Clause 8.—(RENEWAL OF TENANCIES OF SHOPS.) (Hansard, 5 February 1951)

§ The Chairman
The next Amendment is that of the hon. and learned Member for Northants, South (Mr. Manningham-Buller) in page 7, line 21.

§ Mr. Ungoed-Thomas (Leicester, North-East)
Are you not, Major Milner, calling the Amendment which appears in my name (in page 7, line 12, to leave out 1354 "a shop," and insert "business premises.") and those in the names of my hon. Friends, which appear before the one you have just called?

§ The Chairman
I am afraid not. I have had to rule the hon. and learned Member's Amendment out of order on the ground that it goes beyond the scope of the Bill.

§ Mr. Ungoed-Thomas
May I say with great respect that this raises a matter of considerable importance, as you will appreciate, Sir? It raises the question of whether the Bill is to be severely limited to shops or whether it is not. Various Amendments have been put down on this point. It is a matter which has aroused a great deal of public concern, and the Government's view of restricting it to shops is not supported by any recommendation in any report. I hope that it will be possible to consider the merits of my submission.

§ Mr. Manningham-Buller
Further to that point of order. Can a Member engage in a debate with the Chair after the Chair has announced its decision, as to the Amendments which are selected?

§ The Chairman
I allowed the hon. and learned Member a certain latitude, but it is not competent for him to argue the point. I have ruled that those Amendments, however important and however desirable or undesirable they may be, are not within the scope of the Bill. The fact that recommendations have or have not been made in any report does not affect the matter in any way.

§ Mr. Janner
It seems to me, with respect, that the various Amendments deal directly with the purpose of the Bill and also with the definition of the word "shop." May I ask, with the greatest respect, whether a shop—

§ The Chairman
I cannot allow the hon. Member to argue the matter in any respect.

§ Mr. Janner
If I may say so—

§ The Chairman
The only question is as to the grounds on which I ruled the matter out of order. I have so ruled it, and it is not capable of further argument.

§ Mr. Ungoed-Thomas
I am, of course, accepting your Ruling on these Amend- 1355 ments, Major Milner, but may I ask further to the point of order which my hon. Friend has raised regarding the meaning of "shops" within the Bill, whether it will be in order to raise the Amendment which I have put down in page 13, line 5, of Clause 17, leave out from "purposes," to end of line 7, which affects the definition of the word "shop"?

§ The Chairman
We shall have to look at that Amendment when we come to it. I cannot anticipate what view I may then take.

§ Mr. Derek Walker-Smith (Hertford)
I beg to move, in page 7, line 21, after "Act" to insert: and where on the date on which the expiring tenancy would so come to an end the occupier would have carried on business in the shop for at least three years immediately preceding such date. When, before the week-end, I was asked to undertake to move the Amendment, I made a note upon it which starts "pleasantly uncomplicated." That, of course, in regard to this Bill, is a relative matter and I have no doubt that the ingenuity of some of the hon. and learned Members opposite will seek to make what I have apprehended to be pleasantly uncomplicated a little more complicated than may at first sight appear.
The Amendment speaks for itself, but that probably will not prevent others speaking for or against it. It is based on the simple and, I hope, acceptable principle that what might be termed an uncovenanted benefit in the shape of an extension of a business tenancy beyond the contemplation of the lease, should only arise in the case of tenants with a reasonable minimum period of occupation. In putting forward that principle, I think that hon. Members will appreciate that we have now passed to the second part of the Bill—namely, that concerned with shop premises—and that a good many of the considerations and arguments adduced in respect of Part I, which deals with residential premises, are less material and less strong in regard to this part of the Bill.
Shopkeepers are business people and, therefore, may be presumed to have some attachment to what the hon. Member for Leicester, North-West (Mr. Janner), considers the somewhat flyblown doctrine of sanctity of contract.

§ Mr. Janner
Oh !

§ Mr. Walker-Smith
The hon. Member expressed himself in rather strong terms about the doctrine of the sanctity of contract, but whatever relevance that may have to this matter, it may be expected that shopkeepers should have a decent respect for the sanctity of contract. Whatever force the sort of considerations so plentifully advanced in regard to Part I of the Bill by hon. Members opposite to the effect that tenants have entered into obligations without realising their full implications may have in regard to residential tenants, is far less in the case of the shopkeeper tenants with whom this part of the Bill is concerned. They are not in a position, I imagine, of being able to say, nor of seeking to say, that they did not know what in effect they were bargaining for when they entered into the lease.
That being so, I hope it will seem to the Committee that if this statutory protection is to be given in the case of shop tenancies that it will be given only to those with this reasonable minimum period of occupation. If the principle is right, it falls to the Committee to consider whether a period of three years specified in this Amendment is an appropriate period. As the Committee are aware, subsection (I) of Section 4 of the Landlord and Tenant Act, 1927, deals with business premises and specifies a minimum period of five years for the carrying on of business at premises before a claim can be established for compensation for loss of goodwill or for a new lease. In my submission, the period of five years, although it is the period in that Section of the Landlord and Tenant Act, 1927, would be too long for the period which the Committee should establish under this Bill.
There are three reasons why that is so. The first is that in the Bill with which we are concerned the rent of a new tenancy is not, as is the case in the Landlord and Tenant Act, dependent on goodwill. Secondly, the period of five years for the purposes of the Landlord and Tenant Act includes the carrying on of business by successors in title at those premises. Thirdly, if a period of five years were prescribed in this Bill, it might operate harshly against ex-Service men shopkeepers who have established them- 1357 selves in those tenancies since the war, but, by taking a period of three years it would seem not to have that unwelcome effect because the three years would date back to a time by which I imagine ex-Service men have normally established themselves in the tenancies from which they now operate their businesses.
Therefore, I submit that three years is the right qualifying period for the operation of this Clause. In support of the three-year period I would refer the Committee to subsection (1, a) of Section 2 of the Landlord and Tenant Act, which enacts that there should be no entitlement to compensation in respect of improvements made less than three years before the termination of the tenancy. In other words, that Act is regarding the last three years of a shop tenancy as being what, in the unlovely language of this debate, has been referred to as a fag-end of a lease.
This Amendment would secure the full benefits of this part of the Bill to those shopkeeper tenants with more than fag-end occupation. I ask the Committee to give favourable consideration to this as being reasonable both to the tenant and to the reversioner. The landlord has certain rights under subsection (3) of Clause 10 of the Bill, but a landlord should not be required to go to court to establish these things where they are applicable in cases of very short tenancies, where there is not any prima facie case for this extension by way of statutory protection. I therefore commend the Amendment as one which would bring to shopkeepers with a reasonable period of occupation the full protection of the Bill, but prevent an extension by way of statutory protection to people who have only just gone into their tenancies.

§ Mr. Janner
I hope my right hon. and learned Friend will not accept the suggestion made in this Amendment. In spite of the fact that the hon. Member for Hertford (Mr. Walker-Smith) refers to the sanctity of contract, sanctity of human life and sanctity of existence is perhaps a little more important than the sanctity of imperfect contracts—

§ Mr. Walker-Smith
And of business?

§ Mr. Janner
Sometimes business means the man's livelihood, and these matters are being dealt with in that spirit. I hope that now we will forget about these terms 1358 because, as a lawyer, the hon. Member knows very well that there are innumerable contracts, the sanctity of which is interfered with by legislation. Let us forget that and talk about the reasonableness of the present position and see whether we can deal with this matter on those lines.
The purpose of the protection given by the bill is perfectly clear, that a shopkeeper shall not be deprived of his livelihood in consequence of the fact that his tenancy when it comes to an end is not extended by an unreasonable landlord. There are many landlords sufficiently reasonable to understand that when a man has built up a business, whether in three months, six months or three years, he is entitled to the benefit of that which he has created. Very often the goodwill of a business is created in one place by an energetic person in a matter of months, whereas it might take another person years to establish that same goodwill, and there are many ex-Service men involved who have not taken over businesses three years ago, but, on the contrary, have obtained them only recently, possibly a year ago or six months ago.
In many cases landlords say they will allow a tenant to continue without entering any contractual obligation to do so and when they see that a business is successful they are able to sell the premises with the advantage of the business which has been created. They are not prepared to grant an extension of the tenancy to the tenant in consequence of the benefits created by the tenant. I am sorry to hear anyone who practises the law quote the Landlord and Tenant Act, 1927, as being something which ought to be followed in any subsequent legislation.

§ Mr. Walker-Smith
If the hon. Member had listened a little more carefully he would recall that the greater part of my speech was devoted to saying that the Amendment differed from the provisions of the 1927 Act.

§ Mr. Janner
That of course is understandable. But the hon. Member would have to sidestep the issue, because he knows very well that the Landlord and Tenant Act, 1927, is one Act which has brought a less amount of protection to business people than any other Act on the Statute Book. It certainly in no way fulfils what is the legitimate and 1359 moral right that a businessman should have in the protection of his premises and his livelihood. Therefore the question of five years compensation, that silly, laborious method adopted in order to get extended leases under the 1927 Act, is something to be deprecated by all people who understand the case at all. As for the three years, that is, in my opinion, and in the opinion of anyone who is prepared to understand the grievances of small shopkeepers, something which ought not to be followed.
There is already a precedent with regard to the helping of small shopkeepers, an Act on the Statute Book in respect of Scotland, which indicates how important it is that the position of the small shopkeeper, which does not call for a shortened period, should be protected. That Act has worked very successfully and has been continued from year to year. It says nothing at all about five years and I ask the Committee not to be niggardly about this thing. The small shopkeeper must be protected.
Our interventions are made in order to amend this Act for the protection of tenants. That is why we speak, and not for the purpose of reducing any of the advantages or rights that would have been given to tenants. We feel very strongly about this, and if we on these benches can help our own Government in any way to extend further the provisions of what is a very good Act, so far as it goes, we shall certainly do so. It would be a very bad thing if we placed a limit of three years on the possession of the shop.

§ Mr. J. Enoch Powell (Wolverhampton, South-West)
My hon. Friend the Member for Hertford (Mr. Walker-Smith) has drawn the attention of the Committee to the fact that the Amendment he moved implements the majority recommendation of the Leasehold Committee in this respect. There is a further ground for the adoption of this Amendment, which follows from the argument used by the Government on the Second Reading of this Bill. They insisted that Part II of the Bill should be restricted in its operation to the tenancy of shops, because in the case of shops, and not in the case of other premises which they proposed to exclude, there was an element of good will. It was upon that ground that the long Title of this Bill was drawn in such a way as 1360 to preclude the Committee from discussing whether further tenancies should be brought within its ambit.
If that is the reason why protection should be accorded only to tenancies of shops, then it follows necessarily that it should only be accorded where there is reasonable presumption that goodwill does adhere. Whether the correct minimum period for adherence of goodwill be three years or some other term, it must be admitted that some minimum length of tenure should be written into the Bill in order that the pre-condition of adhering goodwill should be created. That is one of the grounds on which it seems to me that the Government cannot logically decline to include in the Bill a qualifying period of tenure.
4.15 p.m.
It is true that in the Interim Report—I am referring to paragraph 70—there was a recommendation against the inclusion of a qualifying period. But the reason there given does not apply to the Bill before us. The reason was that any such limitation would invite those landlords whose action it is sought to control to grant short tenancies falling outside the ambit of the scheme. That however could not apply in the case of a Bill which affords protection only to tenancies falling in within the next two years, and in any case, affords an extension only for one year at a time. So I think the fact that the Interim Report was against a qualifying period should not deter the Committee from following the recommendations of the majority Final Report.
Finally there is the overriding reason which applies to protection granted under Part I as well as under Part II. The fundamental reason for giving protection in the form of a right of renewal is that the tenancy expires in conditions different from those which its owner had reason to expect when he entered upon it. If the owner acquired a tenancy a year or 18 months ago knowing it would run out in two or three years time—

§ Mr. Janner
That is not quite right, because time after time hon. Members, including myself, have asked questions about the extension of these tenant terms and have been given the answer, "As soon as we get reports this matter will be dealt with." So everybody had the right 1361 to believe that there would be an extension.

§ Mr. Powell
Well, if that argument were pursued, it would lead us very far. It would mean that persons, when entering into contracts have the duty to consider not merely the law, but remarks made inside or outside this House, officially or unofficially, by the supporters of any party; and that is an intolerable position.
A person entering into a contract has no right or duty to look beyond the state of the law at the time when he does so. At that time, a year or two years ago, when a person bought a tenancy due to expire in 1951 or 1952, he could have been under no misapprehension as to the conditions upon expiry. The conditions of scarcity which existed when he acquired a tenancy, which was to run for one, two or three years, were no different from the conditions of scarcity existing today. So we should not push the protection given by this Bill any further than to cover owners of tenancies who find themselves, upon the expiry of their tenancies, in conditions which they could not reasonably have looked forward to.
It may be argued that the period of three years is too short for this purpose. But there has been in those three years a deterioration in our prospects, an increase rather than a diminution of scarcity. I suggest therefore that the period of three years is, upon balance, a fair qualifying period and should be insisted upon before a tenancy comes within the ambit of Part II of the Bill.

§ Mr. Weitzman (Stoke Newington and Hackney, North)
To put a limitation of three years on the application of this Clause is to put a completely artificial time-limit upon it. The answer to the necessity for any amendment like that is contained in Clause 10, which states: Subject to the provisions of this section, on an application under this Part of this Act duly made the court may, if in all the circumstances of the case appears reasonable.… Thus, the court has and will have in mind any circumstances that may arise, including the period of occupation by the tenant, as to whether or not the application ought to be granted. Accordingly, I suggest that this Amendment is completely unnecessary and entirely unreasonable.

§ Mr. Manningham-Buller
The hon. Member for Stoke Newington and Hackney, North (Mr. Weitzman) is obviously in favour of increased litigation. All he is saying is that the Amendment is quite undesirable because in every case in which an application is made by someone who has had less than a three years' occupation the court will say that it would be unreasonable to carry on the tenancy. If the hon. Member did not mean that, his speech meant nothing. He has not, so far as I can see, applied his mind to this question. His observations completely conflict with the Final Report of the majority of the Leasehold Committee.
I turn at once to the extraordinary speech of the hon. Member for Leicester, North-West (Mr. Janner)—that is what I think it was, and I shall give the reasons why. The hon. Member began his speech by referring to the sanctity of human life as though life was endangered by these business contracts. It then became apparent that what he really meant was livelihood, which is quite a different matter. The hon. Member always tries to brush on one side a fact which cannot be brushed on one side in considering these matters—that what it is being sought to do here is to break and interfere with a contract which has been entered into. That should only be done when very strong grounds indeed exist. Every action under this Bill is an interference with the sanctity of contract.
It is all very well for the hon. Member to say "Do not let us be niggardly about this," because the party opposite is never niggardly with other people's interests and rights. He made a most astonishing speech. What has to be considered here is not only the existing shopkeepers but also a category to which the hon. Member has obviously not applied his mind at all, the class of would-be shopkeepers. The hon. Member has not applied his mind to that aspect.

§ Mr. Janner
Yes, I have.

§ Mr. Manningham-Buller
In resisting this Amendment, which was so eloquently and ably moved by my hon. Friend, the hon. Member said that, after all, these people were led to believe, because of answers he obtained in this House, that although they had taken leases for a year those leases would be extended before expiry. That is going rather far when 1363 one bears in mind that the Interim Report was published in June, 1949, and no action was taken by the Government.
The case for this Amendment is a very sound one. If one bears in mind the interests not only of existing shopkeepers but of those who wish to become shopkeepers, a balance has to be struck between the two. Those who have had less than three years' occupation of a shop will not normally have acquired much in the way of good will.

§ Mr. Gibson (Clapham)
Oh, yes.

§ Mr. Manningham-Buller
Normally the answer is "No." This Amendment is intended to apply not only to those who have themselves occupied a shop carrying on that particular business but also those whose predecessors in title have carried on the same business. The Amendment is meant to provide that but I do not think it is perfectly drafted. I hope that the right hon. and learned Gentleman will not seek to take advantage of this drafting point. It has not been easy for us to draft Amendments to this Bill. It is our view that the protection given by Clause 8 should apply to those who have occupied their premises for three years or more, or whose predecessors in title have carried on the same business, so that there is continuity of succession.
What is surely wrong and to the disadvantage of any would be shopkeeper is that this protection should be given to a man who buys a lease just before it expires. That is granting a great advantage to the man who has financial resources or who can raise resources over the man who wishes to start in business, the new entrant. That is the balance to which regard must be had. It is no argument for the hon. Member for Stoke Newington and Hackney, North, to say "Leave it to the county court and the lawyers, they will sort it out somehow."

§ Mr. Turner-Samuels (Gloucester)
I agree with what the hon. and learned Member says in that if this were a permanent Measure one would have to give careful regard to some period of probation, as it were. But is not the point here, which shows the difficulty of this Bill, that it is a temporary Measure; it 1364 is only for a period of 12 months or perhaps two years during which this concession or extension is to last? The point appears to be that we are to leave everything as we find it. It is not a question of investigating merits or considering questions of good will or anything of that kind. I agree that if it were quite a lot might and should be said for the Amendment. I think that some period must be taken into account, but that is not the principle which underlies this Bill.

§ Mr. Manningham-Buller
That was a lengthy interruption which almost became a speech, not that I objected because the hon. and learned Member has shown that he has gone some way with me in the argument I am advancing. But I am surprised that a man of his intelligence and legal acumen should be led astray by the argument which is so frequently advanced in our debates on this Bill, that this is a purely standstill Measure. Of course it is not. In Part I there is a great alteration in rights. Does the hon. and learned Member realise the effect of that? Suppose a permanent Measure is introduced later containing a three-year period of occupation, the effect of this Bill not containing a provision about a three-year occupation will be to create a vested interest in respect of those who have just acquired the leases. I think that the hon. and learned Member would agree with me that on grounds of equity that would he wrong.
If we are to preserve the position until the final Measure, then the case for this Amendment is completely made out. I would remind the Committee that not only was this three-year period recommended in the Majority Report of the Committee: the report of a minority of the Committee, of which the hon. and learned Member for Leicester, North-East (Mr. Ungoed-Thomas) was one, contained the recommendation that: Purchasers of the 'fag-end' of the ground lease should he excluded, and it is suggested that the last 10 years of the ground lease would be a reasonable definition of the 'fag-end'.

§ Mr. Ungoed-Thomas
I am sure that the hon. and learned Gentleman does not mean to use recommendations entirely out of their context. I am quite certain he must appreciate that what he has quoted dealt with ground leases and has 1365 no bearing on what we are now dealing with—short period occupation of shops.

§ Mr. Manningham-Buller
I should have thought that the same principle would have been applied by the hon. and learned Gentleman. If he is in favour of the last 10 years of a ground lease being a reasonable definition of the "fag-end," I should have thought he would have been in favour of a shorter period of qualification in Clause 8.
This Amendment is in line with the recommendation of the Majority Report of the Committee. If there is to be any permanent Measure implementing that part of that recommendation that is, in our belief, necessary to preserve some opportunity for the new entrant into business, for the man who wants his shop. Our view, as I hope I have made clear, is that the Amendment is meant to cover not only the cases in which an occupier has been carrying on the business for three years but also cases in which his predecessor in title has been carrying on a business of the same character. In spite of the lengthy speech of the hon. Member for Leicester, North-West, and in spite of his saying that this is a good Bill and that he is in favour of it, I am never quite sure from the way he speaks whether he is really in favour of it or whether he has not some hidden motive lurking in the back of his mind. I fully support this Amendment.

§ The Solicitor-General
I hope that the Committee will not accept the Amendment. The hon. and learned Member for Northants, South (Mr. Manningham-Buller) intimated that it was the intention of his hon. Friends to include predecessors in title of the actual shopkeeper in occupation. In point of fact, his draft would not do anything of the sort. If a man died and his widow carried on, the widow would not be in a position, under this Amendment, to ask for a new tenancy. However, I accept that that is a matter which could be dealt with.

§ Mr. Manningham-Buller
I agree that the Amendment does not correctly convey our intentions. I hoped that I had made it clear that we intended it to cover predecessors in title.

§ The Solicitor-General
Of course, the Amendment could be changed to bring about that effect. But even assuming that one deals with the Amendment on the basis that it were so changed, we feel that there is no case for it at all. Hon. Members opposite who sought to support the Amendment have done so by a variety of arguments. The mover of the Amendment used the argument that here we have the case of a shopkeeper getting an uncovenanted benefit. The hon. and learned Member for Northants, South, went so far as to quote by analogy a part of the Report which deals with the purchase of the fag ends of ground leases.

§ Mr. Manningham-Buller
The Minority Report.

§ The Solicitor-General
The hon. and learned Gentleman quoted a part of the Report which dealt with purchase of ground leases. There is a complete and radical fundamental difference between the two situations. In the case of the ground lease, the extended tenancy is upon the rent at which the ground lessee held the premises. That is a rent which is not a rack-rent but which is less than two-thirds of the rateable value.
When one is talking about shops and dealing with Part II of the Bill, one is dealing with a situation in which the shopkeeper has a fresh tenancy at a rent which is not the low rent payable under the ground lease. In that case the rent is a reasonable rent—reasonable in the circumstances as defined by Clause 10. So that in the one case the extended tenancy is upon a low rent, and in the other it is at a rent which in the circumstances is reasonable.

§ Mr. Selwyn Lloyd (Wirral)
Surely the Solicitor-General has read the Minority Report of his hon. Friends which said that the qualifying period was one which must exist before the right of enfranchisement could exist; not merely the right to continue at the same rent.

§ The Solicitor-General
I do not see the relevance of that interjection. I am trying to point out that the two situations are entirely different. If it can be said—I do not necessarily accept it—that when the ground lease is extended one is giving the ground lessee an uncovenanted benefit, one most certainly cannot say 1367 that in the different case of a shopkeeper who only gets the tenancy on the basis of a reasonable rent. That type of argument cannot possibly be supported.
I should like to say, as my hon. Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman), said, that at the outset of this argument, on the very threshold of it, one must bear in mind that the tenancy of the shopkeeper is only renewed if it appears to the court to be reasonable in all the circumstances. So, to begin, there is an invitation to the court to exclude those cases which, whether because the lessee has been in occupation for an extremely short time or for any other reason, are cases in which it seems to be unreasonable to grant a fresh tenancy. Those are arguments which I should have thought were by the way.
The substantive objection to this proposal is that the Majority Report recommended a time limitation; but it did so only because it was talking about a long-term scheme. The requirement that the shopkeeper must have been in occupation of the shop for a minimum period of time was to preserve businesses which, because they had existed for some time, had an established value. They did that in relation to the long-term scheme which they were envisaging. Whether or not there will be some provision of that sort when we finally place upon the Statute Book the legislation which we are working out, I am not in a position to say. But, whether or not it would be right or wrong to do so in the context of a long-term scheme, we certainly think that there is no room at all for such a limitation when dealing simply with the interim period. Where we are trying to preserve the existing situation upon a standstill basis, there is every reason not to do it.
We are trying to protect the shopkeeper during this period of scarcity of shop accommodation. When we try to do that we must take into account the fact that a great many shopkeepers must have entered into occupation, very likely having much preferred to take a longer lease or longer tenancy, but being constrained to agree to a short-term tenancy for the very reason that there is the existing shortage of shop accommodation. Therefore, those people stand urgently in need of protection in this interim period.
1368 It is in order not to exclude those shopkeepers, and for the very purpose of not excluding them from the protection which this Bill is designed to confer, that we have rejected the idea of introducing any minimum time limitation during which the shopkeeper must have occupied the shop. Not only that, but if we inserted such a time limitation—say, a three-year time limitation—there would be a strong inducement on the part of the landlords of shops who found they had a tenant whose tenancy had nearly reached the three-year limitation period, to give the tenant notice and to get rid of him before that period had expired, with the object of preventing him getting the advantage which a long-term scheme might confer upon him.
It would, once more, be playing into the hands of the unscrupulous landlord. When I say that, I mean such landlords as are unscrupulous; I am not talking generically about landlords. Landlords who are unscrupulous would take the opportunity to get rid of a tenant before the three years had expired with the very object of preventing him from enjoying the protection which a long-term scheme might confer.
Therefore, I ask the Committee to reject the proposal upon the basis that it cannot be justified by any of the arguments which relate to uncovenanted benefits, because the situation is entirely different. This is a case of a new lease upon a reasonable rent—a rent reasonable in all the circumstances. I ask the Committee to reject the Amendment because, during this interim standstill period, it would withhold protection from those many shopkeepers who have had to take shops on short-term tenancies because of the existing shortage of shops. In the third place, I ask the Committee to reject the Amendment because, if there was this limitation, it would play right into the hands of those landlords who, being unscrupulous, would seek to use the limitation for the purpose of getting rid of tenants whose tenancy had approached the three-year period.
For all these reasons, I hope the Committee will agree that we really should not run entirely counter to the purpose of this interim Measure in order to impose these qualifications to the right to a new tenancy sought to be introduced by the Bill.

§ Mr. John Hay (Henley)
By far the most fascinating feature of the case made by the learned Solicitor-General was the fact that he did not deal with so many of the arguments advanced from this side of the Committee on behalf of this Amendment. As I understood him, he dealt with only two of them—the point raised originally by my hon. Friend the Member for Hertford (Mr. Walker-Smith) on the desirability of giving the tenant what was called an uncovenanted benefit, and, secondly, the argument raised indirectly and answered very well by my hon. Friend the Member for Wolverhampton, South-West (Mr. Powell). I do not think the right hon. and learned Gentleman has really, at this stage, fully understood what our purpose is.
Our object, as I understand it, is that the type of benefit which this Clause proposes to give should only be bestowed upon those traders who are really deserving of it. That does not necessarily mean that, because a man has been the occupier of a shop for only a year, he should automatically be excluded from benefit, because we do not necessarily by our Amendment, however badly it may be drafted, exclude him being the successor of a man who was previously carrying on the same type of business. I should have thought that the Committee would have realised that, if it is desirable that we should give this particular benefit under this Clause to shopkeepers, we should be satisfied to give it to the right sort of individual. We all understand that there is this great shortage of shop accommodation. It is largely because of this shortage that the difficulties with regard to the Landlord and Tenant Act, 1937, have come about, because that Act was passed at a time when shop premises were not nearly so scarce as they are today.
To return to the main argument, if a man has been in occupation of premises for a long time under a long lease, perhaps one of 21 years, it is only right that he should have a chance of this increase of tenure, but we say that, if a man has just started in business and taken premises for a short time, say, 12 months or two years, he should not automatically get the right to insist upon a further period of one year's tenancy, because he has not yet acquired a status.
Our intention is to try to give help to the established trader, the man who more 1370 than anyone else needs the protection of this Bill. I was very surprised indeed to hear the learned Solicitor-General enunciate what was the very converse of our argument. As I understood him, he said that in time of scarcity such as these, tenants of business premises always tried to get short tenancies. I listened to the right hon. and learned Gentleman very carefully, and I believe I showed some puzzlement when he said that; I think that was what he said.

§ The Solicitor-General
I am sorry if I have not made myself clear, but I said exactly the opposite. Tenants of shops, often against their will, are constrained to take short tenancies, when they would have preferred long ones.

§ Mr. Hay
I rather think that if the learned Solicitor-General looks at HANSARD tomorrow, he will find that he said it the other way round, but, at any rate, he has now made clear what he means.
I would urge the Committee not to accept the rather fallacious argument that, as this is a purely temporary Measure, we should do nothing to improve it, because that is all that the arguments from the other side amount to. Here is a provision in the Bill of which we are in favour, and we are saying that it ought to be improved. It does not matter whether this Bill will exist for only two years or not; we ought to try to improve it, if we possibly can. I therefore urge the Committee to accept the Amendment.

§ Mr. Gibson (Clapham)
The hon. Member for Henley (Mr. Hay) said that he was in favour of the intention of this Clause, but the fact has been admitted by all speakers in this debate that, if this Amendment is carried, the number of people who will benefit is considerably reduced. Whereas, at the moment, there is no limitation of time before people can receive the benefit of this Clause, under this Amendment, they will have to have had a three years' tenancy of the shop.
I will give one illustration of many which I could provide. In my constituency, there happens to be a roadway which is to be widened. There are some shops in it, and the shopkeepers are engaged at the present time in transferring their businesses to other premises. 1371 Most of them, unfortunately, have been subjected to severe bombing, and they are not in a completely permanent condition. Shopkeepers on one side of the street are moving to other shops, but they will not have had anything like a three years' tenancy of the new shop—

§ Mr. Manningham-Buller
Can the hon. Gentleman tell us what period of lease they are getting in the new shops?

§ Mr. Gibson
Most of them, I am informed, are taking yearly tenancies. They will not have had a three years' tenancy of the premises, and would not therefore benefit from this Clause. All of them are small people—newsagents, tobacconists, barbers and so on—and some of them are ex-Service men, and I say that that kind of person ought to be protected.

§ Mr. Hay
I want to follow the case which the hon. Gentleman is putting. He says that these people have been granted yearly tenancies. Would he tell the Committee whether, in fact, they have been offered or have asked for longer terms?

§ Mr. Gibson
My information is that they are getting yearly tenancies, and, probably, that is all they want. The point I am making is that all of them are building up their goodwill, and they will lose the benefit of this Clause if the

§ Mr. Black (Wimbledon)
I think the speech of the hon. Member for Clapham (Mr. Gibson) indicates the confusion of thought which exists on the part of some hon. Members on this matter, and I intervene only to deal with the particular case which he mentioned. He instanced a case in his constituency of certain traders moving into new premises on yearly tenancies, and he made the case that these traders should have the benefit of the protection of this Bill. I think he has overlooked the fact that, after all, a yearly tenancy must be a tenancy for a minimum of two years. It cannot be less, because, by the very nature of a yearly tenancy, it cannot be determined before the end of the second year. That being the case, in as much as this Bill covers two years only, they will not in any event be protected by the Bill, either in its original form or its amended form.

§ The Solicitor-General
I beg to move, in page 7, line 28, at the end, to insert: or which consists of a shop and of such living accommodation as is mentioned in the last foregoing paragraph. This Amendment is purely consequential. It introduces the case in which there is a separate part which consists of a shop and of dwelling accommodation which is joined to it. As the Clause reads at present, that particular category of case is left out. It was a purely unintentional omission, and this is a drafting Amendment to introduce it.

§ Sir Patrick Spens (Kensington, South)
I beg to move, in page 7, line 39, after "shall," to insert "if the landlord consents."
Subsection (4) is a very peculiar subsection. The first thing about it is that it is the one subsection which takes away all discretion from the judge. The word "shall" makes it mandatory on him, if he thinks fit to grant a new lease of premises in which a shop is comprised, to confine the new lease to the shop premises alone, subject to the proviso that where there is let with the shop living accommodation in which the owner of the shop, or someone employed by him to manage the shop, lives, the living accommodation can be included with the shop in the new tenancy.
That is one case where, obviously, something beyond the shop should be included in the tenancy. In other cases it seems extraordinary that where other premises which are included in the lease are let with the shop, the new let lease should be confined solely to the shop premises. What the Clause means, apparently, is that if there are shop premises 1376 together with a backyard or yards, stabling, garage accommodation or something of that sort, which can be regarded as being separate from the shop, the landlord is to be left with that part of the premises, and the separate shop premises alone are to be extended in favour of the tenant.
That seems to us a most extraordinary arrangement. We cannot believe that it is sound in principle, and for that reason we propose the insertion of the words, "if the landlord consents." If at a hearing of the case a court were to suggest, "Let the landlord have the backyard and garage, and let the tenant have only the shop," if the landlord were willing that would be well and good; but if not, and if there were to be an extension of the old tenancy, then in our view the tenancy should include all the premises of which the tenant was previously in possession. This is a short but important point, because the word "shall" binds the discretion of the county court judge.

§ The Solicitor-General
We think it is reasonable that if the landlord so desires, the new tenancy should be a new tenancy of the same unit as before—in other words, of the shop and the remainder. The drafting of the Amendment has certain defects, but, speaking for myself, if the hon. and learned Member would ask leave to withdraw it, we would think it right to introduce an Amendment to carry out the object which he has in mind and which, we think, is reasonable.

§ Sir P. Spens
In those circumstances, I beg to ask leave to withdraw the Amendment, and I thank the right hon. and learned Gentleman for this first concession he has made to the Opposition on the Bill.

§ Mr. Janner
I hope that before the Report stage my right hon. and learned Friend will consider the question of deciding what "shop" really means. This is an extremely important matter. Many of us consider that the word "shop," as defined by some dictionaries at any rate, entitles us to say that a shop can be utilised for various purposes, and we do not want misunderstandings which would create litigation afterwards.
We should like to be assured that the term "shop" would include the ordinary kind of shop which is used, for instance, for the practice of a dentist or something of that nature. A solicitor's office is another kind of business which does not come within the technical term of "business" in the ordinary sense. I hope that before we reach the next stage of the Bill, the Government will allow businesses such as dental and other surgeries, and offices for solicitors and others, to be included within the scope of the terms of the Bill.

§ Sir P. Spens
On a point of order. Is the hon. Member in order, Sir Charles, in arguing what your predecessor in the Chair refused to allow on the ground that those suggestions went beyond the scope of the Bill? The hon. Member is now submitting the very argument which the Chair refused to allow to be put to the Committee.

§ The Deputy-Chairman (Colonel Sir Charles MacAndrew)
I was just about to say so. Amendments which were not called are out of order and cannot be discussed on the Motion "That the Clause, as amended, stand part of the Bill." Nothing can be discussed except what is in the Clause as amended.

§ Mr. Janner
I am sorry to hear that that is your view also, Sir Charles. In the circumstances, I do not propose to pursue the matter further.