HC Deb 05 February 1951 vol 483 cc1347-52

Amendment proposed, in page 4, line 31, after the word "years," to insert: and not for the time being subject to a tenancy granted for such a term."—[The Solicitor-General.]

Question again proposed, "That those words be there inserted."

3.37 p.m.

Mr. Manningham-Buller (Northants, South)

When the Committee adjourned the right hon. and learned Gentleman the Solicitor-General had just given us a short outline of the purpose behind the long series of Amendments to the Clause and I was making a few general observations with regard to that. I had just reached the stage in my remarks at which I was inviting the right hon. and learned Gentleman to have a look again at the proviso that we had drafted to the Amendment to Clause 1, because it seemed to me, judging from his statement, that that proviso really covered the whole ground covered by this lengthy and complicated Clause.

As I understand it, the effect of the Government's Amendments is to turn the Clause right round, making it quite different in character from what it was originally. "Sub-tenancies" are now not so much referred to as "superior tenancies." As I said to the right hon. and learned Gentleman, so far as we can understand the Clause, we are in agreement with the intention that lies behind it, and, therefore, I shall advise my hon. Friends not to move the Amendments which we have tabled to the Clause but to hear the explanation of the right hon. and learned Gentleman of the point which each Amendment covers and then consider the Clause again in the light of his explanation to us.

It may then be that we shall table certain Amendments to try to effect improvements during the Report stage. I hope that that will be convenient for the Committee and that it will be understood that we shall get into a great deal of difficulty if, while the Government are trying to re-cast the Clause one way we, by our Amendments, are trying at the same time to cast it round another way. It seems convenient, therefore, that we should deal solely with the Government's Amendments on the Clause in the Committee stage and then if need be move Amendments which we wish to move on the Report stage.

The Solicitor-General (Sir Frank Soskice)

May I respond to that invitation as shortly as possible by saying that all the Amendments, the first of which in the series I moved when we last sat, are designed simply for the purpose of rearranging and carrying out certain consequential Amendments to the Clause made necessary by the main and substantive Amendment to Clause 5, page 5, line 35, namely, to leave out from "of," to end of line 36, and insert: a sub-tenancy created immediately out of the superior tenancy, being a sub-tenancy lawfully so created, or (b) arising from ownership of a sub-tenancy created (immediately or derivatively) out of such a sub-tenancy as is mentioned in the last foregoing paragraph, or (c) arising, after the coming to an end of any sub-tenancy specified in the two last foregoing paragraphs. I have already explained that our general object is to include what I may describe as a sub-sub-tenancy of a sub-tenant himself not in occupation. If hon. Members will look at subsection (5), they will see that it read originally: References in this section to a right of occupation derived from a sub-tenancy are references to a right of occupation— (a) arising from ownership of the sub-tenancy,". The effect of that was, as explained previously, to link that to the top sub-tenancy in the chain. We have now altered that by adding new paragraphs (b) and (c).

If I may dispose at once of paragraph (c), it refers simply to statutory tenants. In other words paragraph (c) would now read: arising, after the coming to an end of any sub-tenancy specified in the two last foregoing paragraphs from the operation of the Rent and Mortgage Interest (Restrictions) Acts … those last words being in the Clause as it stands at present.

So, if hon. Members will disregard paragraph (a), which reproduces the original paragraphs (a), and (c) to which I have just alluded, they will see that the substantive new addition, paragraph (b) reads: arising from ownership of a sub-tenancy created (immediately or derivatively) out of such a sub-tenancy as is mentioned in the last foregoing paragraph, What I mean by saying that that is really an Amendment of substance is this: that the new paragraph (b) is designed to bring in the lower links in the chain of sub-tenancies. Once that substantive Amendment is made, various consequential Amendments were thought to be useful, simply for the purpose of clarifying the Clause and making it easier to read and understand. Perhaps I should make an exception in the case of the Amendment to Clause 5, page 5, line 4, namely: Provided that where the superior tenancy comes to an end by surrender or merger nothing in this subsection shall be construed as requiring a sub-tenancy created (immediately or derivatively) out of the superior tenancy to he treated as coming to an end before it would have come to an end if this section had not been passed. This is to remedy a purely technical defect which might otherwise exist in the Clause, but that is incidental to the main object which I am seeking to achieve by this series of Amendments.

Mr. Manningham-Buller

Again I am grateful to the right hon. and learned Gentleman for his explanation of the general purpose and of what is the main alteration of substance, apart from form, made in this Clause. At the same time, everything he has said strengthens my view that we sought to do the same thing in one simple provision. I would ask the right hon. and learned Gentleman to give full consideration to that, instead of going through this long chain of tenants, sub-tenants and sub-sub-tenants as he purports to do. Instead of doing that, we could provide merely that a tenant shall have the protection, for it is the tenancy of a dwelling-house which is meant to be covered. I do not ask the right hon. and learned Gentleman to reply now. It would be much better to let him make his Amendments to this Clause and not spend time discussing them. However, I impress seriously upon him the point that all this can be done in a far less cumbrous fashion.

3.45 p.m.

The Solicitor-General

I had intended to say a word about the proviso of the hon. and learned Gentleman. We considered it but thought that it did not really achieve the purpose. May I indicate one of the various reasons which rests upon the words "who retains possession by virtue of this Section"? Those words seemed to us to bring in the very defect which we are seeking to eliminate, in that it limits the application of the proviso to the tenant of the ground lessee.

There are other objections. For example, there is an objection to the expression "dwelling-house" to which this Section applies. This presumably must mean a dwelling-house which is the subject of a ground lease extended by Clause 1. The ground lessee or his family must be in occupation of at least part of the dwelling-house for Clause 1 to apply the proviso therefore misses the very common case where the whole property is occupied by the sub-tenant we are trying to protect by the Government's Amendment. Those are two objections to the proviso, and if we are correct in the view I have just sought to communicate, we could not achieve our object by adopting it.

Amendment agreed to.

Further Amendments made: In page 4, line 35, leave out from "person." to "or," in line 37, and insert: having a right of occupation derived from the superior tenancy.

In line 40, leave out from first "of," to "(including," in line 41, and insert: the said person and of any other person for the time being having a right of occupation derived from the superior tenancy.

In line 45, leave out from "as," to "if," in page 5, line 1, and insert: they would have been."—[The Solicitor-General.]

The Solicitor-General

I beg to move, in page 5, line 4, at the end, to insert: Provided that where the superior tenancy comes to an end by surrender or merger nothing in this subsection shall be construed as requiring a sub-tenancy created (immediately or derivatively) out of the superior tenancy to be treated as coming to an end before it would have come to an end if this section had not been passed. In effect this is a drafting Amendment. It has been suggested that the wording of the last five lines of subsection (1) of this Clause might in one specific case have the result of cutting down the rights of a subtenant. I can illustrate that in this way. Supposing A is a freeholder who has granted a ground lease to B, who has a sub-let to C. B's ground lease and C's sub-tenancy are for terms which will not expire until after the two-year period from the commencement of the Act. If during the two-year period B surrenders his ground lease to A, then under Section 139 of the 1925 Law of Property Act, C will continue as the direct tenant of A until the term of C's sub-tenancy comes to an end.

It has been suggested that a doubt arises in regard to the words: the rights and liabilities of the occupier … shall … be such rights and liabilites as the occupier … would have had if the superior tenancy had continued until the expiration of two years after the commencement of this Act … Those words might be construed as meaning that the sub-tenancy is to be treated as having been granted only for a term ending with the two-year period. If this were right, that would have the result of cutting down rights which C would otherwise have had, the assumption being that his sub-tenancy goes on until after the two-year period. We seek in this Amendment simply to remove that possible doubt.

Mr. Manningham-Buller

The Committee have received a very clear and lucid explanation from the right hon. and learned Gentleman of what the Amendment is supposed to achieve, but he lost me after the first few sentences I could not keep up with him, and from the expression on his face the right hon. and learned Gentleman was wondering very much as he was doing it whether he was not putting a foot wrong somewhere in this extraordinarily complicated provision. The only person who looked thoroughly happy was the hon. Member for Leicester, North-West (Mr. Janner), who may, perhaps, have thought that this would lead to further argument and discussion in other places.

Mr. Janner (Leicester North-West)

Whatever is the hon. and learned Member talking about?

Mr. Manningham-Buller

At any rate, we shall consider very carefully in HANSARD what the right hon. and learned Gentleman has said. I propose to make no comment whatever now, because, quite frankly, I could not follow him.

Amendment agreed to.

Further Amendments made: In page 5, line 7, after "years," insert: and not for the time being subject to a tenancy granted for such a term.

In line 11, leave out from "person," to "or," in line 13, and insert: having a right of occupation derived from the superior tenancy.

In line 20, leave out "former occupier," and insert: person who had the said right.

In line 24, leave out subsection (3).

In line 31, leave out from "person." to end of line 32, and insert: not having a right of occupation derived from the superior tenancy.

In line 34, leave out "a sub-tenancy," and insert "the superior tenancy."

In line 35, leave out from "of," to end of line 36, and insert: a sub-tenancy created immediately out of the superior tenancy, being a sub-tenancy lawfully so created, or (b) arising from ownership of a sub-tenancy created (immediately or derivatively) out of such a sub-tenancy as is mentioned in the last foregoing paragraph, or (c) arising, after the coming to an end of any sub-tenancy specified in the two last foregoing paragraphs.

In page 5, leave out lines 42 to 47.—[The Solicitor-General.]

Clause, as amended, ordered to stand part of the Bill.