within the definition. Perhaps the Attorney-General can tell me. Perhaps the National Coal Board could come along with their own point of view. Economic principles and all kinds of principles are involved in the conception of "public interest." I ask the Attorney-General to consider these arguments in the light of what the hon. Member for Widnes (Mr. MacColl) said. I am very much against his Amendment as I think it would be a serious infringement of the principles of liberty.
§ Mr. Gibson
I hope that the Committee will not accept the Amendment, in spite of the fact that it bears the signature of two of my hon. Friends. It ought to be pointed out that we are not really discussing something which is "in the public interest"; it has also to be premises in which a public authority already has an interest. It means that the local authorities must already have purchased in some way an interest, normally by the compulsory purchase order procedure, under which they will have been subjected to a great deal of public criticism and inquiry.
I hope hon. Members opposite who protest so much about slowness in housing will take note that a whole housing scheme in London has been held up for two years because of the difficulty of getting control of one shop in a pivotal position on the site. I suggest to the Committee that it would be unfair to the authority which has acquired that interest for public development to be left with a barrier, because under this Amendment one shop could hold up the whole development for two years. This Clause provides that where in such a case the interest is already owned by the local authority, the judge may be able to decide, if it is for the public good, that that interest shall remain with the local authority and that the tenant shall be removed.
One hon. Member said that the interest of private enterprise in these matters was merely to obtain a rent, and as big a rent as possible. The interest of the local authority is the public good. [HON. MEMBERS: "Not necessarily."] I am surprised at hon. Members opposite. After the way in which they jabber sometimes about housing progress and the progress of new towns and other large projects, I should have thought that they were concerned with things which were for the public good. If it is in the interest of property owners, they are very much concerned about the public good. I have discovered that during the debates on this Bill.
The fact is that a good local authority which has to move a shop in the course of its development rehouses the shopkeeper in another shop or provides him with compensation sufficiently large to enable him to find other premises. In most cases they are re-housed in other 1476 shop premises owned by the local authority. That being so, there can be no serious difficulty so far as such a tenant is concerned. I think this Clause will work reasonably well, and I hope that the Committee will not accept the Amendment, which would cut out the possibility of this kind of development being carried on in the next few years.
§ Mr. Selwyn Lloyd
We cannot allow the hon. Member for Clapham (Mr. Gibson) to get away with that speech. If the landlord is a Socialist controlled public authority, it is one thing; if the landlord is a private individual, then quite a different set of circumstances must apply, according to the hon. Member. A public authority can put up the rent, even of a small property, as much as it likes, but for everybody else the Rent Restriction Acts must apply.
§ Mr. Ungoed-Thomas indicated dissent.
§ Mr. Lloyd
What we are suggesting here is that exactly the same criteria should apply to the public authority as to the private landlord. If, to take the hon. Member's example, it is the practice of a public authority to provide alternative accommodation when dispossessing tenants, it can get possession under the provisions of this Clause because subsection (3, b) makes it quite clear that if the landlord has offered alternative accommodation which is suitable, then the court has power to make the order. In exactly the same case if the landlord, the public authority, wants possession of the premises so that it can proceed with its reconstruction or the provision of more accommodation, than under this Clause it can get possession.
If the Government had had the sense to accept our Amendment about good estate management, then I agree that it would have widened the thing and would have been something which would have applied to both the public authority and to the private landlord. But no; the Government's attitude to this matter shows how entirely bogus is their argument regarding the Bill. They say that this is a standstill Measure to preserve the status quo while something is being worked out, but, of course, as far as the public authorities are concerned there is no standstill and no preservation of the status quo. In that case, the private individual 1477 must go to the wall. I hope that we shall vote on the Amendment.
§ Mr. Eric Fletcher (Islington, East)
It seems to me from the discussion we have heard this evening that the Clause ought not to stand as it is. I entirely disagree with the Amendment of the hon. and learned Member for Northants, South (Mr. Manningham-Buller), and I hope very much that my right hon. and learned Friend the Attorney-General will accept the Amendment of my hon. Friend the Member for Widnes (Mr. MacColl). I do not think it is right to leave to a judge the responsibility of deciding what is in the public interest. I do not think that that is a judicial function. It is not a question of fact, nor is it a matter on which evidence can be freely given.
Should a judge be faced with this task, when ex hypothesi a local authority is giving evidence about what it considers to be in the public interest, it would be very difficult to imagine any case in which a county court judge would be able to take a view that something was contrary to the public interest after the local authority concerned had given evidence to the fact that it was in the public interest. I should have thought that the question whether anything is in the public interest or not is a political, and not a judicial, function. Therefore, the House of Commons should not attempt to delegate that responsibility to the judiciary, but, by accepting the Amendment of my hon. Friend, should put the responsibility fairly and squarely on the political body which is responsible for saying whether in a given circumstance the public interest is such as could override the ordinary provisions of the Bill.
After all, opinions may differ as to whether a particular decision is or is not in the public interest, but that is a political matter and one on which people have their remedies if they disagree with the opinion of the public interest as expressed either by the Government Department or by the local authority concerned. If it is a Government Department who give their ipse dixit as to whether something is or is not in the public interest, then questions can be put in the House. I hope, therefore, that on reflection my right hon. and learned Friend will accept the 1478 Amendment of my hon. Friend the Member for Widnes.
§ Mr. Pickthorn
I hope that I can put plainly the question which I wish to address to the Attorney-General and indicate very shortly why it seems to me important. The question I want to put is about some words of the right hon. and learned Gentleman. He said that "the county court judge, no doubt having in mind the Minister's development plans." and so on. I am always rather put on doubt when people say "no doubt." I wondered how we were to be sure that that would be so. What is the machinery for making sure that the county court judge, in judging this question, would have in mind the Minister's development plans, and how would he get them?
My second point, which may, perhaps, indicate a little the importance of my first question, is this. The whole debate has been conducted upon the basis that what the county court judge has to decide is whether what is proposed by the authority is in the public interest. But that is not what the Bill says. The Bill puts it the other way round. As the Bill is drafted, what the county court judge has to decide has nothing whatever to do with development plans or what the authorities might otherwise do, but whether the tenancy ought to go on, and there is nothing explicitly made plain—and I appeal to the lawyers here—whether it is implicitly beyond doubt that what that involves is judging if the alternative use is in the public interest, which is the basis on which the whole discussion has been conducted.
§ Mr. Janner
I am sorry I have to intervene, because I had placed my name to a separate Amendment. I did not add my name to the Amendment of the hon. and learned Member for Northants, South (Mr. Manningham-Buller). If I had seen his Amendment beforehand I would have wanted to see what were the reasons which prompted him in putting it forward. My reasons were entirely different, and I think it important that the Committee should know what they are. In the first place, the Scottish Act, which has been referred to from time to time as being a model which we should follow, does not contain this Clause. It does not contain the Clause for very good 1479 reasons; first, because it obviously was not necessary and its omission has never worked any hardship, but secondly, because the Clause in the Bill covers the points the Attorney-General wants to cover.
Apart entirely from the two points made by the hon. and learned Member for Wirral (Mr. Selwyn Lloyd), what has been overlooked in this debate is the fact that there is a paragraph (e) which states,that having regard to all the circumstances of the case greater hardship would be caused by ordering the grant of a new tenancy than by refusing to do so.Whoever takes this matter into consideration must realise that that is sufficient to cover every point that has been made in the course of this debate. If the public authority really needs the premises, and if it offers alternative accommodation, there is an end to the matter. If it really needs the premises, greater hardship would be caused should there be a refusal to grant the termination of the tenancy; obviously, therefore, this paragraph (e) covers the case. I think it is ridiculous to introduce on this Measure at the present time, the argument about local authorities not being entitled to possession if there is a real need to have the tenancy of a place. On the other hand, to put on the county court judge a further onus, when he can decide the matter on the question of hardship already, is not necessary. I believe the reasons I have given are reasons which should induce the Government to abide by the method adopted in the Scottish Act and leave out this paragraph.
§ The Attorney-General
I do hope the Committee will feel able to come to a decision on this matter now. We did have an understanding through the usual channels that if we had a suspension of only one hour it was likely that we would get the Bill. In saying that, I am appealing
§ to my hon. Friends as well as to other hon. Members. I am not attempting to assess which has spoken more—I have not been here the whole of the time. But this is an important Bill and it is desirable that it should be obtained as quickly as possible. There was that understanding on both sides of the Committee, that we would finish by 11 o'clock. The chances of that seem to be growing more and more remote.
§ I would only add one comment to the hon. Member for Carlton (Mr. Pick-thorn). He put to me that I used the expression that the county court judge would no doubt have in mind the Minister's plans. The onus would be on the public authority, seeking to make a case, if it thinks the Minister's plans are relevant, to establish the Minister's plans in court. I do not think there is anything very much in the second point put by the hon. Member. The county court judge will have to try to balance the interests of renewing the tenancy on the one hand and the public interest on the alternative proposals of the local authority or the public authority on the other and so have to decide which is in the public interest.
§ Mr. Pickthorn
The right hon. and learned Gentleman has been kind enough to answer me directly. Then it does mean that the county court judge will not have the development plans in his mind unless the local authority puts them there?
§ The Attorney-General
Certainly the county court judge—and this is one of the advantages of procedure of this kind of temporary legislation—will have to decide on the evidence.
§ Question put, "That the words proposed to be left out stand part of the Clause."
§ The Committee divided: Ayes, 164; Noes, 141.1483
|Division No. 27.]||AYES||[10.11 p.m.|
|Adams, Richard||Boardman, H.||Burton, Miss E.|
|Ayles, W. H.||Bottomley, A. G.||Butler, H. W. (Hackney, S.)|
|Bacon, Miss A||Bowden, H. W.||Champion, A. J.|
|Balfour, A||Braddock, Mrs. E. M.||Clunie, J.|
|Barnes, Rt. Hon. A. J.||Brockway, A Fenner||Cocks, F. S|
|Hartley, P||Brook, D. (Halifax)||Coldrick, W|
|Benn, Hon. A N. Wedgwood||Brooks, T J. (Normanton)||Collick, P.|
|Benson, G||Broughton, Dr A. D. D||Collindridge, F.|
|Beswick, F||Brown, George (Belper)||Cooper, G. (Middlesbrough, W.)|
|Blenkinsop, A||Brown, T. J. (Ince)||Corbet, Mrs. F. K. (Peckham)|
|Blyton, W. R.||Burke. W A||Cove, W G|
|Craddock, George (Bradford, S.)||Isaacs, Rt. Hon. G. A||Robens, A.|
|Crosland, C, A. R||Jeger, Dr S. W (St. Pancras, S.)||Roberts, Goronwy (Caernarvonshire)|
|Cullen, Mrs. A.||Jones, D. T. (Hartlepool)||Robinson, Kenneth (St. Pancras, N.)|
|Darling, G. (Hillsboro')||Jones, William Elwyn (Conway)||Ross, William (Kilmarnock)|
|Davies, A. Edward (Stoke, N.)||Keenan, W||Royle, C.|
|Davies, Harold (Leek)||King, H. M.||Shackleton, E. A. A.|
|Davies, S O. (Merthyr)||Lee, F. (Newton)||Shawcross, Rt. Hon. Sir H|
|de Freitas, Geoffrey||Lindgren, G. S||Silverman, J. (Erdington)|
|Deer, G.||MacColl, J. E.||Simmons, C. J|
|Delargy, H, J||McInnes, J||Slater, J.|
|Donnelly, D.||McKay, J. (Wallsend)||Smith, Ellis (Stoke, S.)|
|Driberg, T E. N.||McLeavy, F.||Sorensen, R, W.|
|Dye, S.||MacPherson, Malcolm (Stirling)||Soskice, Rt. Hon. Sir F|
|Ede. Rt. Hon. J. C.||Mallalieu, J P. W. (Huddersfield, E.)||Sparks, J A.|
|Edwards, W. J (Stepney)||Manuel, A C.||Stewart, Michael (Fulham, E.)|
|Ewart, R.||Marquand, Rt. Hon. H. A||Stross, Dr. B.|
|Fernyhough, E.||Mathers, Rt Hon. George||Taylor, H. B. (Mansfield)|
|Finch, H. J.||Messer, F||Taylor, R. J. (Morpeth)|
|Fletcher, E. G. M. (Islington, E.)||Middleton, Mrs. L||Thomas, D. E. (Aberdare)|
|Follick, M.||Mikardo, Ian||Thomas, I. O. (Wrekin)|
|Fraser, T (Hamilton)||Mitchison, G. R||Thomas, I. R. (Rhondda, W)|
|Gibson, C. W||Moeran, E. W||Thurtle, Ernest|
|Gilzean, A.||Monslow, W.||Tomlinson, Rt. Hon G|
|Greenwood, Anthony W J (Rossendale)||Moody, A. S.||Tomney, F.|
|Grenfell, D. R.||Morgan, Dr. H. B.||Turner-Samuels, M|
|Grey, C. F||Morrison, Rt Hon. H. (Lewisham, S.)||Ungoed-Thomas, A. L|
|Griffiths, D (Rother Valley)||Mort, D. L.||Wallace, H. W.|
|Griffiths, Rt. Hon. J. (Llanelly)||Moyle, A.||Weitzman, D.|
|Hale, Leslie (Oldham, W.)||Mulley, F W.||West, D. G.|
|Hall, J (Gateshead, W.)||Neal, H.||Wheatley, Rt. Hn. John (Edinb'gh, E.)|
|Hall, Rt. Hn W. Glenvil (Colne V'll'y)||Noel-Baker, Rt. Hon. P J||Wilkins, W. A.|
|Hardy, E. A.||Oliver, G. H.||Willey, F T (Sunderland)|
|Hargreaves, A.||Orbach, M||Williams, D. J. (Neath)|
|Harrison, J.||Padley, W. E||Williams, Rev. Llywelyn (Abertillery)|
|Hastings, Dr. Somerville||Paget, R. T||Williams, Ronald (Wigan)|
|Hayman, F. H,||Parker, J.||Williams, W. T. (Hammersmith, S.)|
|Herbison, Miss M||Pearson, A||Wilson, Rt. Hon. J. H. (Huyton)|
|Holman, P||Porter, G.||Winterbottom, I. (Nottingham, C.)|
|Houghton, Douglas||Price, M, Philips (Gloucestershire, W.)||Winterbottom, R. E. (Bright[...]de)|
|Hoy, J.||Proctor, W. T.||Wise, Major F J|
|Hudson, J. H. (Ealing, N.)||Rees, Mrs. D.||Woodburn, Rt. Hon. A|
|Hughes, Hector (Aberdeen, N.)||Reid, T. (Swindon)|
|Hynd, H (Accrington)||Reid, W. (Camlachie)||TELLERS FOR THE AYES:|
|Hynd, J B. (Altercliffe)||Rhodes, H.||Mr. Popplewell and Mr. Hannan.|
|Irvine, A. J. (Edge Hill)||Richards, R|
|Alport, C. J. M||Darling, Sir W. Y. (Edinburgh, S.)||Joynson-Hicks, Hon. L. W.|
|Amory, D. Heathcoat (Tiverton)||de Chair, S.||Kingsmill, Lt.-Col. W. H.|
|Arbuthnot, John||Deedes, W. F.||Lambert, Hon. G.|
|Ashton, H. (Chelmsford)||Digby, S. Wingfield||Legge-Bourke, Maj. E. A. H|
|Assheton, Rt. Hon. R. (Blackburn, W.)||Drewe, C.||Linstead, H. N.|
|Baker, P.||Dugdale, Maj. Sir T. (Richmond)||Lloyd, Selwyn (Wirral)|
|Baldock, J M||Duncan, Capt. J A. L||Lucas-Tooth, Sir H.|
|Baldwin, A E.||Duthie W S.||McCorquodale, Rt. Hon. M. S|
|Banks, Col. C||Eden, Rt. Hon. A||Mackeson, Brig. H R|
|Baxter, A. B.||Fisher, Nigel||McKibbin, A.|
|Beamish, Maj. T. V. H.||Fort, R.||McKie, J. H. (Galloway)|
|Bell, R. M.||Foster, J. G.||Maclay, Hon. J. S.|
|Bennett, Sir p. (Edgbaston)||Fraser, Sir I. (Lonsdale)||MacLeod, Iain (Enfield, W.)|
|Birch, Nigel||Fyfe, Rt. Hon. Sir D. P I||Macpherson, N. (Dumfries)|
|Bishop, F. P.||Gage, C. H||Maitland, Comdr. J. W|
|Black, C. W.||Galbraith, T. G. D (Hillhead)||Manningham-Buller, R. E|
|Boles, Lt.-Col. D. C (Wells)||Garner-Evans, E, H. (Denbigh)||Marshall, D. (Bodmin)|
|Boothby, R.||Gates, Maj. E. E.||Maude, J. C. (Exeter)|
|Bossom, A. C.||Grimston, R. V. (Westbury)||Medlicott, Brigadier F|
|Boyd-Carpenter, J. A||Harvey, Air-Codre. A. V. (Macclesfield)||Mellor, Sir J.|
|Boyle, Sir Edward||Hay, John||Molson A. H. E.|
|Braine, B.||Headlam, Lieut.-Col. Rt. Hon Sir C||Morrison, Rt. Hon. W. S (Cirencester)|
|Braithwaite, Lt.-Comdr. J. G||Heald, L F.||Nutting, Anthony|
|Bromley-Davenport, Lt.-Col YV||Heath, E. R||Oakshott, H. D.|
|Brooke, H. (Hampstead)||Hicks-Beach, Maj. W. W||Ormsby-Gore, Hon. W D|
|Buchan-Hepburn, P. G. T.||Higgs, J M. C||Pickthorn, K.|
|Burden, Squadron-Leader F, A.||Hill, Mrs. E. (Wythemhawe)||Powell, J. Enoch|
|Butler, Rt. Hon. R. A. (S'ffr'n W'ld'n)||Hill, Dr. C. (Luton)||Profumo, J. D.|
|Channon, H.||Holmes, Sir J Stanley (Harwich)||Raikes, H. V.|
|Clarke, Col. R. S. (East Grinstead)||Hornsby-Smith, Miss P.||Redmayne, M.|
|Clarke, Brig. T. H. (Portsmouth, W)||Hudson, Sir Austin (Lewisham, N.)||Renton, D. L. M|
|Colegale, A.||Hurd, A. R.||Robinson, J. Roland (Blackpool, S.)|
|Craddock, G. B. (Spefthorne)||Hutchinson, Geoffrey (Ilford, N.)||Rodgers, John (Sevenoaks)|
|Cranborne, Viscount||Hylton-Foster, H. B||Roper, Sir H.|
|Crosthwaite-Eyre, Col 0 E||Jeffreys, General Sir G.||Ropner, Col L.|
|Crouch, R F.||Johnson, Howard S (Kemptown)||Ross, Sir R. D. (Londonderry)|
|Russell, R. S.||Sutcliffe, H.||Ward, Miss I. (Tynemouth)|
|Scott, Donald||Teeling, William||Waterhouse, Capt. Rt. Hon C|
|Shepherd, W. S. (Cheadle)||Thompson, R. H. M. (Croydon, W.)||Watkinson, M.|
|Smith, E. Martin (Grantham)||Tilney, John||Wheatley, Major M. J. (Poole)|
|Smithers, Peter (Winchester)||Touche, G. C.||While, J. Baker (Canterbury)|
|Spens, Sir P. (Kensington, S.)||Turton, R. H.||Wills, G.|
|Stanley, Capt. Hon. R. (N. Fylde)||Tweedsmuir, Lady||Wilson, Geoffrey (Truro)|
|Stevens, G. P.||Vaughan-Morgan, J. K.||Winterton, Rt. Hon. Earl|
|Steward, W A. (Woolwich, W.)||Wakefield, E. B. (Derbyshire, W.)||Wood, Hon. R.|
|Storey, S.||Wakefield, Sir W. W. (St. Marylebone)|
|Strauss, Henry (Norwich, S.)||Walker-Smith, D. C.||TELLERS FOR THE NOES:|
|Studholme, H. G.||Ward, Hon, G. R. (Worcester)||Major Conant and Mr. Vosper.|
§ Mrs. Corbet (Camberwell, Peckham)
I beg to move, in page 10, line 3, at the end, to insert:(4) Where at the commencement of this Act any authority is empowered by any enactment or order to purchase compulsorily any land specifically described in that enactment or order or is empowered by an authorisation given under section two of the Acquisition of Land (Authorisation Procedure) Act, 1946, to take possession of any land, there shall, for the purposes of the last foregoing subsection, be deemed, during a period of six months from the commencement of this Act or during such period as the authority remains so empowered as aforesaid (whichever period first expires), to be subsisting in that land an interest belonging to that authority.The Committee have decided to retain subsection (3, d) of the Clause, and I am asking that where a local authority has power to acquire an interest, but for a certain rather limited period has not acquired that interest, there should be an extension of the privilege under this subsection. It is mainly to cover the case where an authority which has the power to purchase has gone further and has entered into an agreement, but where the legal formalities are not yet completed.
§ Mr. Walker-Smith
The Committee will want to know a good deal more about this Amendment than the hon. Lady has so far seen fit to vouchsafe to us. Her Amendment as it reads applies only to cases where, either by Private Bill procedure or by a compulsory purchase order, the local authority in question has already got power to acquire land, and I so understood the opening part of the hon. Lady's observations but I found her last sentence rather baffling when she went on to refer to cases in which the local authority had agreed to purchase but certain unspecified legal formalities had not, as yet, gone through. Her Amendment has nothing to do with purchase by agreement.
§ Mr. Walker-Smith
This confusion is, unhappily, worse confounded. The hon. 1484 Lady now agrees that her Amendment does not refer to acquisition by agreement, but she says that it is intended to do so.
§ Mr. Walker-Smith
In that case, the Committee is left with this position, if I now understand the Amendment. Where a compulsory purchase order is served, this special exemption will continue for the local authority throughout the whole of the period in which the local authority may delay before serving notice.
§ Mrs. Corbet
The Amendment states specifically:during a period of six monthsin order to deal with that.
§ Mr. Walker-Smith
By a genial process of question and answer we are arriving at the real intention behind this Amendment. It is most necessary that we should understand what is meant. I assure the hon. Lady that I approach her Amendment with the greatest of sympathy, not only because it is moved by her but for that reason among others. But if all that it is sought to do by the Amendment is, where there has been either a compulsory order or a Private Bill purchase, to keep the local authority interest in the land subsisting for six months after the beginning of the Act, and if the effect of that would be to expedite the processes of local authorities in serving notice after they have made a compulsory purchase order, I would be inclined to be a little more smpathetic towards the Amendment than I was at first sight.
§ The Solicitor-General
My hon. Friend the Member for Peckham (Mrs. Corbet) has explained the purpose of this Amendment which we think would improve the Bill. I do not think that I can add anything to what she has said, and I have pleasure in accepting the Amendment.
§ Amendment agreed to.
§ Clause, as amended, ordered to stand part of the Bill.