First Schedule.—(PROOF OF PAST REPAIRS BY LANDLORD.) (Hansard, 21 July 1954)

Commander Galbraith
I beg to move, "That this House doth agree with the Lords in the said Amendment."
This is a drafting Amendment to eliminate the possibility of ambiguity. We altered the wording in the first paragraph, but neglected to do so in the second paragraph. The Amendment corrects the mistake.

Commander Galbraith
I beg to move, "That this House doth agree with the Lords in the said Amendment."
Before the Amendment was accepted in another place, the First Schedule provided that for the purpose of satisfying the expenditure test as a proof of past repairs in a case where two or more dwelling-houses were contained in the same building, floor area was to be taken as the basis for apportioning the amount of repairs expenditure applicable to each house. The Amendment makes the First Schedule say that the basis of apportionment between the various houses shall be floor area or rateable value.
The point was raised by the hon. and learned Member for Paisley (Mr. D. Johnston) during Committee. He was of opinion that rateable value should be substituted for floor area. He pointed out what we all agree, that it would not involve the work of a skilled person, and that it was fixed and certain and easy of reference.
At that time the Government felt that we had to take account of those cases which undoubtedly exist where rateable value would produce an inequitable result. We have looked at the matter further, and in view of what the hon. 1498 and learned Gentleman said and the fact that where repairs have been apportioned in the past between different owners the rateable value was a customary basis of apportionment; that rateable value can easily be ascertained; and that the use of floor area will involve the landlord in certain cases in employing skilled persons and, therefore, in a considerable amount of expense which it may not be reasonable to expect from certain of the owners, we thought it right to accept the Amendment.

§ Mr. Douglas Johnston (Paisley)
The suggestion that the Government have put forward the Amendment because of what I said in Committee is very flattering, but I have difficulty in understanding how the arguments which I put forward then, and which were turned down so contemptuously by the Joint Under-Secretary at that time, should now persuade him. I have heard it suggested—perhaps he will tell me whether it is so—that strong representations were made by certain societies and others, particularly in Glasgow, against the Government's drafting, and that those societies and others were substantially factors in Glasgow and the West of Scotland. I am given to understand that the reason why the Government want the Amendment is that, and not the arugments which I put forward earlier.
We now have the curious situation that the landlord will be given the best of two worlds. He will have either the floor area basis or the rateable value basis. I cannot say that I think that that is wholly advisable, particularly as the right hon. and gallant Gentleman said that in certain circumstances inequitable results might follow from the use of the rateable value basis. The reason why he rejected the rateable value basis when I suggested it was the inequitable results. I hope he appreciates that inequitable results may still follow, because it is entirely at the option of the landlord which method is used—the floor area or the rateable value.
There is a third point, which I am sure will appeal to the right hon. Member for Kelvingrove (Mr. Elliot), who has spoken strongly against the use of the rateable value. It is that in certain instances it may impose an additional liability on shopkeepers who are tenants of shops in a tenement. A further complication 1499 is introduced by Clause 35. As the right hon. and gallant Gentleman knows, the Bill, and that clause in particular, introduces an additional complication into our rating system. We have this curious situation, taking the case of a shop which is part of a tenement: a different basis will be used, because for the shop the gross rateable value will be adopted and for the dwelling houses within it the net rateable value will be used. What is proposed to be inserted by another place is "or rateable value," and rateable value is defined in Clause 35 as the gross annual value thereof after the deduction of such part of the rent thereof as is specified in the following provisions of this section. What is specified in the following subsections is the increase provided for by the earlier parts of the Bill.
I am sure that the House requires more cogent reasons for accepting this Amendment than any which have been advanced so far.

§ Mr. Woodburn
If an argument develops as to whether it shall be the floor area or the rateable value, who settles it? As far as I can see, the Clause does not say who settles it. Is it to be in the opinion of the tenant or in the opinion of the landlord or in the opinion of the Secretary of State? If the tenant says that he will benefit by one method while the landlord says that he will benefit by the other method, who is to settle the argument?

§ Mr. Hector Hughes
This seems to me to extend both the rights and the powers of the landlord, and either the Secretary of State or the Lord Advocate should explain whether it does so or whether it does not. It should also be explained to us who is to decide which shall be the test. A new test is to be added to the Clause. The present test is that of the floor area— "the like proportion to so much of the cost of that work as was borne by the landlord of that dwelling-house as the floor area of that dwelling-house bears to the total floor areas of all the dwelling-houses contained as aforesaid of which that landlord is the landlord … That is a complicated phrase, and the insertion of these new words not only makes it still more complicated but also adds a new test. The test is now to be the floor area or the rateable value, and there is not a word in the Clause 1500 to indicate who is to decide which test is to be applied. Is it to be the landlord? If it is, then the Amendment gives him added powers and added rights with no corresponding addition to the powers and rights of the tenant.
It was obvious as we waded through the Bill in Committee that it was a landlords' Bill, giving extra powers to landlords and enhancing their rights, and giving very little to the tenant. Here is an instance where the Bill gives added rights and powers to the landlord but no corresponding rights or powers to the tenant. There is not a word as to who is to exercise these powers or how they are to be exercised. This complicated Clause should be more clearly explained by the Secretary of State, because he will have control of the authorities that will be administering it. I ask the right hon. Gentleman for the explanation. It is not a legal matter for the Lord Advocate, and I hope that the Secretary of State will give the House the benefit of his wisdom.

§ Mr. McInnes
I am glad that my hon. and learned Friend the Member for Paisley (Mr. D. Johnston) raised the issues that are involved in the Amendment. Not only does the net rateable value apply to houses and the gross rateable value to shops or offices, but I want to visualise the situation that inevitably would arise in the case of a tenemental property.
Conceivably, the landlord in the case of houses would be disposed to accept the principle of the floor area, and in the same tenemental property he would apply the gross rateable value when it was a matter of shops or offices. He would adopt that procedure because it would be far more advantageous for him. On the other hand, it is possible that he might reverse the procedure and apply the net rateable value in the case of the houses and the floor area in respect of shops or offices.
Is it possible, under the Amendment, for a landlord to take part of the building at the floor area for determination purposes and the remaining part at either net or gross rateable value, or can he apply the three elements that are involved in respect of the one building? There will have to be all sorts of mathematical calculations in order to arrive at the justification for the increased rent that is payable to the landlord.
1501 There is no landlord in Glasgow who is capable of making all these mathematical calculations, because they have confessed that they are not capable of keeping even books or records. The Government ought not to embarrass them in this fashion by asking them to become engaged in a proposition of this kind. I hope that the right hon. Gentleman will clarify the position, if not for me, at least for the landlords.

§ Mr. William Ross (Kilmarnock)
I hope that an effort will be made to clarify and not "Clydefy" the position. So far, the arguments of the Joint Under-Secretary have been unconvincing. When this matter was raised at an earlier stage it was resisted by the Under-Secretary because it might lead to unfairness as between one tenant and another.
Floor space was to be taken as the criterion in matters of expense, but now the Government come forward with this Amendment from another place for insertion in the Clause. The Under-Secretary tells us that the justification for it is purely and simply convenience and consideration for what it might cost the landlord. We have to balance the two arguments.
I am a man who is easily convinced. I was convinced by the speech of the Joint Under-Secretary that he had at heart a desire for justice as between one tenant and another. Has he lost sight of that altogether? When it comes to a contest of the convenience of the landlord and the expense to the landlord, he wipes out the equality as between one tenant and another; he wipes that out, and goes for the landlord every time.

Commander Galbraith
I am grateful to the hon. Member for Hamilton (Mr. T. Fraser) for indicating that he has been in such close touch with the factors; for it is obvious from what he says that he knows very well what is going on. I would ask the House to remember what this is all about. It is simply the matter of apportionment in reference to the expenditure test and surely it follows, if we are taking rateable value, that that must be the present rateable value, because the rent cannot be raised until the expenditure test has been satisfied. So there cannot be a case of there being some difficulty in knowing what rateable value to take, and the hon. Gentleman's 1502 reference to additional burdens on the shops cannot be a tenable argument because there is no rent increase in regard to the shops.
The right hon. Member for East Stirling (Mr. Woodburn) asked a question which has been repeated by his hon. and learned Friend the Member for Aberdeen, North (Mr. Hector Hughes) and my answer is that the House will recall that the landlord has to serve the notice of increase; and that includes the declaration of expenditure. The landlord is allowed by the Schedule to do one thing or the other; but he cannot do both. He can use the rateable value, or he can use the floor area, but he cannot use both.

§ Mr. Woodburn
Supposing the tenant, knowing that either of these things is possible and, knowing that thinks that he has had a wrong deal by what the landlord has done, can the tenant then challenge the matter because it says, "either/or"?

Commander Galbraith
It is in the opinion of the landlord because it is he who, as I have said, has to serve the notice. I think that really deals with all the points which have been raised.

§ Mr. Johnston
Would the Joint Under-Secretary not agree that shops are brought in by subsection 3 (a), where it states that where a building contains premises other than a dwelling-house … those premises shall be treated as if they were a dwelling-house. Indeed, I should have thought that one of the purposes of subsection 3 was, in certain circumstances, to bring shops and offices into this sphere. Is that not so?

Commander Galbraith
They only come in in relation to the apportionment of expenditure.

§ Mr. T. Fraser
I hope that we shall get a further explanation about this Amendment from the Government; otherwise, we could not possibly accept it. The Secretary of State is given power in this paragraph of the First Schedule to make regulations laying down the method of ascertaining the floor area for the purpose of allocating the cost of works among a number of dwellinghouses. In Committee we thought that rateable value would have been a good yardstick to employ. The right hon. and gallant Gentleman may object to my 1503 hon. and learned Friend the Member for Paisley (Mr. D. Johnston) accusing him of treating him with contempt during the Committee stage, but we had very acrimonious discussions in the Committee. Not infrequently, the right hon. and gallant Gentleman lost his temper and this was one of those occasions.
The right hon. and gallant Gentleman says that if this Amendment is agreed to the landlord will determine whether he will use floor area or rateable value. The Joint Under-Secretary says that the landlord is the person who serves the notice, but the right hon. and gallant Gentleman is quite incapable of pointing to any part of the Schedule which says that the landlord will have the right to choose between those alternatives. If, after these Amendments, he had added the words, "as decided by the landlord" even that would be quite inadequate.
If the right hon. and gallant Gentleman or the Lord Advocate will look at the Bill he will see that paragraph (b) at the bottom of page 37 says: where a building contains premises other than a dwelling-house which are occupied otherwise than by a tenant thereof, the owner of the premises shall be treated as if he were the landlord thereof; Who is that? Is it not the owner of the shop on the ground floor of the tenement building? That person is to be treated as the landlord. Is he to decide whether it shall be floor area or rateable value?
Obviously, the right hon. and gallant Gentleman thought it was the landlord of the house upstairs, but his own Schedule says that the shopkeeper is also a landlord and the two landlords may not agree. Since the Committee stage the right hon. and gallant Gentleman has discovered that if floor space is taken some landlords may be involved in considerable expense in having measurements made and he thinks he is giving the landlords the alternative. But, if he reads this Schedule he will find that there may well be two or more landlords.
In Glasgow, there are many tenement buildings where there are half a dozen shops under the same roof with six different owners. Incidentally, there will be some houses within the tenement which are owner-occupied. We leave them out of account, but we must take into account those shopkeepers who own houses on the street level. The First 1504 Schedule, which we are seeking to amend, says that each of those persons shall be treated as a landlord. The right hon. and gallant Gentleman says the landlord will decide whether they will take floor area or rateable value. Almost always—always I should think in Glasgow—the shopkeeper will be better off if floor area is taken.

§ Mr. J. Stuart
Why did the hon. Member and his hon. Friends suggest rateable value if they are trying to meet the problem and not to be stubborn?

§ Mr. T. Fraser
The Secretary of State asks me to tell the House why we suggested rateable value in the first place. I could do so, but I should think the House would be worried if I did. If the Secretary of State happened to be absent from the Committee when long explanations were given why we wanted rateable value, he might have given the Scottish Opposition the courtesy of reading why we wanted rateable value in the first case. The Secretary of State did not listen in Committee and he is not listening now. The Secretary of State cannot listen at all.

§ Mr. J. Stuart
The hon. Gentleman has no right to say that. I have listened to every word he has said. I have the Committee report in front of me.

§ Mr. T. Fraser
The right hon. Gentleman is smarter than I thought he was. He keeps talking all the time. Perhaps he is able to talk and listen at the same time.
If I have not made myself clear, I will have another shot. I hope the Secretary of State will follow me. It may be my fault he has not followed me so far. I would have thought it would be better to have, either floor area, or rateable value, but not both. What he is proposing in this Amendment, at least he thinks he is proposing it, is that the landlord will have the choice of rateable value or floor area. I was saying that, the shop keeper on street level, on the ground floor, will always be favourable to floor area being taken instead of rateable value.
The Joint Under-Secretary gave reasons why the landlord of the dwelling-house upstairs would be favourable to rateable value being taken, because that would save them some expense. I think 1505 that this Amendment, in its present form, with the explanations that have been given, is not acceptable and I hope it will not be acceptable to the House, because it is not clear who will decide, if there is a difference of opinion, whether rateable value or floor area should be to ken.
The landlord of the dwelling-house, will always favour rateable value and the shop keeper downstairs will always favour floor area, but, in this Schedule, the landlord upstairs and the shop keeper on the ground floor are both landlords. If these landlords disagree, there is no provision in this Schedule for having the disagreement resolved. That is why we do not like the Amendment in its present form. I would rather have had "floor area," or "rateable value," by itself. We might even have had the choice, if there were some other Amendment made to the Bill, to provide for a system, or method, of resolving a difference of opinion where it arose.
It must be clear to the Government, that there is a difficulty here. I hope this matter will be further explained. It really is impossible to have this Amendment in its present form.

Commander Galbraith
It seems to me that the hon. Gentleman has forgotten some of the arguments that were put forward in the course of our discussions in Committee. Surely he must remember that, where there are different owners, each will have a separate pool for the purposes of the expenditure test. The owner of the shop he was talking about would be a separate landlord. He will have his own part of the expenditure pool, different from that of the landlord of the house. That is where the hon. Gentleman has gone completely wrong. Where there are two owners, each has his separate pool for apportionment. That is the explanation of the whole situation described by the hon. Member for Hamilton (Mr. T. Fraser).

Commander Galbraith
I beg to move, "That this House doth agree with the Lords in the said Amendment."
The Amendment entitles the landlord, or any person he may authorise, subject to certain conditions, to enter any dwelling-house for the express purpose of ascertaining its floor area. I would point out that this is a once-and-for-all purpose. Once the expenditure test has been satisfied there is no need for anyone to take the floor area measurement again.

§ Mr. Johnston
This is eminently sensible, but I am in a little difficulty in reconciling the Amendment with the strong objections which have been put forward from time to time by hon. and right hon. Gentlemen opposite, when they were in opposition, to any right of entry at all. Indeed, recently we had an Act governing rights of entry which provides that in certain cases there may be no right of entry unless there is a warrant granted by a magistrate or a justice of the peace; yet here a landlord is to be able to require entry by the mere service of a notice. This seems a little inconsistent and contradictory of the principle for which the right hon. and gallant Gentleman and his hon. Friends fought so strenuously for so long.

§ Mr. Ross
One or two important points arise. The Amendment refers to The landlord, or any person authorised by him in writing … It is a fact that many tenants have never seen their landlord. They have no clue as to who he is or what his signature looks like. We have heard a lot about Mr. Brady. We have a lot of people of the same type round about Glasgow. I understand that someone in Italy was the landlord of a considerable amount of property in Scotland. We will have this business of someone coming along with a letter which is signed by a landlord who may be living anywhere in any part of the world and he … shall be entitled at reasonable times of the day, on giving twenty-four hours notice in writing to the occupier of his intention, to enter any dwelling-house … 1507 This is going rather far after all that has been said about the rights of the individual. We heard a great deal about the rights of property only yesterday.
The right hon. and gallant Gentleman said that this, of course, is a once-and-for-all right which is being given to the landlord or someone authorised by him. Can he tell me where it says that it will happen only once?

Commander Galbraith
Surely the hon. Gentleman realises that once the expenditure test has been satisfied it will not be necessary to take measurements again.

§ Mr. Ross
This is the kind of trouble we get with the right hon. and gallant Gentleman. He loses control of his temper. If he had taken more trouble, or listened more, during the Committee stage he would have got this Bill into better condition before now. I am glad that the hon. Member for Shettleston (Mr. McGovern) has arrived. If he had been here in time for the last Amendment he would have realised that we have just accepted another Murray MacGregor Amendment.
I am not at all satisfied that what the right hon. Gentleman says is right. I am still not satisfied. The more he smiles the less satisfied I am. I feel the same the more support he gets from the Lord Advocate. Confidence in the interpretation of Scottish law in this House has been shaken by the right hon. and learned Gentleman's arrival here, and his continued appearance here. The sooner we get the other Solicitor-General, whom we have never had the privilege of seeing in this House, who never had the opportunity of getting a seat in this House—

§ Mr. Thomas Steele (Dunbartonshire, West)
He is a landlord.

§ Mr. Hector Hughes
In spite of the facetious remarks about a well-known character who is not an hon. Member of this House, this is not a laughing matter. This is a serious and objectionable Amendment, whatever may have been said about the other Amendments which have passed all too unobtrusively. This is a serious infringement of tenants' rights. The landlord is given the right of entry into the tenant's house. It is a breach of the tenant's sovereignty, and the tenant's house is no longer his castle. 1508 It is true that the Clause gives that right to the landlord to be exercised on 24 hours' notice in writing having been given; but there is not a word in the Clause about the form of the notice, or what the notice in writing is to be. Nor is there indication of how it is to be served on the tenant. Is it to be pinned on the door, pushed under the door, or how is it to be served?

§ Mr. J. Stuart
if the hon. and learned Gentleman feels so strongly about this, why did he consent to it in the Housing (Scotland) Act, 1950, which gives similar power to enter to carry out repairs?

§ Mr. Hughes
The right hon. Gentleman seeks to evade the point which I am putting by bringing in some other Act. We are not discussing that Act. I do not propose to deviate from my course, but to analyse this objectionable Clause and show how dangerous it is.
I have pointed out that there is no protection for the tenant regarding the form of notice. It is to be in writing, but is it to be, as has been suggested, any old letter? How is to be served? Is it to be pinned on the door, or pushed under the door? What evidence will be exacted that a tenant has actually received the notice?
Another serious aspect of the matter is that there is no indication that the tenant's consent will be given, or asked for. The notice will be served on the tenant, and the landlord may force his way in, or send some authorised person. The tenant's consent is not asked for. This is an infringement of the tenant's sovereignty. Like other provisions in the Bill, it is in favour of the landlord and against the tenant.
What is to happen if the landlord serves the notice and the tenant does not consent? There is no provision for that.

§ Mr. Stuart
The tenant can refuse and the landlord then has to go to the sheriff. It is quite simple.

§ Mr. Hughes
What is to happen if, during the essential 24 hours—

§ Mr. McInnes
Can my hon. and learned Friend say how many hours' notice the landlord must give to get out of the house after he is in?

§ Mr. Hughes
I will deviate to deal with that matter. That suggests another very important problem. If the landlord, 1509 or the person authorised by him, enters the house, how long may he stay there? May he stay there for a week or a month? There is no protection for the tenant with regard to that.

§ Mr. Ross
I do not think that my hon. and learned Friend need worry about that. The slums in Glasgow are such that no ore would want to stay in them any longer than necessary.

§ Mr. Hughes
No matter how insanitary the slums may be, the tenants who have to suffer and languish there have their rights; and it is not right that the landlord, or some person authorised by him, should be able to go into the house for a period of uncertain duration. The period is not specified. The landlord, or the person authorised by him, may take it into his head that he wishes to spend his summer holidays there.
There are several very objectionable aspects about this. What is to happen if during the essential 24 hours the tenant is sick and unable to move? Is the landlord to be entitled to force his way in to the sick tenant? What is to happen if the tenant's wife is sick? What is to happen if the tenant is away in hospital? What is to happen if the tenant is a member of this House, and serving in Parliament when the landlord serves the notice? These problems are not dealt with at all.
There is nothing in the Amendment to provide that the person authorised by the landlord shall be a decent person. He may be any scallywag—any Tom, Dick or Harry—who is authorised by the landlord to force his way into the tenant's house and stay there for an unspecified period.

§ Mr. Ross
He may be a Parliamentary Secretary.

§ Mr. Hughes
And how is such a person to be authorised? The more we analyse this Amendment the more objectionable and nasty it seems. Suppose the tenant is a young married man who has to do night work, or has to be away from home, and the landlord, or the person authorised by him, chooses to force his way in when the wife is alone? Is the young wife to be exposed to that kind of thing? I have only to mention that to show that this Amendment is open not only to grave social objections, but to moral objections also. 1510 I hope that the Secretary of State will take back this Amendment and reconsider it.

§ Mr. T. Fraser
While the Government are seeking the answers to the many pertinent questions by my hon. and learned Friend [HON. MEMBERS: "Impertinent"]—they are all very pertinent questions and not at all impertinent—may I say that we are glad to have with us in the House tonight the hon. Lady the Member for Tynemouth (Miss Ward). No doubt she came in precisely for this Amendment, because it was she who had the privilege of piloting through the House the Right of Entry (Gas and Electricity Boards) Act, mentioned by my hon. and learned Friend. The hon. Lady was most concerned to protect the interests of private persons. She was not willing that an electricity or gas board should merely give 24 hours' notice, or two days' notice, or a week's notice to a tenant before a board could get into a house. The hon. lady got a Bill through Parliament which says: No right of entry … shall be exercisable in respect of any premises except—
(a) with consent given by or on behalf of the occupier of the premises, or

(b) under the authority of a warrant granted under the next following section:"
A warrant issued by the court is necessary before a gas or an electricity board can get entry but under this Amendment the landlord merely requires to give 24 hours' notice, and he has the right of entry.

§ Mr. J. Stuart
indicated dissent.

§ Mr. Fraser
We are told that is not so, but we have not had much explanation. The Secretary of State told my hon. Friend that if the tenant refuses entry then the landlord should go to the courts. I hope that someone will give us the reference.

§ Mr. Stuart
The hon. Member will find it in Section 16 (2) of the Rent Restrictions Act of 1920.

§ Mr. Fraser
It was most considerate of the Government, in 1920, to insert a provision to meet what we are doing on 21st July, 1954. The Secretary of State, in one of his earlier and pungent interjections, said that he supported the provi 1511 sion in the Act of 1950 giving the landlord the right of entry to carry out repairs. There is a very great difference between giving the right of entry to carry out repairs and the right of entry to determine how much the tenant shall contribute weekly to the cost of repairs from which he does not believe he has enjoyed any benefit at all.
The Secretary of State has had a little time to think of replies to my hon. and learned Friend the Member for Aberdeen. North (Mr. Hector Hughes), and the hon. Lady the Member for Tynemouth has had ample opportunity to collect her thoughts and tell us what she proposes to say about this proposal to give the right of entry at 24 hours' notice not to a gas or an electricity board but to some of the most unscrupulous people in Scotland.

§ Miss Irene Ward (Tynemouth)
I have always longed, as an Englishwoman, to be asked to take part in a Scottish debate. This is a really thrilling moment for me. The hon. Gentleman is quite right. I have listened with very great interest to the development of the argument. First of all, I thought that possibly there was a point to be put on this. I do not need to collect my thoughts. They are in my head. I do not always let them out, but they are there.
As soon as my right hon. Friend announced that if the tenant did not acquiesce in the right of the landlord to enter the house, and that he had to apply to the sheriff for permission, I found that, in fact, the part of this Bill which is being discussed is in line with the Rights of Entry (Gas and Electricity Boards) Act, which I had the privilege and honour, with the assistance of right hon. and hon. Members opposite, to pilot through the House. In other words, my Bill protected the general public from compulsory rights of entry without a warrant.
If I understand the position here correctly, the tenants are protected, if they desire to prevent a landlord from entering, from compulsory right of entry without going to a sheriff court. Hon. Members opposite will appreciate that I do not understand Scottish legal procedure. In England, we do not talk about going to a sheriff court, but tonight I am trying to be Scottish.
It seems to me that all is well and that the principles for which I fought are not 1512 infringed. I therefore no longer wish to intervene between my Scottish hon. Friends and my Scottish opponents opposite, but I thank hon. Gentlemen opposite for the opportunity which they have given me to say a few words on this matter.