§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Barber.]
§ 4.0 p.m.
§ Mrs. Barbara Castle (Blackburn)
The subject that I wish to raise is a misleading statement in the Government's handbook "The Rent Act and You". I think the Parliamentary Secretary to the Ministry of Housing and Local Government is well aware that the misleading statement to which I refer is the answer given in the handbook to question No. 64.
The question asks whether the Act affects the right of a landlord to regain possession of his own controlled house for occupation by himself or his parents or children over 18. The answer points out that the Act does affect the landlord's right in two ways. It deals, in the first place, with the fact that the need to offer alternative accommodation has been altered, but I am not concerned with that today. It then goes on to say that the landlord:…will still have to show the court that it is reasonable to grant an order for possession, and that greater hardship would not he caused by granting the order than by refusing it.On 19th November, my hon. Friend the Member for Wood Green (Mrs. Butler) and I pointed out to the Minister that on 3rd October, at Stourbridge County Court, Judge Carr had given a ruling in the case of Perry v. Downing to the effect that owing to the drafting of paragraph 21 of the Sixth Schedule to the Act the protective clause relating to greater hardship no longer applied. We asked the Minister on that occasion, as it was clearly the Government's intention—as the handbook seemed to imply—that the protection of the greater hardship plea should still be operative—whether the Government would introduce amending legislation to put the matter beyond all dubiety.
We were very distressed at the Minister's reply on that occasion. He did not dispute the fact that the county court judge had in this case found contrary to the Minister's own handbook, but he added:If a similar decision were reached by a higher court, I should certainly consider 1538 whether steps ought to be taken to give effect to the original intention."—[OFFICIAL REPORT, 19th November, 1957; Vol. 578, c. 192.]We pressed the Minister further, asking him who was to seek a decision by a higher court. Are we now to interpret the Act as meaning that it is for the tenant to secure the promise made in answer to question No. 64 by going to the trouble and expense of appealing to a higher court? Surely it is a very strange approach for a Government Department to make to its legislation to admit that there is legal dubiety but to refuse to put the legal position beyond any doubt, saying that it is for those who suffer from the Government's bad draftsmanship to clear up the matter through action in the courts.
On that occasion my hon. and learned Friend the Member for Kettering (Mr. Mitchison) made it clear that the Opposition were prepared to give the utmost facility to the Government to enable them to rush through a simple amending Measure, but this offer was turned down.
§ Mr. Speaker
I think the hon. Lady is now entrenching on the dangerous ground of proposed legislation, and that is not permitted on the Adjournment.
§ Mrs. Castle
I realise that. I suffer from that limitation under the Standing Orders, but I am trying to point out that we have a specific statement in a Government handbook to the effect that the Rent Act means a certain thing, that this has been challenged in a county court and that my hon. and learned Friend the Member for Kettering pointed out that the decision of the county court judge was in direct conflict with the answer in the Minister's own guide to the Rent Act. My hon. and learned Friend asked the Minister whether he intended to reprint the guide in order not to repeat the text or whether, alternatively, he would like the co-operation of this side of the House in putting his own guide in order by drafting an amending Act.
The point which I wish to stress this afternoon is that there is clearly dubiety as long as this county court decision remains unchallenged in the higher courts and that it is therefore the Minister's responsibility to do one of three things: to take the matter to appeal in order to clear it up through the courts or to introduce amending legislation to make 1539 this guide accurate; or to withdraw the guide and reprint it. I want to ask the Minister this afternoon which of these three things he intends to do. It is surely an intolerable situation to have circulated with all the authority of the Government a statement which has been challenged in the courts. No Minister who is taking his responsibility seriously would surely allow that position to continue.
We on this side of the House have always said that paragraph 21 of the Sixth Schedule was an iniquitous paragraph because it extends the number of cases in which people can be turned out of their houses into the streets by enabling the landlord of a house which would otherwise remain controlled to claim possession of it on the ground that he needs it for his own occupation or for that of a member of his family. The paragraph is all the more iniquitous because this right of turning out the tenant of a controlled house is given to the landlord even though he bought the house after 1st September, 1939, and therefore knew perfectly well that the house was controlled in this way, and even though he no doubt bought it at a price which reflected the fact that he had a sitting tenant.
It is just because the paragraph weakens the tenants' rights in this way that it is so important to ensure that the meagre safeguards for the tenants which still remain are established beyond any doubt whatever. It was the Government's defence in the Committee discussion of this paragraph, as it is in their own handbook, that this safeguard is established beyond any doubt. It is because that safeguard is now challenged that we are raising the matter this afternoon.
I must say that this is a very serious reflection on the Government, which rushed the Bill through under a Guillotine, which meant that there was not time for adequate discussion and apparently not even time for the Government properly to check on their own draftsmen. It is a grave reflection on the Government, not only that they have done this with indecent haste thus, as events have proved, robbing the tenant of the full safeguards which he ought to have, but also that, the error having been pointed out and doubts having been cast on the draftsmanship of the Bill, they have 1540 refused to give us satisfaction, as they did on 19th November. It is, I think, a vindication of what was said from this side of the House in Committee on the Bill against the fact that this important change in the legislation was introduced in the Act through the back door as a paragraph in a Schedule instead of being embodied in the substantive part of the Act.
We now see that thousands of tenants are affected by this change and that it is of great importance to them. For instance, in the case of Perry v. Downing, the tenant was evicted by order of the court, or was given notice of eviction that the court was prepared to sustain. As it happens, in this case the local authority has stepped in and, in view of the special circumstances, has agreed to rehouse the evicted tenant. There will be, however, hundreds of local authorities who, because of the housing economies being enforced upon them by the Government, will be unable to rehouse a tenant who is evicted as a result of the dubiety of this paragraph.
It is surely most unfair to other people on housing waiting lists that tenants who might not otherwise have been evicted should be given priority over their heads because a county court judge may rule contrary to the Minister's own document. It is for all these reasons that we ask the Minister to treat this matter with far greater seriousness than he has shown signs of doing so far.
I hope that, in replying to the debate, the spokesman of the Department will not say that the factor of "reasonableness" still remains to safeguard the tenant and that the landlord will still have to show the court that it is reasonable to grant an order for possession. Surely, the Minister knows that the word "reasonable" is too vague. It has never been clearly decided what it means. To most of us, it would seem synonymous with "greater hardship": but if the "greater hardship" safeguard goes, the safeguard of "reasonableness" is also undermined.
Innumerable cases are coming before the courts because of the paragraph. Although many judges may disagree with Judge Carr, we cannot say with certainty that there will not be others who do not agree. It is quite intolerable that the tenant already penalised by this most iniquitous paragraph should be robbed 1541 of the certainty of the safeguard which the Government have pleaded in defence of the paragraph. If it were not for the Government's obsession with landlords' rights rather than tenants' protection, we would not have had this paragraph at all. Now that we have it, may we at least ask the Minister to carry out his own intentions in law?
§ 4.13 p.m.
§ Mrs. Joyce Butler (Wood Green)
I am glad of this opportunity of supporting my hon. Friend the Member for Blackburn (Mrs. Castle), because I have watched with particular interest the working of the relevant Section of the Rent Act, 1957. The Parliamentary Secretary will recall that in Committee on the Rent Bill we had a long discussion on the Clause, as it then was, and that the Minister on that occasion quite clearly stated thatWhat we are seeking to do is to give the Court the opportunity to judge which of two human beings will suffer the greater hard-hardship.—[OFFICIAL REPORT, Standing Committee A, 13th March, 1957; c. 1354.]He said that quite definitely. Not only did he say it then, but, as my hon. Friend has pointed out, he has repeated it in the Rent Act guide.
The danger is that it may be felt that this is a legal point which does not affect many people. I assure the Parliamentary Secretary that that is not so. I have in my constituency many hundreds of cases in which the landlord bought his house, and did so at a much lower cost because it was with part vacant possession, and has been awaiting an opportunity such as this to evict the tenant. The tenant's only safeguards now that the Rent Act has become law are the two points of "reasonableness" and "greater hardship." Of course, the Stourbridge decision has meant that there is uncertainty when these cases come up for hearing. It is very difficult for a lay person to penetrate the "iron curtain" of the county court, but I was surprised to find out how many of these cases seem to be coming before the courts.
I do not know whether the Minister has any information on the actual numbers, which I have been unable to obtain, but there is a large number of these cases, and I think it quite probable that landlords seeking to secure full possession may be rushing to bring their cases to court before any higher court can change the situation and while they 1542 may still take advantage of the uncertainty that exists with regard to the question of greater hardship.
These cases are continuously coming before the courts now, and I understand that a number of them are going to appeal, although whether on this particular point I cannot say. But it means, at any rate, that there are tenants who, dissatisfied with the decision of the court, are going to the expense and trouble of appealing against the decision in the hope that, by so doing, they may secure a continuation of their tenancy.
In one case about which I know the judge took the view that the provision regarding what is reasonable covers the question of greater hardship. It is clear that some judges are taking that view, but it seems to me that that is by no means definite enough, because it is perfectly easy to say that it is reasonable for a landlord to obtain possession. He may be living in overcrowded circumstances and it may be reasonable to say that he should have the whole house. Yet, unless provision is made for greater hardship, the tenant will be forced to leave the premises because it is considered reasonable that the landlord should have possession. The tenant's hardship in having to be evicted and thrown on to the street is not necessarily taken into consideration.
It seems to both my hon. Friend and myself that, because there are these cases at the moment and because so many tenants may be evicted by this uncertainty, the Minister must take some action. I support what my hon. Friend said. There are various courses of action which the Minister can take. It is really not good enough for him to wait and see what happens in a higher court before deciding to take action because, in the meantime, there may be many tenants who will suffer as a result of hit inaction.
Tenants have been misled by the Minister over the Rent Act guide and the promises which he has made. It is clearly the responsibility of the Minister to take action now in order to uphold what he has said and to give tenants that extra measure of security which the greater hardship proviso was intended to give them when the Rent Act was passed.
§ 4.19 p.m.
§ The Parliamentary Secretary to the Ministry of Housing and Local Government (Mr. J. R. Bevins)
I rise with a good deal of trepidation to reply to the hon. Lady the Member for Blackburn (Mrs. Castle) and to the hon. Lady the Member for Wood Green (Mrs. Butler), because this is essentially a legal matter. I say, first, that I very much appreciate the motives which impelled the hon. Member for Blackburn to raise this question this afternoon, although I must say that I think she is a little out of date in her case law.
I also wish to say straight away that, had it been the intention of my right hon. Friend to repeal the greater hardship proviso in the 1933 Act, he would certainly have made the provision in the body of the Rent Act rather than in one of the Schedules as, in fact, was done.
It might be useful to the House, and perhaps otherwise, if I were to go very quickly over the short history of the matter which is a little complicated. The position is, of course, that the First Schedule to the Rent and Mortgage Interest Restrictions Act, 1933, sets out the power of the county court to give a landlord possession in cases where there is no proof of alternative accommodation. By virtue of paragraph (h) of that Schedule, and of the proviso to the Schedule, power exists in the event of a house having been purchased by the owner before 11th July, 1931, to give him possession for his own occupation or the occupation of members of his family unless—and these are the words of the proviso:…greater hardship would be caused by granting the Order than by refusing to grant itI think that is clear from the 1933 Act.
Turning to the Rent Act, 1957, we find that paragraph 21 of the Sixth Schedule alters to 7th November, 1956, the date by which the house must have been purchased. This paragraph is written into the law in place of paragraph (h) of the First Schedule of the earlier Act. It so happens that in the 1957 Act the substitute paragraph ends not with a colon but with a full stop, followed by quotation marks; and it has been assumed in certain quarters, as the hon. Lady has said, that paragraph 21 replaces not only paragraph (h) in the 1544 First Schedule of the earlier Act, but also the proviso which followed paragraph (h).
Certainly that was never the intention of my right hon. Friend. I am sure that the hon. Member for Wood Green recalls clearly what was said about that by my right hon. Friend when the Bill which eventually became the Rent Act of this year was being discussed in Committee. It was never our intention at any time to repeal the greater hardship proviso.
Although I am not a lawyer. I should not have read this change in the law as meaning that the proviso had been repealed. In support of that view it can be argued that if the proviso related only to paragraph (h) and not to the Schedule as a whole, it would hardly have used the words:Provided that an order shall not be made on any ground specified in paragraph (h) of the foregoing provisions of this Schedule…It would simply have referred to "any ground specified in this paragraph." But it did not do that; the words are used which I have just quoted.
It is also clear, at any rate to me, that the proviso in the earlier Act is in alignment with the opening part of the First Schedule, and not with the individual paragraphs (a) to (h), which also indicates that it refers to the Schedule as a whole and not merely to paragraph (h). My right hon. Friend made it clear beyond all doubt during the Committee stage discussions that the hardship proviso would continue to apply, and that was accepted by right hon. and hon. Members of the party opposite who served on the Standing Committee. In the publication of the handbook, "The Rent Act and You", we said that the landlord would have to show the court that it is reasonable to grant an order for possession, and that greater hardship would not be caused by granting the order than by refusing it.
Despite all this, in the Stourbridge case, which has been referred to, Judge Carr held that the proviso had been repealed by the 1957 Act. But—and I think this important—subsequent to that decision in the Stourbridge County Court two other county court judges have taken the opposite view, Judge Andrew of the Bow County Court in the case of Leadley v. Millson and Judge Archibald at Skipton 1545 in the case of Tonge v. Wilkinson. Both these cases were heard within the last month and in both the judges took a view contrary to that of Judge Carr. I understand that reports of both cases will appear in the law journals in a matter of weeks. So, notwithstanding the first legal ruling, the weight of legal opinion in support of the view that the proviso is still law is in fact building up at this moment. Certainly the best advice which I have received supports the view that the proviso is still part of our law.
The hon. Lady the Member for Blackburn asked why the Minister appeared to be so hesitant to bring in amending legislation. We do not feel that it would be in accord with precedent to ask Parliament to alter the law on the basis of one judgment in the county court which has already been in conflict with two subsequent decisions and when the higher court has had no opportunity as yet to pronounce upon it. As the Law Journal said on 29th November:The Minister—rightly, we think—declined to do so"—to promise a short amending Bill—for the solution to the problem can safely be deferred until the Court of Appeal has an opportunity of supplying the final answer.I come to the question raised by the hon. Lady whether my right hon. Friend should encourage or even finance an 1546 appeal to the High Court. I am advised that there are difficulties. The costs of one party to an appeal cannot be paid by a member of the public who has neither an interest in the action nor any other motive recognised by the law as justifying his interference. For that would amount to what is known in law as "maintenance", which is an actionable wrong. It would clearly be wrong for the Minister to take the action suggested. My right hon. Friend would appear to have neither an interest nor a motive, in the sense in which those terms have been construed by the courts.
The feeling of my right hon. Friend is that the build-up of the case-law in support of the continued operation of the hardship proviso will probably develop as the weeks pass, and the law will come to be correctly construed. Naturally, if, in the course of the next month or so this expectation were falsified, we should have to reconsider our attitude.
I end by reiterating that my right hon. Friend had no intention whatever—that is perfectly clear from the OFFICIAL REPORT—of repealing this "greater hardship" proviso. He is satisfied that, as the matter develops, hardship will not come to pass.
§ Question put and agreed to.
§ Adjourned accordingly at twenty-eight minutes past Four o'clock.