HC Deb 31 January 1951 vol 483 cc936-70
Mr. Manningham-Buller

I beg to move, in page 2. line 4. after "Act," to insert: but not before the twentieth day of November, nineteen hundred and fifty. I am sure that the Committee will be glad, after our fruitful but somewhat lengthy discussion on Clause 1, now to turn its attention to an equally complicated and, perhaps, almost as unsatisfactory a Clause—Clause 2. I conceive, I hope, correctly, that the object of the Clause is to provide for the case where a tenant is holding over after the expiry of his tenancy and to bring him, if he is still residing or living on the premises, within the scope of Part I—

The Attorney-General indicated assent.

5.15 p.m.

Mr. Manningham-Buller

—that is to say, to ensure that just because his lease has fallen in quite recently, he should not be deprived of such advantages as this Measure gives him. I hope I have stated fairly accurately what I believe to be the object of the Clause, although I have put it shortly. If I am wrong, I hope that I shall be corrected. If that is the object, the right hon. and learned Gentleman will see that the Clause goes far beyond that object if it is read with paragraph 2 of the First Schedule.

I can put the position most easily and shortly by giving an illustration. The Clause, of course, has a retrospective effect. It has to be considered with reference to paragraph 2 of the first Schedule. This illustration should make clear, as I understand, the position under the Bill, a position which is quite different from the objective of the Clause, which the right hon. and learned Gentleman agreed I had stated at least fairly accurately. Supposing there is a ground lease which expired, say, 10 years ago and the same tenant or a member of his family is still in occupation of those premises although that lease expired 10 years ago, and, of course, not against the landlord's wishes, but with his desire, because, contrary to what one would have imagined from so many speeches opposite, it is to the landlord's interest to have the premises occupied and—this ought to be emphasised—to keep a good tenant.

Supposing that on the expiry of that lease, 10 years ago, a fresh agreement was entered into between that landlord and that tenant, and both parties were happy and content with the terms of that fresh lease—I am not dealing with the period of the lease, but with a fresh lease—

The Attorney-General

On different terms?

Mr. Manningham-Buller

Yes, on different terms—where both parties were agreed, where there was no element which the hon. Member for Leicester, North-West (Mr. Janner) would class as exorbitant—many renewals take place without any indication of excessive increases, although with an increase of rent; in my illustration, the tenant, realising that his ground lease has expired, realising that what he has agreed to has happened, has willingly accepted a fresh lease, on fresh terms, and is in occupation with his landlord's consent. The hon. Member for Leicester, North-West, would try to make out that that was a very remarkable case, but it is not.

What is the position regarding that case? How is it affected by the Bill, with the tenant living there happily for the last 10 years? On looking at paragraph 2 of the First Schedule, one sees that The continued tenancy"— that is to say, any tenancy where the tenant continues in occupation after the date of expiry— shall he treated as having effect, and as having had effect, in substitution for any other tenancy or agreement (whether express or implied) by virtue of which the former tenant or a member of his family remained in occupation of the property. … The effect, as I understand, will be that directly the Bill becomes law, from the date of continuation—that is, the date of expiry of the old lease, 10 years ago—the Bill begins to operate in place of the agreement which has been freely and voluntarily entered into.

The Attorney-General

Perhaps I may intervene to save time. That would not be so in the case which the hon. and learned Member postulated. If the new tenancy, on the new terms created 10 years ago, raised the rent, that case would not be brought within the protection of the Bill. As the hon. and learned Member will see from subsection (4, a) of the Clause, it is only where the tenant is living there in right of a tenancy or agreement (whether express or implied) at a rent, or in consideration of a payment in the nature of rent, of the like amount as the rent payable immediately before … that the tenancy continues. Where, on the other hand, the landlord and tenant have entered into what may be a perfectly fair agreement for a new tenancy at a new rent, that tenancy will go on and the Clause will not bite at all.

Mr. Manningham-Buller

That is what I think would be achieved. If that is right, and I hope it is, I do not see what paragraph (2) of the First Schedule does, or is intended to do. I hope the right hon. and learned Gentleman will explain this because it is a real difficulty. The First Schedule has to be read in conjunction with this Clause, but under the First Schedule it is quite clear that, provided there has once been a ground lease, provided that the tenant carries on, provided that it is an agreement after the expiry of the ground lease, under that paragraph of the Schedule that agreement is set aside whether it be for a like rate, an increased rate or on different terms.

Therefore, I thought the illustration I was putting forward was equally applicable whether the new agreement increased the rate or not. In paragraph 2 in either case the fresh agreement entered into will be set aside. That is why, following on my argument I say that this Clause, having regard to paragraph 2 of the Schedule, has a far wider retrospective effect than it intended because there is no date excluding cases where ground leases have expired many years ago.

Under the Clause anyone is brought within its ambit if he is holding over with a fresh agreement from his former ground landlord. It seemed to us that to avoid these difficulties the best thing to do was to specify a date, limiting the retrospective effect, and we put down this Amendment for that purpose. We are not wedded to a particular date, but we feel that something should be done for clarification. It is obviously right, according to the structure of the Bill, that where the lease has expired since the presentation of the Bill, although the Bill has not become an Act, the retrospective effect should be carried back to cover that class of case. That is why we have put down the Amendment to cover leases expiring after 20th November, 1950.

Unless some alteration is made to paragraph 1 of the First Schedule—and there is no Government Amendment down to that—I say with some confidence to the right hon. and learned Gentleman that when he has to interpret that paragraph in relation to subsection (4) either that paragraph of the First Schedule is meaningless, or if it means anything, it has an effect quite contrary to the objective of this Clause which as the right hon. and learned Gentleman agreed, was the objective which I endeavoured to outline. I hope the right hon. and learned Gentleman will be able to give a satisfactory explanation.

The Attorney-General

I think there is a misunderstanding about the first point raised by the hon. and learned Member for Northants, South (Mr. Manningham-Buller). Assuming that the new lease entered into 10 years ago, although possibly differing in other terms, was at the same rental as that which applied hitherto, the Bill would bite and the old tenancy would revive. The paragraph in the First Schedule is necessary in order that there shall not be a double application under the old tenancy, which is revived, to pay whatever it is, say, £20 a year, and under the new tenancy, entered into 10 years ago, another £20 a year. It is really a technical and purely drafting point and I do not think it has the effect which was apprehended by the hon. and learned Gentleman in the first instance.

Mr. John Foster (Northwich)

If a 99 years' lease were extended 50 years ago on payment, say, of £1,000 penalty, is not that affected by the Bill so that the rent for the next two years is not paid but counted against the £1,000 under paragraph 3 of the Schedule? Am I right, or wrong?

The Attorney-General

No, I think that is not so. The point which the hon. and learned Member has just put would be caught by the Bill on the 50 years' lease, the second lease, as it would be a lease of more than 21 years and would, therefore, come within the scope of the Bill.

Mr. Foster

If it were 19 years ago would it apply?

The Attorney-General

It might apply to a lease entered 19 years ago if the tenant were still in occupation.

Mr. Foster

It is important to get to know what the Bill does. If, 19 years ago, someone paid £500 to extend a 99 years' lease, assuming that the ground rent was £20 a year, he would not have to pay anything for the next two years?

The Attorney-General

That would be a case where a new agreement had been entered into, and it would not arise at all.

Mr. Foster

But the rent is the same.

The Attorney-General

Yes, but the premium is taken into account.

Mr. Foster

Under paragraph 3 of the Schedule? That is the point of my question.

The Attorney-General

I think it has exactly the result which I said it has, that it is taken into account and it takes that kind of tenancy outside the scope of the Bill. It is, as it were, apportioned over the period as an addition to the rent. That is what I said and I think it is right—

Mr. Foster indicated dissent.

The Attorney-General

Well, we will look into it and see who is right.

Mr. Foster

The hon. Member for Leicester, North-West (Mr. Janner), appears to agree with me.

The Attorney-General

I am sure the hon. and learned Gentleman will be gratified to know that his view of the law, which I think is incorrect, is none the less supported by my hon. Friend the Member for Leicester, North-West (Mr. Janner).

The other point, which is substantial from a different point of view from that raised by the hon. and learned Member, is that the Bill is retrospective and that it might be a useful thing to fix some period to the extent of the retrospection. It is perfectly true that on both sides of the House we look jealously at any legislation which has a retrospective effect. We considered the question of whether the Bill should be retrospective at all and, if so, to what extent, before we framed the Bill in its present terms.

We knew, even before this Bill was presented, that a great many people were anticipating that some legislation of this kind would be introduced, and a great many people, with the consent of their landlords, with the acquiescence of their landlords, at any rate without their landlords taking any steps to dispossess them, remained on with the intention, perhaps, on both sides, that they should be covered by the scope of the Bill. That being so, and once the principle of retrospection at least to the date of the introduction of the Bill—which is what the hon. and learned Member for Northants, South, had in mind as that is the date he has put in his Amendment—is accepted, there seems to be no objection in principle to retrospection being extended.

The longer the landlord has allowed his tenant to remain in possession on the same terms as under the old ground lease the better is the case for giving that tenant a further two years' protection. We thought that unless we took the date of the introduction of the Bill we could not find any earlier arbitrary date which would do justice between the parties. We must accept restrospection in the unusual circumstances of this Bill, and it seemed to us better not to put any term to it.

5.30 p.m.

Mr. J. Enoch Powell (Wolverhampton, South-West)

The discussion of this matter so far has, with the exception of the Attorney-General's closing remarks, related to the case of a voluntary understanding between landlord and tenant. I wish to point to the case in which there is no such voluntary understanding, and to argue that the unlimited retrospection which is provided by the Clause as it stands has the effect of placing a premium on non-compliance and obstruction. I read Clause 2 in conjunction with Clause 4 (3) which states that any proceedings instituted after 21st November, 1950, but not disposed of before the commencement of this Measure shall be stayed, and with paragraph 4 of the First Schedule, which prevents the execution of any court order which has not been complied with.

What will be the effect of those three provisions taken together? If a tenancy came to an end, say in July, 1950, and if the tenant, recognising that his rights as against those of the landlord were at an end, vacated the premises, he does not secure the advantages of the Bill, whereas if he forced the landlord eventually to take him to court, and the proceedings had not been brought to an end or the order made by the court had not been executed by 21st November last, he will gain the full advantage of his recalcitrance. I suggest that that is an unreasonable result.

There is a logical ground for making the limit of retrospection the same as the limit of protection provided in Clause 4 (3). Parliament has thought that from that date tenants should be protected against the effect of legal proceedings. To that date there should be retrospection. In the same way, before that date, all owners of expired leases should be placed in the same position, whether the premises have been vacated or not.

Mr. Manningham-Buller

I am sure that the Committee, at least some Members, desire to get on with the Bill. I am not sure about the hon. Member for Leicester. North-West (Mr. Janner).

Mr. Janner

I want to make the Bill better; the hon. and learned Gentleman wants to destroy it.

Mr. Manningham-Buller

I would suggest that if the right hon. and learned Gentleman will say that he will give further consideration to this very important point, and, in particular, to the point raised by my hon. Friend the Member for Wolverhampton, South-West (Mr. Powell), as well as to those put by me, and let us know, perhaps before the Report stage, the result of that consideration, we might leave further discussion of this difficult point until the Report stage and proceed with our consideration of other proposed Amendments to the Bill. I say that in spite of the accusations thrown out by some hon. Members opposite about wrecking and obstruction.

The Attorney-General

The hon. and learned Gentleman has put his suggestion in a very generous way. I am not sure whether the motive behind it is that he appreciates that this discussion cannot be carried on with success by his side of the Committee. We will certainly look at the matter in the way he suggests, and I suggest that the hon. and learned Gentleman should look at the Amendment which the Government have put down to a later part of this Clause, in line 42. I think that he will find that any ambiguity there may be in the matter is cleared up by that Amendment.

Mr. Manningham-Buller

I have looked at that Amendment, but I do not think that is the case. What is required is an Amendment to the First Schedule, but no doubt the Attorney-General will have an opportunity of considering that.

In view of the way in which the Attorney-General has responded to my suggestion, I beg to ask leave to withdraw the Amendment,

Amendment, by leave, withdrawn.

Mr. Manningham-Buller

I beg to move, in page 2, line 10, to leave out "living," and to insert: holding over and residing. Those of the Committee who have read this Clause will, I think, agree that it is very difficult to understand. Subsection (1, a) brings within the scope of the Bill those cases where immediately before the date of continuation the tenant or a member of his family was living in the property or a part thereof in right of the tenancy. That is the first condition which the tenant has to satisfy to come within the provisions of the Bill. But when one reads on one sees that under subsection (1, b) the person has to be living there "in continuation of the tenancy." That is a technical phrase because it is sought to define it later. But the tenant will not be living there in continuation of the tenancy at all, he will be living there after the tenancy has expired. He will be doing what most of we lawyers know and describe by the phrase "holding over." I cannot see why that should not be the phrase used in the Bill, particularly as it is used in one of the Amendments tabled by the Government.

When one considers what is the meaning of "in continuation of the tenancy" it will be seen that it is defined by Clause 2 (4) as being confined to meaning either someone living there: in right of a tenancy or agreement … In many holding over cases there will be no tenancy or agreement. It may be that no agreement has been reached or the person may be living there otherwise than in right of a tenancy. Taking those two provisions together they mean that anyone who goes on living in his house after the lease has expired is living there in continuation of a tenancy which has already expired.

I suggest to the right hon. and learned Gentleman that he can avoid a great many difficulties if he uses the words "holding over," perhaps subject to one qualification which, I admit, I do not think is covered by our Amendment. That is that we wish to cover the case where there is a "holding over" notwithstanding an effort made by the landlord to recover possession. I concede that in that respect our Amendment is defective. I ask the Attorney-General to say that he will give consideration to the use of the phrase contained in the Amendment, which is commonly known by lawyers, subject perhaps to that slight alteration or addition.

Mr. Janner

I hope that the Attorney-General will not agree to this Amendment in spite of the blandishments of the hon. and learned Member for Northants, South (Mr. Manningham-Buller). The hon. and learned Member takes objection to our attempts to make the Bill more extensive by suggesting that that is obstruction. On the contrary, we on this side of the Committee are doing our best to bring within the fold of this Bill as many people as we possibly can. It is a pity that we cannot bring in more people than we can.

The term "holding over" is not the appropriate term when a tenancy is continued as it is intended to continue a tenancy under the Bill. If there is any waste of time it is this quibbling that is resulting from the various Amendments put forward which have no substance in them at all, and I hope that the Attorney-General will resist that kind of Amendment.

Mr. Gibson

As a simple man, I cannot for the life of me—and I am sure that thousands of other people cannot—understand the difference between living in a place and residing in it. I would he glad if someone would explain to me what is the legal difference.

Mr. Manningham-Buller

I do not propose to seek to take up time in defining that for the hon. Gentleman who describes himself—I fear inaccurately—as "a simple man." I would not have applied the word "simple," but it is his own description. The real point about this Amendment, other than defining the question of "residing" as opposed to "living" is the use of the simple phrase "holding over," which is a well-known phrase.

Mr. Leslie Hale (Oldham, West)

I can deal with the matter in a few sentences. "Holding over" means a trespasser. The whole point of the words is to say that a person is living illegally in the property. There is no difference between "living" and "residing." There is, however, a great difference by using the words "holding over," which would certainly affect the position of the occupier. The Clause is quite clear. It applies to people living in a property in continuation of the tenancy. That is a perfectly clear and acceptable phrase. The whole object of the Amendment is to try to put the occupier in an unhappy position in law by using words that imply that he has no right to be there.

The Attorney-General

This Amendment raises two points, as the hon. Member for Oldham, West (Mr. L. Hale). has said: the substitution for "living … in continuation of the tenancy" the words, "holding over and residing." I think that hon. Members opposite have a subsequent Amendment to delete the words "in continuation of the tenancy." So far as the first point is concerned, the comparative merits of "living" and "residing," I agree with the hon. Member for Clapham (Mr. Gibson), who, whether simple or not, is certainly a sensible layman in these matters. I do not think there is really any legal significance in the difference between the two phrases, but I promise that we will look at them and so I will say no more about that aspect of the matter. The real point here is the substitution of the words "holding over … in continuation of the tenancy."

The hon. and learned Member for Northants, South (Mr. Manningham-Buller), has criticised the Clause as being complicated. I would concede that it is complicated, and inevitably and necessarily so. The expression "holding over" looks very attractive and simple at first sight, because it is two words in place of, I think it is, six. But it gets rid of one complication in the Bill at the cost of creating another and of causing considerable uncertainty as to what class of continued tenancy—if I may go back to our phrase—it is on which the Bill will really bite.

The expression "holding over" is used in at least three different senses. First, in the case of holding over without any statutory right, as in subsection (4, b) of our Clause as we have introduced and got it now. That is the correct use of it, as I understand it. It is used, secondly, where there is an occupation under an implied extension of the expired tenancy, based on the conduct of the party, the implied rent and other terms being the same in the expired tenancy, and the duration of the implied tenancy being a matter for argument but probably resulting in an annual tenancy. Third, it is used to cover the case of agreement which is implied from conduct where the terms may be different from those of the original tenancy.

It is very doubtful whether that last case would be caught at all by the words used by the hon. and learned Member. As for the second case, that is very frequently referred to as holding over. giving rise to an annual tenancy, but the courts might well say that is not caught here by the expression of the hon. and learned Member. The only one we can be sure about, until the matter has been the subject of some litigation by the courts, would be the first one, and that is not as wide as we intend it to be.

For that reason I do not think I can accept the Amendment. I have met my hon. Friend by saying that I will look at his point and satisfy myself that there is a valid objection, but I do not think we can either insert an Amendment now or promise ourselves to put down an Amendment.

5.45 p.m.

Mr. Manningham-Buller

From recollection I think the expression "holding over" certainly covers the first two categories mentioned by the right hon. and learned Gentleman. Of the second, I should have thought there was no doubt. It is a convenient phrase which the Government themselves are using in a later Amendment and it is, I think, covered to a large extent by what is meant by the very complicated wording here. But we will not prolong the discussion on it now, tempted as I am to explain to the simple layman why we put down the words. In view of what the Attorney-General has said, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The Attorney-General

I beg to move, in page 2, line 12, to leave out from first "the," to "family," in line 14, and to insert: former tenant or a member of the former tenant's". This is a drafting Amendment. We have a subsequent Amendment to page 3, line 3, which inserts a new subsection (6) which defines the expression, "the former tenant." The use of this expression in place of the longer phrase, the person who was the tenant immediately before the date of continuation. does, I think, make the Bill a little simpler and should facilitate the drafting of the further Amendment we have in line 42.

Amendment agreed to.

Mr. Hay

I beg to move, in page 2, line 39, to leave out from "Act," to the end of line 41.

Subsection (4) defines those who are concerned with subsection (1, b). It sets out in two parts a definition of what is a person living in the property or part thereof in continuation of the tenancy. The words which we ask the Committee to leave out of this Clause are subsection (4, b) which indicates that a person who was living there otherwise than in right of any tenancy or agreement is to be considered as a person living in the property in continuation of the tenancy.

This is not the same point we have just been discussing in connection with the last Amendment. It is of a slightly different nature. We fear that this subsection as drafted would cover not only the sort of person described in the subsection and the earlier Amendment as a tenant who has been in occupation but is "holding over"; whether the use of those words is in the sense we intend it, or the three senses in which the Attorney-General used it. That sort of person is not the only type of person covered by subsection (4, b). As we read it that subsection would cover all sorts of other people as well.

For example, there is the person who is on the premises as a trespasser pure and simple, with no right at all. If some part of the property, not necessarily the whole, became empty and some squatter broke in and actually took up residence there, under subsection (4, b) he would be covered. I know that it is a rare likelihood, but it is not too small a point that we should not spend a few moments on it. If this wording is not altered, we cover not only the tenant who has remained in occupation of his house on the expiration of his lease some time back and whose tenancy is continued by the Clause, but also a trespasser—a person who has no right at all to be on the premises.

The words are clear in their natural meaning. In the ordinary meaning I suggest that the words: … living there otherwise than in right of any tenancy or agreement can only mean some person living there who has never had any right or any tenancy of any kind. We also seek to delete the last three words of the subsection, "and not otherwise." I cannot see any reason at all for those words. Subsection (4) defines people who are living in property in continuation of a tenancy. First, there is a person living there in right of a tenancy or agreement. Secondly, there is a person living there otherwise than in right of any tenancy or agreement. Then the subsection says, "and not otherwise." What otherwise there possibly could be, I do not understand.

I hope I do not incur the wrath—I will not say the just wrath—of the hon. Member for Leicester, North-West (Mr. Janner), by raising this matter. It is a good point, and I hope that the Attorney-General will realise that possibly the wording is not right and that it might be improved. I hope that he will accept the Amendment.

Mr. MacColl (Widnes)

I should like to follow what the hon. Member for Henley (Mr. Hay) said. I have long given up any attempt to understand the meaning of the words in this subsection or the words in the Government Amendment which adds to it. One may take it that nobody who is not an exceedingly experienced conveyancer will ever get any kind of meaning out of it. For that reason, it is important that the layman should understand precisely what the law is intended to be. The hon. Member for Henley used the word "trespasser." It is desirable to avoid the use of that word.

Mr. Hay

I think I said, "Trespasser in the true sense of the term," meaning somebody who had got in with no right at all. I distinguished it very carefully from the sort of person who has been there in the right of a tenant and who might possibly be called a trespasser, as the hon. Member for Oldham, West (Mr. L. Hale) said.

Mr. MacColl

That was more or less the point. I should not have said that the meaning attached to the word by a lawyer is not the true meaning. The ordinary man in the street understands by "trespasser" what the hon. Gentleman called a squatter. I should like to be clear whether he is or is not covered by this exceedingly complicated rigmarole of words.

One wants to be clear that the person who is called a trespasser by lawyers when they want to bully him but who thinks he has a reasonable right to be living where he is living is covered—that is, the man who has not got that right because of some technical defect, while the squatter is not covered. That is what I thought was the intention. I should be very grateful if we could be told in simple language what precisely is meant by this Clause.

Sir Patrick Spens (Kensington, South)

Subsection (4, b) must be read in connection with paragraph 4 of the First Schedule. One must realise that not only does it include a deliberate trespasser and squatter, but it even includes someone against whom an order of the court has been made to get out but which in fact, has not been executed. Not only does it go against the ordinary law in every way: it even goes to the length of setting aside and making null and void an order of the court telling some deliberate trespasser to get out.

I hardly think that hon. Members opposite, who have shown sympathy for all sorts of people in possession, will say that they desire that someone who has no serious right to be there, and against whom an order of the court has been made but not executed, should have another two years' possession of somebody else's property. If so, we shall know where the Socialist Party stand.

Mr. Gibson

We are not justified in altering the wording of this Clause in the way suggested. It would have the effect, to use a phrase which has already been used, of reducing the number of beneficiaries under this Bill. We are not entitled to do that merely because there may be an odd criminal who is not carrying out some order of the court, or an odd squatter here and there. That is not true of London. There are a few squatters still in our parks, but before we started to turn them out under this Bill, I should want to know a good deal about the circumstances.

The whole purpose of the Amendments put forward by the Opposition is to whittle away the objects of this Bill. That is what this Amendment would do by reducing the number of beneficiaries, although the argument has been supported by reference to people who may have an order against them or who may have been squatting. I have not yet come across a squatter in a privately owned flat. Squatters are usually found in municipal flats.

Mr. John Foster

The Socialist Party protects burglars.

Mr. Gibson

We leave that to the hon. and learned Gentleman.

Mr. Foster

A burglar goes into a house and finds it empty for the weekend. He brings his family in to live there and the ground lease comes to an end at the right time. Yet he can stay there for two years. I dare say the Socialist Party may want to protect burglars; but we do not want to give them the protection of this Bill. I imagine that the Socialists got all the burglars' votes, though I do not think there would be much advantage in that.

Seriously, I appeal to the simple layman. Is he really as simple as that? Does he really want to protect burglars when, by an Amendment, we can exclude them? Or does he say, "No, we must not lessen the scope of this Bill. The Opposition are trying to deprive certain beneficiaries of their protection under this Bill and, therefore, we want to leave burglars in."

Mr. Donnelly (Pembroke)

Does the hon. and learned Gentleman say that burglars should not have a home?

Mr. Foster

And does the hon. Gentleman say that burglars, when they discover a better home, should be entitled to change it and then claim the protection of this Bill? If he does, he is making a nonsensical point. If burglars are protected, I ask the Attorney-General to adopt some form of words which will not protect them.

Again I appeal to the simple layman. I ask him as a simple layman—and I join him here—whether the last sentence does not sound to him to be nonsense. I ask the hon. Member for Widnes (Mr. MacColl) also. The words are: he was then living there otherwise than in right of any tenancy or agreement, and not otherwise.

Mr. MacColl

The hon. and learned Gentleman alluded to me as a simple layman. Goodness knows, I do not look like a lawyer, but in fact I am one.

Mr. Foster

I hope that the Attorney-General will not be satisfied with this wording. He knows what trouble can be made in the courts with a phrase like this. It must be nonsense to have the word "otherwise" eight words before the words "and not otherwise." I should like him to give an answer whether or not that is right. I think the Solicitor- General is going to deal with this Amendment, and I would point out that he must read the whole thing down to the full stop, and he will find that, near the end, we have an "otherwise" and a "not otherwise" so close together that it must be nonsense.

6.0 p.m.

Mr. Turner-Samuels

We are all very much obliged to the hon. and learned Member for Northwich (Mr. J. Foster) for his exposé on the position of burglars in regard to this Bill. I do not think that we need take such an extreme case as that, but it is very difficult to understand this Clause. Indeed, I should be very surprised to find anybody who did understand it.

The position, as it occurs to me, is that the Clause seems to have left the door wide open for something like this. Anyone who occupies a house at present can simply invite somebody else to go and stay there, and then, in a few weeks' time, they themselves can clear out and allow this other person to do something with the house which would amount to exploiting it. If these words are left in the Clause, it is perfectly clear that somebody can come from abroad and stay for three months, and that that person will be the person who is living there.

What these words mean is somewhat difficult to interpret, but that is what it means. [Laughter.] I am not surprised that hon. Members are laughing over this, because the wording is ridiculous. There is no question that it does mean that anybody can be brought into a house, either as a guest or deliberately for the purpose of exploiting the house. It is clear that this free and elastic terminology will include a person who is absolutely undeserving of any of the benefits sought to be conferred by this Bill. Unless the Solicitor-General, with some ingenuity which I cannot imagine at the moment, can give a different definition of this Clause than the one which has already been stated, and clear away the confusion and indeed the dangers that beset it, then I think he should tell us that he will reconsider this matter, and may I suggest further that he would do well, on reconsidering it, to eliminate it entirely.

The Solicitor-General (Sir Frank Soskice)

I do not think that the apprehensions which so many hon. Members have expressed regarding this Clause have any foundation at all. If I may have the attention of the hon. and learned Member for Northwich (Mr. J. Foster), I cannot refer to a burglar, for the simple reason that the person who is referred to in subsection (4, b) must be either the tenant or a member of the tenant's family.

Mr. Manningham-Buller

But he may be a burglar.

The Solicitor-General

He may be, but draftsmen cannot be expected to provide for all sorts of rare contingencies. It is scarcely worth while taking up the time of the Committee by arguing such a fanciful suggestion.

What the Clause is designed to do is this. Subsection (4, a) deals with the case where, the long lease having expired, there is a fresh holding at the same rent. Subsection (4, b) deals with this kind of case. There is a tenant, or a member of the tenant's family, living in the premises under the terms of the long lease, which then comes to an end, but the tenant does not immediately go.

The sort of situation which might well arise in these circumstances, and the one which the draftsmen had in mind in this particular context, is that the ex-tenant stays on, and one may assume that there are negotiations proceeding between him and the landlord for a fresh lease or tenancy. Technically, when he is staying on—there having yet been no new contract as between the parties concerned—he is, in law, a trespasser. There is no other way of describing his position than as a trespasser in law. When the hon. Member for Henley (Mr. Hay), in moving the Amendment, asked the question whether, as a matter of drafting, this technically includes trespassers, the answer is that certainly it does. That is what the wording is designed to do, and it certainly brings about that result.

The short answer to the arguments which have been addressed from both sides of the Committee as to the possible effect of this Clause is to be found in the limitation in subsection (1, a)—the limitation that the person who is in the premises, whether under the terms of a new contract or without any contractual right to be there, must be either the previous tenant holding over, or some member of the family of the previous tenant. Therefore, it is quite fanciful to suggest in that particular case that a burglar might come in, and that is not likely to happen in more than one case out of 10 million; that is about all.

The question is whether, in those circumstances and as matter of substance, we are right in so framing the provisions of the Clause. Our object in this standstill Measure is to preserve the status quo, and we feel that, when we find a situation in which a tenant is holding over, in those circumstances it is right to perpetuate the situation for the two-year period in order that permanent legislation may be introduced to deal with that case. That is the reason the Clause is framed in that particular way. Once he has gone out of the premises, of course, it is impossible in practice to restore the position to what it was before, but we have taken the view. on the merits of the Clause, that where we have a previous tenant or member of his family still there, probably because negotiations are still going on, this Clause should apply and he should be given this extended tenancy, which will keep him in possession during the interim period for which the Bill provides.

It is not as if the tenant is allowed to live there rent-free, because the effect of Clauses 1 and 2 is that retrospectively a tenancy is created—that is to say, the original tenancy subsisting under the long lease is prolonged in respect of any period that may elapse during the negotiations—but he is liable to pay the same rent as he was paying before. Whether or not that is the appropriate rent is another matter, which we have already discussed on the first Clause. If it be assumed that the view which the Government have taken and which the Committee have accepted is right—that the pre-existing rent is the proper rent—the so-called trespasser is placed under an obligation to pay that proper rent. That is the substance of the matter.

I confess that one would have to tax one's ingenuity to think of a case in which there was an unmeritorious trespasser, and there could not be many, because the person has to be either the tenant or a member of the ex-tenant's family. There will be a very limited number of such cases, though conceivably there may be some, but as a matter of definition it is quite impossible to exclude the rare and unusual case, such as the case where we might have a person in the premises as a trespasser under subsection (4, b) who has no reasonable grounds for being there at all. We therefore thought that, as the vast majority of cases would be cases such as I have described, and as it is not possible, as a matter of drafting, to exclude the rare and unmeritorious case, it is better to leave the Clause as it is, providing, as it does, that a person who is technically in the eyes of the law a trespasser may be given protection as the person who will be staying on when the negotiations have gone a little further. That is the case we make with regard to that position.

May I deal with one or two questions that have been raised concerning the drafting? The hon. Member who moved the Amendment asked what is the effect of the words "and not otherwise," with which subsection (4) concludes. They have effect with regard to this case. They exclude the case of a person who is staying on under the terms of the new tenancy not at the same rent, and who, therefore, does not come within subsection (4, a) and—

Mr. L. Hale

Why? Would it not be better to eliminate subsection 4 altogether? Why this restriction on people who have had to pay a bit more to get in?

The Solicitor-General

May I deal first with the question as a matter of drafting? My hon. Friend's question goes entirely to the merits, and we have already given reasons why we think that undesirable; but, as a pure matter of drafting, it deals with the case of a person who is not staying on under a tenancy of the same rent, but who has a tenancy, and who is therefore not affected by subsection (4, b) either.

With regard to the question raised by the hon. and learned Member for Northwich, I really do not see what his difficulty is. Subsection (4, b) talks about a person who is living there otherwise than in right of any tenancy or agreement, and "not otherwise" refers to all persons who do not fall within paragraphs (a) or (b). There is no difficulty about it. I think that if one analyses the language with any degree of attention, he will find that the drafting as it stands is perfectly satisfactory to achieve the purpose, if the Committee agree with that purpose. If they agree that the purpose is a proper one, then the Clause certainly achieves it.

My hon. Friend the Member for Oldham, West (Mr. L. Hale), asked me a question which, of course, goes entirely to the substance and the root of the matter; but as my right hon. and learned Friend the Attorney-General explained during the Second Reading debate, he thought that when there had been merely something of the nature of a completely new contractual—

Mr. Manningham-Buller

On a point of order. If it was out of order to discuss the question of the effect of letting at an increased rent during the course of an earlier Amendment, it surely cannot be in order, I submit, Sir Charles, to discuss it on this Amendment?

The Deputy-Chairman

It might be better if the debate were confined strictly to the Amendment under discussion.

The Solicitor-General

Perhaps both my hon. Friend the Member for Oldham, West, and myself are to blame with regard to this. I think my hon. Friend would agree that it is not strictly germane to this Amendment.

Mr. L. Hale

With all respect, I venture to submit, Sir Charles, why I think it is germane. The Amendment seeks to leave out half of this Clause. If that is done, it will leave some people excluded, and not others. Therefore, in my submission, it is entirely relevant to the discussion. The whole question of who should be excluded arises on this Amendment, and indeed it falls to be discussed on the next Amendment if you decide to call it, Sir Charles.

The Deputy-Chairman

I am in some difficulty. I thought that the right hon. and learned Gentleman was in order, but if he is not, perhaps he will take care.

The Solicitor-General

Whether in order or not, I have already given the answer I desired to give, even if you rule me out of order in proceeding further, Sir Charles.

Those are the reasons why I ask the Committee to say that the Clause should stay as it is and to reject the proposed Amendment.

6.15 p.m.

Mr. Manningham-Buller

I must say that I am not in the least satisfied with the right hon. and learned Gentleman's reply. In the first place—and I think I have the support even of hon. Members opposite for saying this—this is an extremely badly drafted Clause, confusing, complicated and vague. As to the object which the right hon. and learned Gentleman has sought to achieve, I said some time ago that the tenant waiting for this Bill ought to be included within its scope, even though the landlord had given him notice to get out. That is one thing, but the right hon. and learned Gentleman has himself admitted that this Bill goes much further than that. It is all very well for him to laugh at the suggestion of a burglar, but may I put this case to him.

The right hon. and learned Gentleman admits that the wording is such as to cover trespassers who are not trespassers in the sense that they continue to hold over against the will of the landlord; but the case with which he did not deal was that put by my hon. and learned Friend the Member for Kensington, South (Sir P. Spens), that the effect of the First Schedule, read in relation to this Clause, is to provide that anyone against whom a court order has been obtained to leave premises will, notwithstanding that court order, be given, by virtue of this subsection, an extended tenancy for two years. We think that is quite wrong, and in our view, therefore, these words ought to come out and space be left, if necessary, for the right hon. and learned Gentleman before the Report stage to table a further Amendment for the purpose of carrying into effect what is the intention of the Government, and nothing more.

Mr. L. Hale

I am sorry to continue this discussion, but there are two problems of importance in connection with this matter, one of which ought to be put at once. My view, and the view, I am sure, of my hon. Friends and of those who signed the minority Report, is that an English family have a right to a home. That is a right which predominates over the question of rent or any other interest at all. The right of a family to a home belongs to the burglar's family as well as to any other family, and we are trying to protect their occupancy of their homes.

During the Second Reading debate, we had a reference by the hon. and learned Member for Wirral (Mr. Selwyn Lloyd) to brothels. We now have references to a burglar. It would therefore be right to say that in our view the Englishman's home is his castle, and that in the view of the Opposition it is his brothel. That sort of thing is unreasonable, unfair and indelicate, and ought to be dealt with.

I want my right hon. and learned Friend to consider, between now and the Report stage, whether subsection (4) is necessary at all. As I understand it, this Clause means that if anyone went into the fag-end of a long lease and had to agree to pay a little extra to do so, not merely had to pay the ground rent to the landlord but also had to pay something to the tenant who went out—and this is the final effect of this Clause and the Amendment next on the Order Paper—then he is to be excluded from protection merely because he was forced to pay a hit extra. My right hon. and learned Friend shakes his head, but I shall be glad if he will explain. I am talking about subsection (4, a) of Clause 2.

Mr. Manningham-Buller

On a point of order. The hon. Member for Oldham, West (Mr. Hale), who keeps on repeating his Second Reading speech, which gets worse and worse each time, is now devoting his speech to subsection (4, a) which is right outside this Amendment. This Amendment refers to subsection (4, b), and I suggest that he might reserve his observations until we discuss the Motion "That the Clause stand part of the Bill."

Mr. Hale

A callow and rather childish reference to somebody's speech is not a point of order. Surely, we are entitled to discuss the effect of the Clause if half of it is eliminated, and that is the proposal to which I am directing my observations at this moment. Of course, if the hon. and learned Gentleman is anxious that I should speak again, I can say it all over again on the next Amendment. The matter is raised now by this Amendment, and I would urge my right hon. and learned Friend the Solicitor-General to consider this. I see no reason why we should eliminate from the protection of the Clause tenants who have had to pay more either by way of premium or in extra rent. They are not paying it to the landlord, but to the outgoing tenant. It may be that the outgoing tenant is even reasonably justified in charging a premium because he may have to pay a premium elsewhere. It is stated perfectly clearly in paragraph (a) and in the next Amendment on the Order Paper.

Mr. Turner-Samuels

No.

Mr. Hale

If there is one thing I will not do in this House, it is to take my law from my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels).

Mr. Hay

Until the hon. Member for Oldham, West (Mr. L. Hale) spoke, I thought we had a very good humoured and friendly discussion of this Amendment, which we felt would greatly improve the wording of this Clause. I am very sorry, indeed, that the hon. Member should have chosen to make such unpleasant remarks as he has made and should have tried to persuade some of those on the benches behind him, who might have felt there was something in our argument, that it should be defeated because the English family is entitled to a home. That sort of remark should have been made to the present Minister of Labour and National Service. We on this side have made it frequently.

The lengthy explanation which the Solicitor-General gave of his reason for rejecting this Amendment was not entirely satisfactory. He tried to tie Clause 2 (4, b) with Clause 2 (1), but I did not quite follow him, because the reference in the whole of the Clause is to two sorts of people. Firstly, the words tenant or a member of his family are used, and again we get the use of this word "person." If the Government had in mind to cover by Clause 2 (4, b) the position of the tenant who was "holding over," to use the non-technical expression, and negotiating with his landlord for a new lease, it would have been far easier to say "tenant" throughout the Clause; but it keeps on referring to a person,

then living there otherwise than in right of any tenancy or agreement.

I think those words mean what they say. It may be all very well for the Solicitor-General to try and explain the exact meaning the Government give to these words, but as a Committee we should rely upon the sort of view a court would take of the words when they come to be legally interpreted. As the hon. Member for Widnes (Mr. MacColl) said, we have to try to make it intelligible to the layman, and frankly I do not think it is intelligible.

I was very sorry that the Solicitor-General did not deal with the very important point raised by my hon. and learned Friend the Member for Kensington, South (Sir P. Spens). Let me relate my hon. and learned Friend's remarks to the situation the Solicitor-General envisaged. He drew a picture of a tenant, having come to the end of a lease remaining in the premises and negotiating with the landlord. Suppose that tenant was not granted a new lease. Let us assume he had been an extremely bad tenant and the landlord did not want him to continue and that actually the landlord had a court order against that tenant. Under this Clause, as it stands, that court order can be set completely at variance. A bad tenant would be able to continue in the premises and an unwilling landlord would be saddled with him.

That sort of situation could arise, as well as the point with regard to the trespasser, with which I dealt in my opening remarks, and the fanciful point of the burglar which my hon. and learned Friend the Member for Northwich (Mr. J. Foster) put not very seriously to the Committee. I am sorry the Government cannot accept the Amendment. I hope my right hon. and hon. Friends will not be satisfied and will press the matter to a Division.

Question put, "That the words proposed to be left out stand part of the Clause."

The Committee divided: Ayes, 274; Noes, 243.

Division No. 19.] AYES [6.25 p.m.
Acland, Sir Richard Ayles, W. H. Benson, G.
Adams, Richard Bacon, Miss A. Beswick, F.
Albu, A. H. Baird, J. Bing, G. H. C.
Allen, A. C. (Bosworth) Balfour, A. Blenkinsop, A.
Anderson, A. (Motherwell) Barnes, Rt Hon. A. J. Blyton, W. R.
Attlee, Rt. Hon. C. R. Bartley, P. Boardman, H.
Awbery, S. S. Benn, Hon A. N. Wedgwood Booth, A.
Bottomley, A. G. Hayman, F. H. Pearson, A.
Bowles, F. G. (Nuneaton) Henderson, Rt. Hon. A. (Rowley Regis) Peart, T. F.
Braddock, Mrs. E. M. Herbison, Miss M. Poole, Cecil
Brockway, A. Fenner Hewitson, Capt M. Popplewell, E.
Brook, D. (Halifax) Hobson, C. R. Porter, G.
Brooks, T. J. (Normanton) Holman, P. Price, M Philips (Gloucestershire, W.)
Broughton, Dr. A. D. D. Holmes, H. E. (Hemsworth) Proctor, W. T.
Brown, George (Belper) Houghton, Douglas Pryde, D. J.
Brown, T J (Ince) Hoy, J Pursey, Commander H
Burke, W. A Hubbard, T Rankin, J
Burton, Miss E Hudson, J. H. (Ealing, N.) Rees, Mrs. D.
Butler, H. W (Hackney, S.) Hughes, Hector (Aberdeen, N.) Reeves, J.
Callaghan, James Hynd, H. (Accrington) Reid, T. (Swindon)
Carmichael, James Hynd, J. B. (Attercliffe) Reid, W. (Camlachie)
Champion, A. J. Irvine, A. J. (Edge Hill) Rhodes, H.
Chetwynd, G R Irving, W. J. (Wood Green) Richards, R.
Clunie, J Isaacs, Rt. Hon. G. A. Robens, A.
Cocks, F S. Janner, B Roberts, Emrys (Merioneth)
Coldrick, W Jay, D. P. T. Roberts, Goronwy (Caernarvonshire)
Collick, P Jeger, G. (Goole) Robertson, J. J. (Berwick)
Collindridge, F. Jeger, Dr. S W (St Pancras, S.) Robinson, Kenneth (St. Pancras, N.)
Cook, T. F Jenkins, R. H Rogers, G. H. R (Kensington N.)
Cooper. J (Deptford) Johnson, James (Rugby) Ross, William (Kilmarnock)
Corbet, Mrs F K (Peckham) Johnston, Douglas (Paisley) Royle, C.
Cove, W. G. Jones, D. T. (Hartlepool) Shackleton, E. A. A.
Craddock, George (Bradford, S.) Jones, Frederick Elwyn (West Ham, S.) Shurmer, P. L. E.
Crawley, A Jones, William Elwyn (Conway) Silverman. J. (Erdington)
Crosland, C A R Keenan, W. Silverman, S. S (Nelson)
Crossman, R H S Kenyon, C. Simmons, C. J.
Cullen, Mrs. A King, H. M. Slater, J.
Daines, P Kinley, J. Smith, Ellis (Stoke, S.)
Dalton, Rt Hon. H Kirkwood, Rt. Hon. D. Smith, H. N. (Nottingham. S.)
Darling, G (Hillsboro') Lever, L. M (Ardwick) Snow, J. W.
Davies, A Edward (Stoke, N) Lever, N. H (Cheetham) Sorensen, R. W.
Davies, Ernest (Enfield, E.) Lewis, A. W J. (West Ham, N.) Soskice, Rt. Hon. Sir F.
Davies, Harold (Leek) Lindgren, G S. Sparks, J. A.
Davies, S O. (Merthyr) Lipton, Lt -Col. M Steele, T
de Freitas, Geoffrey Logan, D. G. Stewart, Michael (Fulham, E.)
Deer, G Longden, F. (Small Heath) Strachey, Rt. Hon. J
Delargy, H. J McAllister, G. Strauss, Rt. Hon G. R (Vauxhall)
Dodds, N. N. MacColl, J. E. Stross, Dr. B.
Donnelly, D Macdonald, A. J. F (Roxburgh) Summerskill, Rt. Hon. Edith
Driberg, T E. N McGhee, H. G. Sylvester, G. O.
Dye, S McGovern, J Taylor, H. B. (Mansfield)
Ede, Rt Hon J C McInnes, J. Taylor, R. J. (Morpeth)
Edelman, M Mack, J. D. Thomas, D. E. (Aberdare)
Edwards, John (Brighouse) McKay, J. (Wallsend) Thomas, George (Cardiff)
Edwards, Rt. Hon. N. (Caerphilly) McLeavy, F. Thomas, I O. (Wrekin)
Edwards, W J (Stepney) MacMillan, M. K. (Western Isles) Thomas, I. R (Rhondda W.)
Evans, Albert (Islington, S.W.) McNeil, Rt. Hon. H. Thurtle, Ernest
Evans, E (Lowestoft) MacPherson, Malcolm (Stirling) Timmons, J.
Evans, S. N (Wednesbury) Mallalieu, E. L. (Brigg) Tomney, F.
Ewart, R Mallalieu, J. P. W. (Huddersfield, E.) Turner-Samuels, M.
Fernyhough, E Mann, Mrs. J. Ungoed-Thomas, A L
Field, Capt W J Manuel, A. C. Vernon, Maj. W F
Finch, H. J Marquand, Rt. Hon. H. A. Viant, S. P
Fletcher, E G. M. (Islington, E.) Mathers, Rt. Hon. George Wade, D. W.
Follick, M Mellish, R J Wallace, H. W.
Foot, M M. Messer, F Webb, Rt. Hon M. (Bradford, C.)
Forman, J. C Middleton, Mrs. L Weitzman, D.
Fraser, T (Hamilton) Mikardo, Ian Wells, P. L. (Faversham)
Freeman, J (Watford) Mitchison, G. R. Wells, W T. (Walsall)
Gaitskell, Rt. Hon H. T. N. Moeran, E. W. West, D G.
Ganley, Mrs. C. S. Monslow, W. Wheatley, Rt. Hon John (Edinb'gh, E.)
George, Lady M. Lloyd Moody, A. S. While, Mrs. E. (E. Flint)
Gibson, C. W Morgan, Dr. H. B. While, H (Derbyshire. N. E.)
Gilzean, A. Morley, R. Whiteley, Rt. Hon W
Glanville, J. E. (Consett) Morris P. (Swansea W.) Wilkes, L.
Gooch, E. G Morrison, Rt. Hon. H (Lewisham, S.) Willey, F. T. (Sunderland)
Greenwood, A. W. J. (Rossendale) Mort, D. L. Willey, O. G. (Cleveland)
Grenfell, D. R. Moyle, A. Williams, D. J. (Neath)
Grey, C. F. Mulley, F. W. Williams, Rev. Llywelyn (Abertillery)
Griffiths, D. (Rother Valley) Murray, J. D. Williams, Ronald (Wigan)
Griffiths, Rt. Hon. J. (Llanelly) Nally, W. Williams, Rt. Hon. T (Don Valley)
Griffiths, W. D. (Exchange) Neal, H. Williams, W. T. (Hammersmith, S.)
Grimond, J. Noel-Baker, Rt. Hon. P. J. Wilson, Rt. Hon. J. H. (Huyton)
Hall, Leslie (Oldham, W.) Oliver, G H Winterbottom, I. (Nottingham, C.)
Hall, J. (Gateshead, W.) Orbach, M. Winterbottom, R. E. (Brightside)
Hall, Rt. Hn. W. Glenvil (Colne Valley) Padley, W E. Wise, Major F. J.
Hamilton, W. W. Paling, Rt. Hon. Wilfred (Dearne V'lly) Woodburn, Rt. Hon. A
Hardman, D. R Paling, Will T. (Dewsbury) Wyatt, W L.
Hardy, E. A. Pannell, T. C. Yates, V. F.
Hargreaves, A. Pargiter, G. A Younger, Hon. Kenneth
Harrison, J. Parker, J
Hastings, Dr. Somerville Paton, J TELLERS FOR THE AYES:
Mr. Hannan and Mr. Wilkins.
NOES
Alport, C. J. M. Garner-Evans, E. H. (Denbigh) Nicholson, G.
Amery, J. (Preston, N.) Gates, Maj. E. E. Noble, Comdr. A. H. P.
Amory, D. Heathcoat (Tiverton) Glyn, Sir R. Nugent, G. R. H.
Arbuthnot, John Gomme-Duncan, Col. A. Nutting, Anthony
Ashton, H. (Chelmsford) Grimston, Hon. J. (St. Albans) Oakshott H. D
Astor, Hon. M. Grimston, R. V. (Westbury) Odey, G. W.
Baker, P. Hare, Hon. J. H. (Woodbridge) O'Neill, Rt. Hon. Sir H.
Baldwin, A. E. Harris, F. W. (Croydon, N.) Ormsby-Gore, Hon. W. D.
Banks, Col. C. Harris, R. R. (Heston) Orr, Capt. L. P. S.
Baxter, A. B. Harvey, Ian (Harrow, E.) Orr-Ewing, Charles Ian (Hendon, N.)
Beamish, Maj. T. V. H. Hay, John Orr-Ewing, Ian L. (Weston-super-Mare)
Bennett, Sir P. (Edgbaston) Head, Brig. A. H. Peake, Rt. Hon. O.
Bennett, R. F. B. (Gosport) Headlam, Lieut.-Col. Rt. Hon. Sir C. Peto, Brig. C. H. M.
Bennett, W. G. (Woodside) Heald, L. F. Pickthorn, K.
Bevins, J. R. (Liverpool, Toxteth) Heath, E. R. Price, H. A. (Lewisham, W.)
Bishop, F. P. Hicks-Beach, Maj. W. W Prior-Palmer, Brig. O.
Black, C. W. Higgs, J. M. C. Profumo, J. D.
Boles, Lt.-Col. D. C. (Wells) Hill, Mrs. E. (Wythenshawe) Raikes, H. V
Boothby, R. Hill, Dr. C. (Luton) Rayner, Brigadier R
Bossom, A. C. Hinchingbrooke, Viscount Remnant, Hon. P.
Bower, N. Hirst, Geoffrey Robertson, Sir D. (Caithness)
Boyd-Carpenter, J. A. Hollis, M. C. Robson-Brown, W. (Esher)
Boyle, Sir Edward Hope, Lord J. Rodgers, J. (Sevenoaks)
Bracken, Rt. Hon. Brendan Hopkinson, H. L. D'A. Roper, Sir H.
Braine, B. Hornsby-Smith, Miss P. Ropner, Col. L
Braithwaite, Lt.-Comdr. J. G. Horsbrugh, Rt. Hon. Florence Ross, Sir R. D. (Londonderry)
Bromley-Davenport, Lt.-Col. W Howard, G. R. (St. Ives) Russell, R. S.
Brooke, H. (Hampstead) Hudson, Sir Austin (Lewisham, N.) Ryder, Capt. R. E. D
Browne, J. N. (Govan) Hudson, Rt. Hon. R. S. (Southport) Sandys, Rt. Hon. D.
Buchan-Hepburn, P. G. T. Hurd, A. R. Scott, Donald
Bullock, Capt. M. Hutchinson, Geoffrey (Ilford, N.) Shepherd, W. S. (Cheadle)
Bullus, Wing Commander E. E. Hutchison, Lt.-Com. Clark (E'b'rgh W.) Smiles, Lt.-Col. Sir W
Burden, Squadron Leader F. A Hylton-Foster, H. B. Smith, E. Martin (Grantham)
Butcher, H. W Jeffreys, General Sir G. Smithers, Peter (Winchester)
Butler, Rt. Hon. R. A. (S'ffr'n W'ld'n) Jennings, R. Smyth, Brig. J. G. (Norwood)
Carr, Robert (Mitcham) Johnson, Howard S. (Kentptown) Snadden, W. McN
Carson, Hon, E. Jones, A. (Hall Green) Soames, Capt. C
Channon, H. Kaberry, D. Spearman, A. C. M.
Churchill, Rt. Hon. W. S. Kerr, H. W. (Cambridge) Spence, H. R. (Aberdeenshire, W.)
Clarke, Col. R. S. (East Grinstead) Lancaster, Col. C. G. Spens, Sir P. (Kensington, S.)
Clarke, Brig. T. H. (Portsmouth, W.) Langford-Holt, J Stanley, Capt. Hon R. (N. Fylde)
Colegate, A. Law, Rt. Hon. R. K. Stevens, G. P.
Conant, Maj. R. J. E. Legge-Bourke, Maj. E. A. H Steward, W. A. (Woolwich, W.)
Cooper, A. E. (Ilford, S.) Lennox-Boyd, A. T. Stewart, J. Henderson (Fife, E.)
Cooper-Key, E. M. Lindsay, Martin Stoddart-Scott, Col. M
Corbett, Lieut.-Col. U. (Ludlow) Linstead, H. N. Storey, S.
Craddock, G. B. (Spelthorne) Lloyd, Rt. Hon. G. (King's Norton) Stuart, Rt. Hon. J. (Moray)
Cranborne, Viscount Lloyd, Maj. Guy (Renfrew, E.) Summers, G. S.
Crookshank, Capt. Rt. Hon. H. F. C Lloyd, Selwyn (Wirral) Sutcliffe, H.
Cross, Rt. Hon. Sir R. Lockwood, Lt.-Col. J. C. Taylor, W. J. (Bradford, N.)
Crosthwaite-Eyre, Col. O. E. Longden, G. J. M. (Herts, S.W.) Teeling, William
Crowder, Capt. John F. E. (Finchley) Low, A. R. W. Thomas, J. P L. (Hereford)
Crowder, F. P. (Ruislip—Northwood) Lucas, Major Sir J. (Portsmouth, S.) Thompson, K. P. (Walton)
Cundiff, F. W. Lucas, P. B. (Brentford) Thompson, R. H. M. (Croydon, W.)
Davidson, Viscountess Lucas-Tooth, Sir H. Thorneycroft, G E. P. (Monmouth)
Davies, Nigel (Epping) Lyttelton, Rt. Hon. O. Thornton-Kemsley, C N.
de Chair, S. McCallum, Maj. D. Thorp, Brigadier R. A. F.
Deedes, W. F. McCorquodale, Rt. Hon. M. S. Turner, H. F. L
Digby, S. Wingfield Macdonald, Sir P. (I. of Wight) Turton, R. H.
Dodds-Parker, A D Mackeson, Brig. H. R Tweedsmuir, Lady
Donner, P W. McKibbin, A. Vane, W. M. F.
Douglas-Hamilton, Lord M McKie, J. H. (Galloway) Vaughan-Morgan, J. K.
Drayson, G. B Maclay, Hon. J S Wakefield, E. B. (Derbyshire, W.)
Drewe, C. Maclean, F. H. R. Walker-Smith, D. C.
Dugdale, Maj. Sir T (Richmond) MacLeod, Iain (Enfield, W.) Ward, Miss I. (Tynemouth)
Duncan, Capt. J. A. L. MacLeod, John (Rose and Cromarty) Waterhouse, Capt. Rt. Hon C
Dunglass, Lord Macmillan, Rt. Hon. Harold (Bromley) Watkinson, H
Duthie, W. S Macpherson, N. (Dumfries) Watt, Sir G. S. Harvie
Eccles, D. M. Maitland, Comdr. J. W. Webbe, Sir H. (London)
Eden, Rt. Hon. A Manningham-Buller, R. E. Wheatley, Major M. J. (Poole)
Elliot, Lieut.-Col. Rt. Hon. Walter Marlowe, A. A. H. White, J. Baker (Canterbury)
Erroll, F. J. Marples, A. E. Williams, C. (Torquay)
Fisher, Nigel Marshall, D. (Bodmin) Williams, Gerald (Tonbridge)
Fletcher, W. (Bury) Marshall, S. H. (Sutton) Williams, Sir H. G. (Croydon, E.)
Fort, R. Maudling, R. Wills, G.
Foster, J. G. Mellor, Sir J. Wilson, Geoffrey (Truro)
Fraser, Sir I. (Lonsdale) Molson, A. H. E. Winterton, Rt. Hon. Earl
Fyfe, Rt. Hon. Sir D. P. M. Morrison, Maj. J. G. (Salisbury) Wood, Hon. R.
Gage. C. H. Morrison, Rt. Hon. W. S. (Cirencester) York, C.
Galbraith, Cmdr. T. D. (Pollok) Mott-Radclyffe, C. E.
Galbraith, T. G. D. (Hillhead) Nabarro, G. TELLERS FOR THE NOES:
Gammans, L. D. Nicholls, H. Mr. Studholme and Mr. Vosper.

6.30 p.m.

The Solicitor-General

I beg to move, in page 2, line 42, at the end, to insert: Provided that a person shall not be deemed for those purposes at any time—

  1. (i) to have been living in the property or a part thereof in continuation of the tenancy if he was then living there in right of a tenancy or agreement (whether express or implied) granted, made or renewed for a consideration which included the payment of a premium or of a sum in the nature of a premium; or
  2. (ii) to have been living in a part of the property in continuation of the tenancy if another person was then in possession of some other part of the property, unless that other person was the former tenant or a person claiming under him or a person holding over after the coming to an end of a sub-tenancy created (immediately or derivatively) out of the tenancy."
Doubt has been expressed as to whether a case in which a fixed tenant stays on and pays a premium for the renewal of his lease would be covered by subsection (4, a). As hon. Members know, the object of subsection (4, a) is to exclude from the benefits of the Clause tenants who are staying on at a higher rent than the rent which they paid under the expired lease. Doubts have been raised as to what the situation would be if the tenant stayed on at the same rent but had paid a premium for the renewal of his tenancy. As the Bill stands at the moment, probably upon its true construction, such a case would not come within subsection (4, a).

During the Second Reading debate, those doubts having been indicated, I undertook that I would introduce an Amendment to set aside all possible ambiguity. The first sub-paragraph of the new proviso which I seek to insert is designed with that purpose. Hon. Members will see that it provides that a person shall not be deemed to be living in continuation of the tenancy if he has paid a premium for the renewal. That is the object of the first part of the proviso.

The object of the second part of the proviso is this. There may be a case in which a tenancy extends, say, to a terrace of houses. The lease may embrace 20 houses. The ex-tenant may, after the expiration of the long lease, be staying on and living only in one of those houses. This is a case which is, perhaps, rather unusual, but it indicates the sort of circumstances which the Government have in mind. After the lease has come to an end, and while the ex-tenant is staying on in one of the houses, the landlord may have resumed possession of the other 19, and he may have demolished some of them or he may have sublet some of them to other tenants.

It is quite impossible, as a matter of practice, to restore the situation to what it would have been if all those 20 houses still remained part of the tenancy granted for the extended two years to the ex-tenant. Therefore, we felt that we had to provide for that sort of case, and we do so by saying that amongst persons who shall not be deemed to be living in continuation of the former lease within the meaning of the first subsection of the Clause shall be tenants who only live on in part of it, the remainder of it having been occupied by some other person, say the landlord, or some other tenant altogether. That is the object of the proviso which we seek to introduce.

Mr. J. Foster

Could the right hon. and learned Gentleman explain how paragraphs 2 and 3 of the First Schedule fit into this Amendment? They appear to be difficult to read together.

The Solicitor-General

I do not really think they affect this case. It is provided by paragraph 2 that where we get a continued tenancy—that is to say, where a situation arises under which a lease is extended for the extra two years—that shall be in substitution of any other contractual bargain which the ex-tenant may have entered into with his landlord. The object is to see to it that an ex-tenant is not called upon to pay two lots of rent, namely, the rent provided for in the continued tenancy—the tenancy continued by the provisions of the Clause—and the rent provided for in the hypothetical circumstances by the contract that he has actually entered into with his landlord. That paragraph deals with a different case altogether.

Paragraph 3 of the First Schedule was the paragraph which gave rise to the doubt as to whether a case of a premium would be included in Clause 2 (4, a), and because it was thought that conceivably the wording of that paragraph might be appropriate to include a case where a premium was paid, I now seek to introduce the clarifying proviso to make it perfectly clear that the receipt of any penalty, mesne profits or other sum. which must mean other like sum, is not intended to cover, and as the proviso is now introduced does not in fact cover, the case where a premium was paid.

Mr. J. Foster

It may be due to my stupidity, but I find it difficult to understand the right hon. and learned Gentleman. I understood the first part of his remarks—that paragraph 3 of the First Schedule raised the doubt. If paragraph 3 is to be amended, that explains the situation; but unless it is, the two Clauses will be in opposition to each other. In paragraph 3 of the First Schedule it says any penalty, mesne profits or other sum … shall be brought into account. If any penalty shall be brought into account, then that is a fact; and one proviso does not override the other. But what penalty—or premium, if the Solicitor-General likes that better—shall be brought into account if his new Amendment says that people who pay premiums shall not be covered by the Act? That seems to me very difficult to understand. I should like to know what kind of premiums are covered by paragraph 3 of the First Schedule which shall apply to people covered by this Bill when the Amendment says that people who pay premiums will not be covered by the Bill. I expect that there is an answer, but it is difficult to know what the answer is.

The Solicitor-General

The answer is that the words penalty, mesne profits or other sum are not appropriate to cover the case of the premium at all, and therefore the premium does not have to be brought into account. Supposing there is a case where a tenant has paid mesne profits. Those mesne profits which have been paid by the tenant are to be set off against the rent which is paid under the extending tenancy. In so far as there was a possible doubt as to whether the words in paragraph 3 could be said to be appropriate to cover a premium, we are seeking to make the matter pellucidly clear by introducing the proviso.

Mr. Foster

The doubt still remains in my mind because paragraph 3 of the First Schedule refers to penalty, mesne profits or other sum. That seems to be a wide expression. If we look at the Amendment we find that it says the payment of a premium or of a sum in the nature of a premium. Both those expressions are very wide and, it seems to me, overlap. Let me give an instance where the tenant obtained an extension of his lease—say 19 or 20 years ago—on the payment of an arbitrary sum of money, which would seem to me to come under a "penalty" It is not a premium in one sense, but the landlord has extended on a penalty. For instance, the landlord may have said. "I will extend your lease if you will pay for the erection of certain buildings at a sum to be agreed between us." Perhaps the man has to erect an outhouse for £400.

That case seems to be covered under paragraph 3 of the First Schedule and also under the Amendment, because it is something in the nature of a premium; and I do not see how the right hon. and learned Gentleman can say that the two things are mutually exclusive. If the landlord says, "You have to pay a sum in the nature of a penalty," I do not see why that is different from something in the nature of a premium. I do not see what is the difference between a penalty and a premium.

The Solicitor-General

The contrast is between the case where a tenancy continues because of paragraph 3 and the case in which the tenancy does not continue because the proviso says that the payment of a premium shall prevent it from so doing. They are dealing with altogether different cases. Where we find that a sum is paid, such as mesne profits, in respect of the occupation of the premises, then all the paragraph says is that it is to be set off against the rent. The proviso is dealing with a case where a premium is paid; the tenancy is, therefore, not continued. The paragraph is dealing with any payment which has been made in the nature of rent in respect of the occupation of the premises and which has, accordingly, under the terms of the paragraph, to be set off against the rent.

Mr. Selwyn Lloyd

Will it not be necessary for the right hon. and learned Gentleman to amend paragraph 3? It is very difficult to dispute the proposition that a premium is a sum paid to a landlord in respect of occupation. Does not paragraph 3 of the Schedule need amendment? If the right hon. and learned Gentleman will say that he will amend it, we might be able to get on.

The Solicitor-General

I do not think it does because, after all, the proviso is in respect of the preceding enactments of the Clause which, by reference, incorporate the Schedule. The Clause and the Schedule have, therefore, to be read together and are subject to the proviso in which, where we find a premium, there is to be no continued tenancy. I do not think any change is necessary.

6.45 p.m.

Mr. Leslie Hale

I am still worried about this, and I apologise to my right hon. and learned Friend for not fully understanding what the Amendment does. It seems to me that there is confusion throughout the Clause about the word "tenancy," which keeps popping up and which sometimes refers to the original tenancy but which clearly, in subsection (4), refers to a new tenancy granted to carry on after expiry. It seems to me, on reading it, that if we take a case under subsection (4, a), which says: He was then living there in right of a tenancy or agreement (whether expressed or implied) at a rent, or in consideration of a payment in the nature of rent, of the like amount as the rent payable immediately before the date of continuation, that must refer to a new tenancy. That new tenancy is quite a different tenancy from that to which we refer in the main Clause, which is retaining the granting of a 99 years' lease—the continuation of the assignment of it. If that be so, I venture to submit that this Clause will not touch at all the question of the payment by the tenant to the landlord of a premium; it will catch people who have had to pay a premium to the outgoing tenant, which is quite common. The outgoing tenant may have said, "You can have the last three or four years of the lease if you pay £50 or if you buy the furniture at my price"; and the man is now occupying the premises by virtue of a tenancy agreed with the outgoing tenant in respect of which he has paid a premium.

I may be wrong—and I apologise to the Committee if I am—but I certainly think that is brought in by the wording of the Clause, and if it is, I do not think it should be. I should like to ask my right hon. and learned Friend to look at the matter again.

The Solicitor-General

I am always grateful for any suggestions of alteration to the drafting which might improve the Bill, from whatever part of the Committee they come, and I say that with very great respect to my hon. Friend the Member for Oldham, West (Mr. L. Hale), and others who have spoken. I do not think my hon. Friend's apprehension is well-founded because, if we look at subsection (4, a), the distinction between the tenancy which comes to an end at the date of the continuation and the new tenancy under which the tenant continues to live in the premises is, as a matter of drafting, made sufficiently clear. But I will certainly look at the drafting in the light of all the arguments which have been advanced.

Amendment agreed to.

The Solicitor-General

I beg to move, in page 3, line 3, at the end, to add: (6) In this section the expression "the former tenant" means the person who was the tenant immediately before the date of continuation. This is consequential on the Amendment which has already been made to page 2, line 12.

Mr. J. Foster

This does refer back to the family of a tenant as long ago as 20 years? That is theoretically possible?

The Solicitor-General

Yes.

Amendment agreed to.

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