Amendments made: No. 72, page 28, line 20, after 'refusal', insert:
'or such longer period as the county court may allow'.
No. 73, page 28, line 26, at end insert:
'or such longer period as the county court may allow'.—[Mr. Skeffington.]
§ Mr. Allason
I beg to move Amendment No. 74, in page 28, line 40, leave out 'and' and insert:(4) On any appeal under this section the court.The purpose of the Amendment is to divide subsection (3) into two parts, one dealing with appeals on the issue of the state of the dwelling at the time of the hearing as well as at the time of the issue of the certificate and the other dealing with the entirely separate but important matter of costs.
We complained about this drafting in Committee. I regret that the Government have not taken our advice and I hope that they will take it now. It is ridiculous that two such entirely separate matters should be included not only in the same subsection but in the same paragraph, with no full stops. I am not a lawyer, but let us not forget that those who are not lawyers are as much concerned with costs as are lawyers. The provisions about costs should be in a separate subsection.
§ Mr. Maddan
We do not want to tempt the Parliamentary Secretary to be a devil again, because he did not enjoy the previous experience. On this occasion we are tempting him to be a saint.
§ Mr. Skeffington
It is always difficult to resist these appeals. The question is, which is the clearest way of drafting the subsection? As a result of discussion in Committee, we took further advice on the matter. I tested the subsection on a Gallup Poll of my own and discovered that it made little difference whether the Amendment was incorporated. The consensus of opinion was that it is easier as the Bill is at present drafted.
I concede that there are two ways in which it could be drafted but, although 1818 I should like to be helpful, I see no reason why we should accept the Amendment. Had my tests led overwhelmingly to support of the view put by the Opposition, I should have recommended the Amendment, but that did not happen. My advice, without doctrinal or any other policy reasons, is that the Amendment should not be accepted and that, as drafted the subsection is clearer than it would be if it were split into two.
§ Mr. Graham Page
None of us would go to the gallows on this Amendment, but it seems sense to divide this provision into two subsections, one dealing with matters relating to the condition of the property which have to be taken into account by the courts and the other dealing with the situation, when the court has decided whether a certificate should be granted, when the order is made as to costs. It is illogical to mix these two provisions and we should press the Parliamentary Secretary to accept the Amendment.
§ Mr. Skeffington
I hope that we shall not divide the House on a point on which Division is not necessary. I have taken the advice of the parliamentary draftsman who, unlike the situation on the previous Amendment, see no snags in this Amendment. We must be careful about what we put into the Bill, but if the hon. Member for Hemel Hempstead (Mr. Allason) will allow me a little more time, I will arrange to make the very simple alteration in another place. For the reasons I have given, I should like a little further time. There is some evidence which goes against the Amendment. However, it is purely a question of drafting and in view of that I hope that we need not proceed to a Division.
§ Mr. Allason
I am grateful to the Parliamentary Secretary for his gracious words. I am sorry that he had to wait to hear my persuasive speech before he could think of consulting the Parliamentary draftsman. The Amendment has been published for some time and it is a pity that the hon. Gentleman has to go to the lengths of waiting until the Bill gets to another place before accepting this simple Amendment.
However, on the understanding that it is to be made in another place, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.1819
§ Mr. Allason
I beg to move Amendment No. 75, in page 29, line 3, at end insert:'or on such earlier date as to the court shall seem just'.The Amendment deals with the situation when an appellant appeals that a qualification certificate ought to have been issued. This arises in subsection (1). Under subsection (4), if an appeal succeeds, the court may order that the qualification certificate shall be issued although refused by the local authority.
There is a curious piece of timing. Subsection (4) says that the certificate shall be deemed to have been issued on the date of the order. If there is a fiction about that, it is presumably possible to back date it to any reasonable time. We suggest that the court should have discretion to back date the certificate even further than the date of the order.
There are two reasons why a court may conclude that the certificate should be granted although the local authority has refused it. The local authority may have been unreasonable. It may have said that the premises did not meet the qualifications. If the authority is unreasonable, the court may so decide. Presumably, it would have been an honest mistake by the authority and there would be no suggestion of any need to back date the certificate.
But the other reason is that the tenant may have deliberately misled the authority and deliberately delayed the process of introducing the rent decontrol of his house. Should he then have the benefit of this period, which may be a long period, before the case goes to court so that the whole of that period is lost to the landlord? We suggest, therefore, that where there has been action of that kind the court should have power to back-date.
The argument will then run that that will not be much good to the landlord because, even though the court may back-date the certificate, that does not automatically increase the rent. The certificate has to go to the rent officer, who then fixes the fair rent, and the fair rent can run only from the date when the rent officer fixes it.
That is so in the Bill as drafted. Is it fair? Obviously, the first rent cannot be increased because it can start only 1820 when it is fixed by the rent officer, but we suggested in Committee that the period of delay could be changed in accordance with the order of the court. If the court determines, in effect, that there have been two months wasted introducing decontrol, during the periods of either two or four years when the rent gradually increases, there could be a reduction from 12 months to 10 months so that the second and third steps come in that much earlier. That would benefit the landlord. I admit that that is not in the Amendment—we must get this one through first—but it would be a way of compensating a landlord who had been unfairly treated because of a tenant's deliberate delay.
The second objection which may be raised is that that would be unfair on the tenant because it would put him to unexpected expense. He would not have covenanted to pay an increased rent, but the court says that he must and back-dates it. But it will be back-dated by the second increase coming in 10 months instead of 12 months, and that cannot be said to be a terrible hardship on the tenant, bearing in mind also that he is moving from a controlled rent to a fair rent on premises in good repair.
Therefore, neither of the arguments which the Parliamentary Secretary will use against me are valid. I hope that he will accept the Amendment and be prepared to accept the consequential Amendments which can come at a later stage.
§ Mr. Maddan
Among controlled tenants—a large section of the population, perhaps even including Members of Parliament—there is always a proportion of "sea lawyers". The procedure laid down in the Bill both for securing improvements to old houses now not up to standard and for adjusting the rent is extremely long-winded. Earlier, the Parliamentary Secretary explained why that is, saying that it is deliberately so for reasons which seem good and sufficient to him.
We have to provide some balancing consideration to warn the frivolous litigant that he may get a small advantage from delaying, but he will not get an advantage through phase 2, phase 3 and thereafter. This may discourage him from frivolous delay and litigation causing his landlord to appeal.
§ Mr. Eric Lubbock (Orpington)
I am not a lawyer, sea or any other type. If there is frivolity in a case brought by a tenant, is not he liable to pay the whole costs under subsection (3), which says that the court will make no order unless it appears, having regard to the conduct of the parties, that it would be equitable to do so. In the circumstances outlined by the hon. Gentleman where a tenant has no reason for bringing the action, he stands a chance not only of having his rent increased but of paying a substantial amount in costs.
§ Mr. Maddan
The subsection deals with the landlord and the local authority, and I do not think that what the hon. Gentleman says is wholly true. In any case, it must be right for us to do what we can to weight the scales against the possibility of a tenant unreasonably delaying the landlord in securing what is due, at least in the second and third phases of the procedure.
§ Mr. Skeffington
We have tried all the way through to keep a fair balance between landlords and tenants. For example, in Amendments Nos. 72 and 73, we have given such extra period to the landlord or the tenant, as the court may think fit, in addition to the 28 days. This has to be taken into account in considering this matter.
My hon. Friend the Joint Parliamentary Secretary said that if we accepted a more flexible approach he would consider the need for any other compensatory flexibility in other Clauses. We have looked very carefully at this, but so far the case does not seem to be a strong one. Indeed, there are some difficulties, and unfairness might arise, as the hon. Member for Orpington (Mr. Lubbock) has pointed out.
Under Clause 51(4), the certificate is deemed to be issued on the date of the court's order. The Opposition are seeking by the Amendment to say that the certificate may be deemed to have been issued at some earlier date. The hon. Member for Hemel Hempstead (Mr. Allason) pointed out further ways by which desirable objectives could be secured. I think I followed them, but I am not altogether sure. I cannot see the technical consequences of what he is proposing, nor do I see its relevance.
1822 A tenant cannot bring an appeal under subsection (4) to delay paying the higher rent for a longer period, because he can apply only where a qualification certificate has been issued. Clause 51(4) would not apply. His appeal against the issue of a certificate would not stop the landlord from applying to the rent officer for the registration of the rent, subject to the postponement provisions in Clause 52. I do not see the relevance of the Amendment.
A landlord can appeal only in an already qualified case, and no application for registration of a fair rent can be made either before the qualification certificate has been issued or before the appropriate date under Clause 52, under which the conversion in the rent regulation is postponed. At whatever date the certificate is deemed to be issued, it will not alter the date when the application for registration can first be made.
I must also draw the hon. Gentleman's attention to the fact that, under Section 22(3) of last year's Rent Act, a notice of increase may not take effect earlier than the date on which the rent was registered nor earlier than four weeks before service of the notice. In other words, in all these cases the hon. Gentleman's fears are not realised.
There is the additional point which I made in moving Amendments Nos. 72 and 73. Even if the local authority issues a certificate in the first place instead of only after an appeal by the landlord, the landlord cannot apply for the registration of a fair rent until 1971 or 1972. Again, therefore, I cannot see how he will be disadvantaged.
I do not desire to be unfair to landlords, but I do not think that the hon. Gentleman has fully grasped the effect of Clause 51(4) in the circumstances which he mentions.
§ Amendment negatived.