§ The Attorney-General
I beg to move, Amendment No. 48, in page 15, line 10, at the beginning to insert:(1) If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof or attempts to do so he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.
§ Mr. Deputy-Speaker (Sir Samuel Storey)
I understand that it will be convenient to discuss at the same time Amendments Nos. 51, 52, 53, 55, 57, 58, 59, 61, 62, 63 and 64.
§ The Attorney-General
In Committee the effectiveness of Clause 25 dealing with the harassment of occupiers came 721 under a good deal of discussion. I undertook to consider whether the Clause, together with Clause 26 and, to some extent, Clause 27, could be clarified, and I expressed the view that it might be necessary to recast Clauses 25 and 26, in particular. This has proved to be the case, and to assist hon. Members in considering these Government Amendments we have made available a reprint of Clauses 25 to 27 as they will read if the Amendments are accepted. I hope that hon. Members will permit me and will find it convenient to refer to the Clauses as they are set out in the reprint.
The House will see from a comparison of the reprint with the Clauses as they appear in the Bill that the Amendments result in reorganisation of Clauses 25 and 26. As these Clauses appear before amendment, Clause 25 deals with the new criminal offence of harassment—
§ Sir Martin Redmayne (Rushcliffe)
If I might interrupt the right hon. and learned Gentleman, I should like to make a small protest. I feel that if there is a reprint in the Vote Office, it should be on the Table of the House. It so happens that neither I nor my hon. Friend the Member for Cornwall, North (Mr. Scott-Hopkins) have been to the Vote Office today. We have been working on yesterday's Order Paper. The organisation of the House has, perhaps, fallen down a little in this respect. Perhaps, therefore, the Attorney-General will be a little more careful in his explanation.
§ The Attorney-General
Yes, of course. I know that the right hon. Gentleman will acquit me and my right hon. Friend from any oversight of the welfare of the House in this matter, but in the circumstances I will certainly not rush matters.
As it stands without amendment, Clause 25 deals with the new offence of harassment. In Committee and in comment in the Press and elsewhere, doubts were expressed whether its terms were adequate to cover unlawful evictions not falling under Clause 26. Unlawful eviction is the most flagrant and blatant of all forms of harassment. That is something that has had to be dealt with in the redraft which I present to the House. In its present form, Clause 26 does two things. It prohibits eviction without re- 722 course to the courts, and it imposes a penalty on eviction in contravention of that prohibition.
In the proposed new form, the Clauses will deal with these matters differently. A new subsection (1), which is Amendment No. 48, appears in Clause 25. That covers all unlawful evictions including those previously made unlawful by Clause 26. The new Clause 25(1) creates an offence of unlawful action to deprive an occupier of his dwelling or attempting to do so. Clause 26 as amended merely states the prohibition without itself creating an offence.
As a consequential Amendment, the saving for civil remedies in the tenant adversely affected, which is now found in lines 42 and 43 of page 15 of the Bill, is transferred to Clause 25 and it forms subsection (4) of that Clause:Nothing in this section shall be taken to prejudice any liability or remedy to which a person guilty of an offence thereunder may be subject in civil proceedings.As a result of the Amendments, the scope of the offence of unlawful eviction will be widened. I say that for these reasons. First, unlike the present Clause 26(2), the new Clause 25(1) will no longer be confined to the eviction of former tenants protected by Clause 26. It will extend to eviction of tenants and former tenants under tenancies protected under other legislation such as the Rent Acts themselves or the Landlord and Tenant Act, 1954.
Secondly, the scope of the offence of unlawful eviction will be widened because the definition of "residential occupier", which among others includes persons protected by Clause 26, will itself be widened by the widening of the definition of the occupier in Clause 26. In the reprint, Clause 26(3) includes these terms:in this section 'the occupier", in relation to any premises, means any person lawfully residing in the premises or part of them at the termination of the former tenancy".Hon Members will therefore see how wide this definition of "occupier" is. The definition will also be improved—and it may be that my hon. Friend will deal with this—so far as Scotland is concerned, by Amendment No. 53 in page 15, line 27, which inserts, "or rule of law", in recognition of the fact, which 723 I think emerged as a fact although there was some query about it at some stage, that, as amended, Clause 26(4) also recognises, the prohibition of self-help in evicting a former tenant is part of the common law of Scotland.
§ The Attorney-General
The hon. Gentleman shakes his head at that proposition, but I shall leave it to my hon. Friend to see that the head remains either stationary or nods downwards in an affirmative direction if this interesting matter still remains an issue between us.
As the House will see, Clause 25(1) as it is now proposed to amend it, is directed only against unlawful acts. Perhaps the House will bear with me if I read it. It says:If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof or attempts to do so he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.I emphasise, therefore, that the Clause is directed only against unlawful acts, as one would expect to be the case when one is creating a new criminal offence. It will not make it an offence to attempt to deprive a tenant or former tenant of his occupancy by lawful means, such as the service of notice to quit or the institution of proceedings for possession against him.
§ Mr. Graham Page
That word "unlawful" applies only to subsection (1). I am a little puzzled as to how it is introduced into subsection (2).
§ The Attorney-General
I shall come to that, because we had an interesting discussion on this in Committee. I assure the hon. Gentleman that the point has not been overlooked, and it might be that I shall now convince him that lawful acts are not charged as a criminal offence under this proposed legislation.
As I was venturing to point out to the House, the emphasis, and indeed the essence, of Clause 25(1) is the commission of unlawful acts, the unlawful deprival of occupation. The fact that subsection (1) is drafted in terms of unlawful acts 724 should, I think, make it clear that the legitimate exercise of a landlord's remedies is not brought in, so to speak, on a side wind by subsection (2). I ought to add that this emerged during the debate last night on the proposal of the hon. Member, not for Lubbock, but for Orpington (Mr. Lubbock)—I have it right this time—about the notice to quit. As I ventured to point out then, if a series of otherwise legitimate acts are done oppressively, accumulatively, and excessively, like a series of notices to quit served in circumstances of intimidation, or whatever the case may be, so as to make life a misery for the occupier and to force him out, the offence of harassment might be found by a court to be committed under Clause 25(2). I repeat, as I said last night, that subsection (1) is not, and is not intended to be, a kind of charter protecting the landlord who showers his tenant with notices to quit and a series of threat of legal proceedings every time the postman knocks.
I hope that the hon. Member for Crosby (Mr. Graham Page) will bear with me: it underlines the difficulty about the solution of the problem which is worrying him, which, on the face of it, could easily be resolved by putting in "does unlawful acts" in line 14. The difficulty is that a series of lawful acts done in such a fashion as to constitute actscalculated to interfere with the peace or comfort of the residential occupier or members of his household",and so on, although being lawful acts taken singly or individually, could, cumulatively and in the fashion of their performance, collectively constitute harassment. That is the difficulty. The prima facie attractive solution of introducing the word "unlawfully" or "unlawful" into subsection (2) does not meet the case.
It will be abundantly clear to any court—we must not lose sight of the fact that common sense operates even in the courts of justice, at whatever level—that lawful acts such as the serving of a lawful notice to quit clearly are not intended to be criminal acts, and cannot conceivably be interpreted or be deemed to be criminal acts by reason of the words of subsection (2).
§ Mr. Graham Page
I am very grateful to the Attorney-General, and I do not 725 want to interrupt more than is necessary, but he is putting a very astonishing proposition to the House, namely, that a series of lawful acts may be unlawful. This is about as novel an idea in law as was the suggestion that we put forward in an Amendment yesterday, at which the right hon. and learned Gentleman scoffed.
§ The Attorney-General
Harassment is a new criminal offence, and I should not have thought that the House would be in great difficulty in agreeing that there is a clear justification for the view that a landlord who oppressively serves a series of notices in the circumstances to which I have referred is not merely carrying out the lawful right of communication but is embarking upon a course of conduct amounting to harassment causing unnecessary interference with the peace and comfort of the occupier.
The harassment that is more likely to be dealt with by the courts will not be harassment by way of the issuing of a shower of lawful notices to quit. The kind of harassment that the Bill bites at is that which is so vividly exemplified through many of the pages of the Milner Holland Report. It was the shock that the community had when it discovered the appalling methods and devices used by racketeering and crooked landlords to extort, exploit and extract tenants, which drove the Government, and, before them, the Milner Holland Committee, to recommend that we should add to the armoury of the civil law that which had previously been added in New York and other places, namely, the armoury of the criminal law, directed against a serious course of anti-social, indeed, criminal misconduct.
As I have said, the Amendments propose an important change in Clause 26 in addition to the changes involved in transferring subsection (2) of Clause 26 in a generalised form to Clause 25. They will substantially widen the definition of the occupier, as I have said, and therefore the class of person which is to be protected by self-help from being evicted like mere trespassers. In the view of the Government, there is no reason that anyone lawfully residing in the premises when the tenancy comes to an end—whether a sub-tenant, the former tenant's 726 deserted wife or even someone sharing a flat with him, all problem cases which we discussed in Committee—should not have the basic protection of the Clause.
Amendment No. 58, which will now appear as subsection (3) of Clause 26 in the reprint, ensures that all these persons have that protection. So we have, by this redraft, simplified the problem which previously confronted us with a good deal of difficulty, and I think that we have met a problem which was ventilated on both sides of the Committee. Nevertheless, even in its new form, Clause 26 will be confined to tenancies which are not protected under the Acts of Parliament listed in Clause 28. The House will remember that, in Clause 28, protected tenancies are referred to and in this part of the Bill that phrase means tenancies to which the various Acts of Parliament which are then listed refer. The fact that a protected tenancy does not enjoy the basic protection does not, of course, mean that when a protected tenancy expires, the tenant can be kicked out unceremoniously without a court order.
The case of Cruise v. Terrell in 1922 decided that the Rent Restriction Acts did not allow that, and I have no doubt that a court will take the same view of the other Acts giving protection to the particular classes of tenancies which are referred to in the legislation listed in Clause 28. Perhaps I might also be allowed to refer to Amendment No. 65, in Clause 28, in page 17, line 34 to leave out from "applies" to the end of line 35 and to insert:(c) a tenancy of an agricultural holding in England or Wales.I hope that this is one of the Amendments which you called, Mr. Deputy-Speaker—
§ Mr. Graham Page
On a point of order. I think that it was not one of the Amendments which you called, Mr. Deputy-Speaker. On the other hand, I think that it would be convenient to discuss it with these Amendments.
§ The Attorney-General
I am most grateful to the hon. Gentleman. It might be helpful if I dealt with Amendment No. 65 in this Omnibus Second Reading consideration of these matters. That Amendment is designed to cure a defect to which our attention was drawn in Committee by the hon. Member for 727 Crosby. It will prevent the definition of "protected tenancy" from extending to tenancies which are not, in fact, protected by any body of legislation, because it will delete the words to which the hon. Member for Crosby referred in Committee and which at present appear in paragraph (b) of Clause 28:… or would apply but for section 43 thereof".The hon. Member for Crosby referred to the unsatisfactory result of including those words.
Amendment No. 61, which is the first Amendment to Clause 27, preserves the effect of that Clause by reinstating the previous definition of "the occupier" but omitting any reference to a subtenant. Clause 26(4) states:In this Part of this Act 'the occupier', in relation to any premises, means any of the following persons …".It goes on in subsection (4,b):any person to whom the premises or part thereof have been lawfully sub-let as a dwelling".In the amended Clause 27 "the occupier" is defined in subsection (2) in terms similar to the old Clause 26(4), but with the deletion of the reference to subletting in respect of agricultural employees and premises of the type dealt with in Clause 27. The occupier in Clause 27 is, therefore, defined in narrower terms than he is in Clause 26 because we are anxious in Clause 26 to cover as wide a range of person lawfully in occupation as we can, but we appreciate that there are good reasons for restricting the range of protected occupation in Clause 27.
The only other Amendment applying to England—which again arose from our discussion in Committee—is the one to Clause 27, Amendment No. 62, which arose out of the expertise of hon. Members of the Committee who were obviously fully conversant with the details of agricultural operations. They asked such questions as whether broiler houses were included within the ambit of Clause 27. The Clause has been amended so that the reprint of subsection (5,b) is designed to cover agricultural operations. The reprint now reads:whether the efficient management of any agricultural land or the efficient carrying on of any 728 agricultural operations would be seriously prejudiced …".That compares with different language in Clause 27, where one sees, I hope, the previous expression in page 17, line 9,… whether the efficient management of any agricultural land …That has now been restated in terms to meet the point made on both sides of the Committee.
I am grateful to the House for permitting me to state those matters in these general terms. I wish that I could have made the task lighter for the House—I know that it is not an easy one—but I hope that the House may feel that we have honourably carried out what we undertook to do during the Committee stage, and that the House will give its thoughts to these Government Amendments.
§ Mr. Carlisle
We are all grateful to the Attorney-General for his very full exposition of what are now virtually three new Clauses. Clause 25 has certainly undergone very considerable change since the Bill first came before the House. I say at once that I shall not attempt to say anything on those Amendments that appear to deal with Scotland—and Amendment No. 53 in particular. I have not been able to understand the purpose of adding those words to the subsection.
I understand that the Amendments to Clause 25 are mainly drafting Amendments intended to improve and clarify its purpose in view of the various matters that were raised in Committee. I think that the wording now used is very much more satisfactory than that used in the original Clause 25 and Clause 26(1). In particular, I feel that the use of the wordsIf any person unlawfully deprives the residential occupier of any premises …an offence is committeed, is clearly a considerable improvement on the previous words:… attempts to enforce his right of possession …",which seemed to be extremely wide.
The learned Attorney-General has repeated that under the existing subsection (2) of Clause 26 it might well have been argued that such a move as service of notice to quit could have created an offence. I am sure that all hon. Members would agree that when one is framing a Clause that creates a new criminal 729 offence, it is very necessary that its terms should be clear and definite.
I think that the wording of subsection (2) of Clause 25 is still open to argument. I appreciate the difficulty of bringing in the word "unlawful" before "acts". It could be argued that an act such as the service of a notice to quit might, provided it was repeated more than once and so become "acts", be said to be acts covered by the Clause. There is still a certain amount of argument possible there, but the Clause is far clearer than it was before.
I wish to say something on the Amendments to Clauses 26 and 27. I accept that the Amendment to Clause 26 to extend the definition of "occupier" has been brought in as a result of matters raised by my hon. Friend the Member for Crosby (Mr. Graham Page) in Committee and matters raised by several of my hon. Friends who were on the Committee to the effect that such people as a deserted wife were not covered by the word "occupier". In attempting to cover those difficult cases which were not previously covered, the present definition of "occupier" has gone extremely wide. There is no possible limitation on time, how long a person has been residing in the house.
The words,residing … at the termination of the former tenancycould include someone who normally lived there, but was away when the tenancy terminated. While I appreciate that it is necessary to have a wide coverage of people who should have the basic protection of the Bill, under the present definition of "occupier"—since it is no longer limited to a tenant to people specifically referred to as it was previously in Clause 26—does this now mean that an order has to be obtained for possession against every person residing in the house at the time the tenancy terminated?
"Occupier" would cover all of them. If proceedings are taken against the previous tenant, would it mean that any other persons living there would not be affected by those proceedings but further proceedings would have to be taken against them? If so, this seems a fairly 730 wide extension of the previous definition and one which raises certain difficulty.
The final matter I raise is on the Amendment to Clause 27. I appreciate that the Attorney-General, in bringing in this definition under the agricultural tied cottages Clause, has done so for the purpose of attempting to limit the types of people who would have the further protection which occupiers of agricultural tied cottages have under the Bill, but why is it necessary to have this Clause in this form? Why is it necessary to give people even referred to in the more limited definition of the word "occupier" greater rights to stay on in that type of service occupancy house than in any other form of service occupancy house?
I put a question which I put in Committee and which the Attorney-General has not answered. Even accepting the limitation of the definition of "occupier" in Clause 27, this still means that if a person working in agriculture dies, his son or daughter or other member of his family have greater protection against the employer who wishes to have the house for some other employee than a similar person who is the son or daughter of a policeman, a schoolmaster, or anyone living in another service occupancy house. There seems no possible justification which the Government have at any time put forward for a greater extension than for others in service occupancy. I suggest that this is because the Government are basically anti-farming. That is the only reason which can be found for the different interpretation of the Clauses.
I am sure that the Government have attempted to limit this matter to a greater degree than it was before and in relation to Clause 25 we welcome the Amendments.
§ Sir M. Redmayne
Before I seek very briefly to reinforce some of the arguments which have been advanced by my hon. Friend the Member for Runcorn (Mr. Carlisle), I want to return to the matter of the redraft of the Bill which the Attorney-General said was put in the Vote Office. I do not want to be tedious about this, but the Government once or twice lately, no doubt in a spirit of great helpfulness, have produced papers of this sort. In point of fact, this paper is not, or it was not at the time when it was referred to, in the Vote Office.
731 If the Government are to be helpful to this extent, they should try to get the machinery of it rather better. I remind the Attorney-General that I have sat on the Government Front Bench often enough and heard most terrible rows in the House because this type of mistake has been made; rows perhaps particularly caused by the Secretary of State for Scotland, who I do not see in his place, and other Scottish Members.
I hope that I have not wasted the time of the House by drawing attention to the fact that, if these procedures are to be adopted, it would be as well to provide a service which is available to all Members and not merely to those who may be lucky enough to obtain these pieces of paper. I say this without any malice, but in a spirit of helpfulness.
I must confess that when I first saw the Amendment relating to the occupier in respect of Clause 27 I put a rather worse interpretation on it than the explanation of the Attorney-General warrants. It is clear that if, in Clause 26, the definition of "occupier" is now to be as wide as it is—I would not quarrel with that for a moment; I do not think that my hon. Friends quarrel with it—it is necessary that there should be a specific definition in Clause 27.
We have a natural sympathy for a widow in any circumstances of misfortune. I wonder whether the definition as it will be written into the Bill, particularly the extension of it relating to "any member of his family", does not rather upset the balance of the Clause, in the sense that the court will take into account the considerations in Clause 27(4), namely, what other accommodation will be available and the question of efficient management. We are grateful to the Government for extending that consideration.
I say, without wishing to appear to be hard-hearted, that the third consideration in Clause 27(4), namely, the matter of greater hardship, will almost automatically fall more heavily on the side of the occupier where the occupier is a widow. If this is viewed purely from the point of view of sympathy, one would say that that is perfectly justified. However, since considerable attempts have been made to ensure that, although justice is done, the ordinary and proper processes of farming 732 are not interfered with, this upsets the balance and, to my mind, constitutes a stronger argument for the Amendment which I hope to move shortly, which might enlarge the considerations which are to be taken into account by the court.
Amendment No. 61 relates to the tenant or to the widow of the tenant or a member of his family. Some of my hon. Friends have tabled an Amendment to Amendment No. 27 to excludeany member of his family residing with him at his death".It is pertinent to ask what is the legal definition of "any member of his family". It can be rather wide. The definition is taken very wide, when considering this matter from the point of view of the peculiar interests of agriculture, if it simply refers to thoseresiding with him at his death".We have great sympathy for the widow in these circumstances. Equally, we would have special sympathy for a daughter who had looked after a widower for some reasonable period of time. We would have slightly less sympathy if it referred to a daughter who had only come to look after the old man as he died. We would have no sympathy at all for any member of the family, as that broad description goes, who simply moved in at a convenient moment in anticipation of the death of the occupier in order to take advantage of the law.
We have to be realistic about these matters and to consider situations which might arise. I think it right that I should ask the right hon. and learned Gentleman what sort of protection for the employer or for the landlord the court is likely to provide in these cases. In view of the balance between this Clause and the previous one, Clause 26, although we would accept that some such definition was necessary, I would suggest to him that it would be wise to look again in another place at the wording of this Amendment and see whether, in the special circumstances of agriculture which have been openly admitted and, in the course of this Bill, quite willingly admitted, this Amendment is not too wide.
I grant that it is perfectly right that the widow should be included and that a member of the family in a special position should be included, but I think that it 733 really destroys what the Committee and the House have tried to do in respect of the particular interests of agriculture in this matter if it is allowed to go wider than that.
I must confess I am interested in Amendment No. 65 and, rather rashly, I question whether, by its drafting, the Government have done precisely what they want to do. As the Bill was drafted originally, it was the intention to class as protected tenancies all of those in Part II of the Landlord and Tenant Act, including those in Section 43. Subsequently, in this Amendment a special reference to a tenancy of an agricultural holding in England or Wales has been brought in.
If the right hon. Gentleman refers to the Landlord and Tenant Act as amended by an amendment in 1958, in, I think, an Agriculture (Miscellaneous Provisions) Act, he will see that the reference in Section 43 of the Landlord and Tenant Act has an addition to it which refers to certain tenancies under Section 2 of the Agricultural Holdings Act, 1948. It seems to me to be a somewhat untidy way of making this Amendment to put specifically into this present Bill a reference to a tenancy of an agricultural holding in England or Wales, and leave outstanding in Section 43 of the Landlord and Tenant Act this other definition of a tenant.
If one studies Section 43 of the Landlord and Tenant Act, it will be seen that one of the exclusions to that Act applies to a tenancy granted by reason that the tenant was the holder of an office from the grantor thereof and continuing only so long as the tenant holds the office. I understand that it would not be the wish of the Government to make that a protected tenancy, and that is why the Amendment has been put down in this form.
But it will be found that Section 43(2) also says:Provided that this subsection shall not have effect in relation to a tenancy granted after the commencement of this Act unless the tenancy was granted by an instruction in writing ….As I read it, that subsection relates to just such a tenancy as No. 10 Downing Street. It seems to me, therefore, that there may hidden behind this innocent 734 Amendment to the Rent Bill an intention on the part of the Government to give to the Prime Minister under the proviso in Section 43(2) of that Act a protected tenancy of the residence which he now occupies. This seems to me to explain to some extent the extraordinary assurance which the right hon. Gentleman recently showed that he is likely to remain in office even as long as he indicated.
§ The Attorney-General
If the Prime Minister had only a protected tenancy he would not be entitled to basic protection and that would be a thoroughly unsatisfactory situation. Happily, he has the basic protection of the support of the majority of the British people.
§ Sir M. Redmayne
That is an assumption which has been rashly made both by the Prime Minister and now by the Attorney-General.
However, although I admit that I am venturing on dangerous ground I think that my interpretation of the drafting is correct. I ask the Attorney-General to look at this point of drafting and put it right in another place. Although I am no lawyer, I think, that there is something in it. We understand the intentions of these sundry Amendments and do not oppose them.
§ Lieut-Colonel Sir Walter Bromley-Davenport (Knutsford)
My right hon. Friend the hon. Member for Rushcliffe (Sir M. Redmayne) referred to cases where the children turn up at the last moment when the parent is dying and are then able to continue to occupy the premises as a result of having been present during those last few hours.
We all know that in life there are two sins. There is the sin of commission and there is the sin of omission. To my mind nothing more cruel goes on every day than what happens in certain cases where these old people live in loneliness, poverty and illness. They can stand all those things but the one thing that hurts them more than anything else is to be deserted by those whom they love. I feel that to have on the Statute Book a law which allows people to come in and occupy the premises because of their presence during the last hours of a parent's life seems entirely wrong. I hope that this matter will be put right.
§ Mr. Cole
I should like to ask the Attorney-General one or two questions on the subject of residence to which my right hon. Friend the Member for Rushcliffe (Sir M. Redmayne) and my hon. and gallant Friend the Member for Knutsford (Sir W. Bromley-Davenport) have referred.
Last night, the Attorney-General dealt with the same point in another connection and went on to explain what seemed to be an obvious statement of fact. He said:'Resided' means resided. It therefore covers a bona fide resident and not merely an overnight taking up of temporary occupation before the benefits of the Clause come into operation. I do not think that any court would have difficulty about that."—[OFFICIAL REPORT, 29th June 1965; Vol. 715, c. 370.]Is that definition still to apply to the various Amendments we are discussing where the word "resident" or the reference to taking up residence occurs? If so, I think that we shall be satisfied; but we do not want two definitions of the same term in the Bill.
§ Mr. Hendry
My hon. Friend the Member for Runcorn (Mr. Carlisle) mentioned the Scottish Amendments. There appear to be three. I was not aware that Amendment No. 53 was intended to be a Scottish Amendment. It means nothing but, if it be a Scottish Amendment, it is completely harmless, and I shall say no more about it.
Amendment No. 59 replaces the original drafting in Clause 26, which was slightly longer and was more indicative of the verbiage employed by the original drafters of the Bill. The original drafting was utterly meaningless. I dealt in Committee with the law applying in this case, and I came to the conclusion that the original drafting was quite irrelevant to the law of Scotland.
The drafting substituted by the Amendment is equally irrelevant to the law of Scotland and the subsection has no meaning whatever. Apparently, the Clause, if it does anything, extends the law of Scotland, making it essential to take up a court order where a court order may or may not be necessary, and to say that this is done without prejudice toany rule of law in Scotland prohibiting the securing of possession other than by due process of law736 seems to be completely redundant, meaningless and irrelevant in the context. I say no more about that. At least it is harmless, and we need bother no more about it.
I welcome Amendment No. 64 as an improvement on the original drafting. I have already made proposals to the Under-Secretary of State explaining how I should like the paragraph to be drafted. Here we agree to differ, but I advise the House that, from the point of view of Scottish law, the Amendment is perfectly satisfactory.
§ Dr. Dickson Mabon
The hon. Member for Aberdeenshire, West (Mr. Hendry) is quite right to say that Amendment No. 64 appears in response to an undertaking which I gave him in Committee. I am sorry that we have not matched his expectation exactly, but I think that we are at one in our intention to make sure that the new drafting properly adjusts the meaning with reference to the English expression "mesne profits". Hon. Members will recall that we discussed this matter at our 16th sitting in Committee.
I am not sure whether I should be sorry that the hon. Gentleman thinks the other two Amendments are irrelevant. It is worth while putting on record that the Government, as was quite proper, took the hon. Gentleman's contention very seriously when he argued the matter and cited various cases. Hon. Members may remember the case of the coachman and one or two other rather entertaining examples of Victorian morality which were cited in this connection. We have taken the matter very seriously and looked closely at all the hon. Gentleman said. We consider that Amendments Nos. 53 and 59, which hang together, clarify the law and bring the Bill in relation to the law of Scotland beyond doubt. At least, we hope so. [Interruption.] Lawyers are so difficult, as we know.
The Second Report of the Scottish Law Reform Committee published in 1956, Command 114, recited 10 methods of eviction. Earlier, I pointed out to the hon. Member for Orpington (Mr. Lubbock) that there are six practical methods still in existence. The Government have tried to make the position clear and successfully did so on a previous Amendment. But, in relation to this matter, both the Scottish Amendments 737 justify what Ministers have been saying up till now as being the law of Scotland. In fact, we have looked further into the legal declarations on the matter and I draw the attention of the hon. Member for Aberdeenshire, West to two authorities.
In 1948, Lord Keith said quite unequivocally that the proper course under the law in all cases was to apply to the court for a warrant of ejection. The second version—and this is an impeccable source—came from the only former Scottish Law Officer we have in the House—the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) who said, during the passage of the Protection from Eviction Act, 1964:The Scottish position was quite clear. In Scotland it has never been possible to eject a person from a tied cottage. The Bill bears little relationship to the existing law in Scotland. The position is that in Scotland the farmer must go to the court to have a person evicted. It has been said that that has been the law in Scotland for some years. It all depends on what one means by 'some years'. It has been the law in Scotland since 1555."—[OFFICIAL REPORT, 26th November, 1964; Vol. 702, c. 1556–7.]To put the argument beyond all doubt we are, therefore, including these Amendments relating to Scotland. Even if the hon. Member for Aberdeenshire, West does not agree with the substance, he will agree that we have worked hard to clear the matter up.
§ Mr. Hendry
Whatever the law of Scotland may be about putting out someone by the scruff of the neck, is the hon. Gentleman saying that, as the Bill is drafted, that will no longer be the case?
§ Dr. Mabon
Not quite. The hon. Gentleman and I are starting from different premises. He argued that the law was not what Ministers said it was in discussion both on the Protection from Eviction Act and in Committee on this Bill. However, we are supported by his hon. and learned Friend the Member for Pentlands. But to remove all doubt we now say that our Amendments clarify the situation once and for all. If we have the hon. Gentleman's agreement to this—as I am certain we will—I hope that it will settle the argument finally.
§ Mr. J. E. B. Hill (Norfolk, South)
I am finding it difficult to follow the 738 intricacies of the debate. So much of this legislation is by reference and, indeed, by negative reference. If Amendment No. 65 means what I understand it to mean, the outgoing tenant of a farm will yield up the farm land on a certain day but only with a court order can he be compelled to yield up the farmhouse. If the desire is to assist the widow of a farmer who may have died suddenly, then I can understand the Government's intention but, as drafted, the Amendment seems to have very much wider implications and I wonder how far they have been considered.
Most farms, leaving aside the question of sudden death of the farmer, resulting in an immediate disposition of the farm, change hands on dates that are perfectly well known months ahead, usually on quarter days, and the great majority of them at Michaelmas. Many farmers leave their farms voluntarily. Some may even give notice. Does this Clause, therefore, mean that, even where the farmer has not died but has merely agreed to leave the farm and may in fact himself have given notice, and arrangements have been made for an incoming tenant, that new tenant or even the new owner if a sale has taken place, will be deprived of the possession of the farm house unless a court order is obtained?
If I am right, this seems to bring about a whole series of untoward results, because it is essential that the incoming tenant, who has to establish his business in a very difficult takeover period, should get into the farmhouse which, after all, is the centre of command of operations.
§ The Attorney-General
If the position is that the outgoing tenant goes out, surely no problem arises and there is no need for a court order for the incoming tenant to come in, because the farmhouse presumably becomes vacant by the departure of the outgoing tenant.
§ Mr. Hill
Precisely. But if the incoming farmer does not know that the former farmer is staying in the house, he will not be able to get a court order unless it is possible for him to apply for a precautionery court order, say, three months before the known date on which it is intended that the farmhouse should be handed over. I believe that many difficulties may flow from this situation in practice and I should, therefore, like to know whether this was asked for by the National Farmers' Union, which would be the representative body for both the outgoing and in the incoming farmer, and whether if it did not ask for it, it was consulted by the Government.
§ Mr. MacColl
I do not think that the National Farmer's Union asked for it. The general approach to these problems throughout the Bill has been that it should not be possible to get eviction without a court order. This position is in line with that in other cases, which is that if someone overstays for whatever reason, good or bad, he should be displaced by a court order.
§ Amendment agreed to.
Further Amendments made: In page 15, line 19, at end insert:
guilty of an offence.
(3) A person guilty of an offence under this section shall be".
In line 24, at end insert:
(4) Nothing in this section shall be taken to prejudice any liability or remedy to which a person guilty of an offence thereunder may be subject in civil proceedings.
§ In line 27, after "enactment", insert "or rule of law".—[Mr. MacColl.]