§ 4.28 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Morrison.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The LORD MERTHYR in the Chair]
§ Clause 1:
§ Continuation of certain leases
§ (2) This section applies to any lease for not less than thirty-one years of property in Scotland if, immediately before the ish, the tenant or a member of his family is living in the property or a part thereof in pursuance of the lease.
THE EARL OF SELKIRK moved, in subsection (2), after the first "or" to insert:
(in the case of a tenant dying after the commencement of this Act).
§ The noble Earl said: When I raised on Second Reading the question of the meaning of "a member of his family" in regard to a tenant, the noble Lord, Lord Morrison, said that this matter was established by case law. I should like to ask him what case law he particularly refers to, because there are in several Statutes definitions of a family which have slightly different interpretations. I raise this question for one reason only: so that we may be perfectly clear about what the family is. I am not very concerned about who is in the family and who is not, but we should be clear about 702 what is meant. If you are going to find out the interpretation by case law, you must seek legal aid; and, not only that, when you have obtained legal aid you have no assurance that the bench will take the same view as the legal adviser takes. I have put in the suggestion that the family should be ascertained only when the tenant dies, because that, as near as may be, is the situation envisaged in the Rent Restrictions Acts. As at present drafted, this Bill contains an entirely different meaning from that of the Rent Restrictions Acts which the noble Lord mentioned on Second Reading, because it envisages a family alive and living apart from the tenant himself. That situation is quite different from anything that exists in other law.
§ I should like to say this. It is now May 3, and the Government desire this Bill to be in operation by May 15. I feel that we should have a perfectly clear picture of who is to be covered by the terms of the Act, and who is not. I should like to ask the noble Lord this question. If the tenant dies and leaves his widow in charge of the house at the time of the ish (or termination of the lease) and the property passes by testamentary or other deed to the son who is living apart, is the mother of that son part of his family? As the Bill is drafted, I imagine that she probably would not be. I ask, particularly, that we should not pass a Bill when there is still grave doubt as to who is to be affected by it, and who is not. I beg to move.
Page 1, line 12, after ("or") insert the said words.—(The Earl of Selkirk.)
§ THE PARLIAMENTARY SECRETARY, MINISTRY OF WORKS (LORD MORRISON)
Before I endeavour to answer the noble Earl's questions, it may be as well if I begin by explaining what would be the effect if his Amendment were accepted. The effect would be that the application of Clause 1 would be restricted to the following cases: (a) where the tenant is living in the property immediately before the date of expiry of the lease; and (b) where the tenant dies after the commencement of the Act, and a member of his family is living in the property when the lease expires. These two classes would be covered if my noble friend's Amendment were accepted. On 703 the other hand, the restrictions imposed by the noble Earl's Amendment would be that, where a tenant has died before the commencement of the Act, and his widow or unmarried daughter is living in the property at the date of expiry of the lease, she would not get the benefit of the Bill. Similarly, where the tenant is living elsewhere—he may be in hospital —but has permitted his daughter to occupy the property, she would not get the benefit of the Bill if the noble Earl's Amendment were accepted. I should be very much surprised if the noble Earl really intended to restrict the application of Clause 1 in this manner; but, having studied his Amendment and taken advice upon it, I am satisfied that that would be the case. I should like to remind the noble Earl that the whole object of the Bill is to ensure that where a property is used as a family home, by reason of its occupation either by the tenant or by some member or members of his family, the occupants should be protected by the Bill. I believe that the noble Earl desires the protection of the family as much as I do, and I hope that the explanation I have given may satisfy him that it would not be wise to pass his Amendment.
The noble Earl asked me a question about case law, and recalled a statement that I made on Second Reading. Had the noble Earl told me that he wanted specific cases, I would have armed myself with them. However, I have not done so, and I can only repeat that I am advised that there is on this point a considerable body of case law under the Rent Restrictions Acts which would be equally applicable to the interpretation of this clause. It has been held under these Acts that a member of the family may include, for example, a husband, brother, sister, a niece by blood or by marriage, an adopted child or an illegitimate child: it all depends upon the circumstances as to whether the people I have mentioned have been one of the household for a considerable period, and each case is decided in the courts upon its merits. The tenant or member of his family must be occupying the property, or a part of it, in pursuance of the lease. This Bill, therefore, will apply where the tenant has allowed a member of the family to stay in the property, but will not cover a case 704 where the member of the family is occupying under a formal sub-tenancy granted by the tenant. I do not think I can usefully add more to that explanation, and in the circumstances I hope the noble Earl will see fit not to press the Amendment.
§ THE EARL OF SELKIRK
I thank the noble Lord for his reply, but I should like to ask one or two further questions. I did not ask for cases. What I asked was why the noble Lord assumes that the definition of "family" here should be the same as in the Rent Restrictions Acts. There is no reference whatsoever in this Bill to the Rent Restrictions Acts. Why should not the noble Lord take the definition of "family" from the Crofters' Act? There it is a different definition. People are entitled to know whether this Bill applies to them or not. As to the point that a man may be in hospital, I would suggest that the correct word to use in the Bill would be "residing" in the property. The Bill as drafted says "living" in the property. If a man is in hospital he is still nominally residing at whatever is his proper address. He might even be in Korea, but he still nominally would be residing in his tenancy, wherever it happened to be.
But these are the words which the Government have selected. Is the noble Lord quite sure of the case of the widow with a son who is living apart, or, if I may use the wording used in Roman law, who is foris familiated—that is to say, he has left his family and is living apart, and possibly has been away for many years? The heritable property of the tenancy would pass to the son. and the son would be the tenant at the date in question. In those circumstances, will the noble Lord say that the widow, the son's mother, is part of his family? I have grave doubts as to whether, under the Bill as drafted at present, she would be. I believe it is of the utmost importance that we should be clear on this and the other matters I have mentioned.
§ LORD MORRISON
In answer to the first question of the noble Earl, I should think that there is more connection between this Bill and the Rent Restrictions Acts than with the Crofters' Act. The Rent Restrictions Acts certainly deal with people living in ordinary tenement houses and small homes, and if those 705 Acts bear a closer relation than the Crofters' Act, that is the only answer I can give. With regard to the other questions, the noble Earl and I could argue for a long time across the table and get no further. I would remind him that this is merely a temporary standstill Bill, while the Guthrie Committee, which has already started work, endeavours to find a solution to many of the questions he is putting and to find a permanent solution to this leasehold trouble. Frankly, as the Bill will expire in two years from now and cannot be renewed, I think that any answers I could give would only provoke further questions from the noble Earl and would get us nowhere. Speaking personally, I think the widow would be a member of the son's family, but I am not pretending to dogmatise.
May we take it that the Guthrie Committee, which is starting work now, will have a clear field and will not be trammelled in its work by any precedence which this Bill may establish? The noble Lord has said that this temporary Bill will carry on for a period certain provisions, but that a Committee is meeting to work on the whole subject. Our anxiety is that the continuation of certain provisions by this Bill should not be regarded as a precedent, but that the whole situation should be openly reviewed by the Guthrie Committee.
§ LORD MORRISON
I think that the Guthrie Committee have an entirely free hand to review the whole position.
§ THE EARL OF SELKIRK
The noble Lord has acknowledged that the drafting is pretty unsatisfactory, and I do no more than to draw your Lordships' attention to that fact. We may pass as a temporary measure something which is unsatisfactory. I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 4.43 p.m.
THE EARL OF SELKIRK moved to add to subsection (2):
but shall not apply to any lease which has been assigned at any time between the twenty-first day of November nineteen hundred and fifty and the commencement of this Act.
§ The noble Earl said: I drew attention to this matter in the course of my Second 706 Reading speech. This Bill was introduced into Parliament on November 21 and will not become effective until May 15. During that time it is open to anyone, if they want to take advantage of the Bill, to receive an assignation of a tenancy property. It appears to me that it is quite improper that, during the period when a Bill is under discussion, it should be open to anyone to put themselves into a position to take advantage of that Bill. As a matter of principle, I think it is entirely wrong. I have no doubt that the noble Lord, Lord Morrison, will say that it is very unlikely to happen, and will happen in only very few cases. I accept that it will happen very rarely indeed, if at all, but I still say that it is quite wrong that we should accept and pass a Bill through which a carriage and pair could be driven quite openly, and by which it is quite possible that some "smart Aleck" may obtain a material advantage from the existing tenant.
§ We have taken the point of view—and I accept it—that anybody who has had a property in his family for perhaps nearly a hundred years and who has looked after it and maintained it well, suffers hard-ship if it is said that he should hand that property over to the proprietor at the end of the period. I accept that entirely, and I have no doubt that any proprietor who took his full legal rights would, in the opinion of the majority of people, be exercising rather sharp practice. But this is an entirely different position. Here is somebody who has had the property assigned to him since November 21, and who knew about this Bill and had seen it. I want to emphasise that. I am not refer-ring to testamentary settlements in an intestacy or otherwise. He is somebody who has had property assigned, with perhaps six months or less to run. I suggest, with respect, that he should not be in a position to take advantage of this Bill. He is in an entirely different category from those who have been in a tenancy for a very long time to whom a great deal of consideration can very properly be given. I am moving accordingly that no assignation which has taken effect since November 21 shall give the benefits which are laid down in this Bill. I beg to move.
Page 1, line 13, at end insert the said words. —(The Earl of Selkirk.)
§ LORD MORRISON
I have taken a good deal of trouble over this Amendment, and I hope the noble Earl will forgive me if I make a fairly full reply upon the point which he raises. As the noble Earl knows, his Amendment would exclude from the benefits of the Bill any lease which had been assigned between November 21, 1950, and the commencement of the Act. May I say first, with all respect, that this Amendment does not seem to me to be really appropriate to conditions in Scotland, where, so far as I have been able to ascertain, there is no evidence whatever of any traffic in what might be called "fag-ends" of leases. In view of the difficulty of obtaining a reasonable price for a lease which is due to expire shortly and which, under the Bill, can be continued for a maximum period of only two years, it seems to me that no tenant in Scotland is likely to dispose of his lease until the recommendations of the Guthrie Committee or the terms of the permanent legislation are known. In any event, this Amendment would mean that where the tenant of a lease had, after November 21, 1950, assigned the lease to his son or daughter, or where the tenant had died after that date and the lease had passed to his trustees and had then been assigned by them to his widow, no protection would be afforded by the Bill. I cannot see any possible justification for excluding protection in such cases, and I should be surprised if the noble Earl suggested that it should be excluded.
There is a further point. The noble Earl's Amendment does not make it clear whether a partial assignation would exclude the application of Clause 1. If a partial assignation were struck at, I am advised that it might lead to difficulties especially in regard to tenements in Scotland, since the assignation of the lease in respect of one house in a tenement might lead to the loss of the protection of the Act for the whole tenement. I must also draw the noble Earl's attention to the fact that there is no restriction on the landlord as regards the date when he acquired the reversion of the lease, and, therefore, this curious position might arise. If I accepted the Amendment we might get a position which would not be tolerated under the Rent Restrictions Acts. For example, a landlord who acquired the reversion in February, 1951, or even later, would be able, by the noble 708 Lord's Amendment, to evict a tenant who had acquired and occupied property since December, 1950. It occurs to me that what the noble Earl is aiming at by his Amendment may be to set up a sort of qualifying period for obtaining the benefits of the Bill. If so, it seems to me a very laudable desire, but, if I may respectfully say so, entirely out of place in relation to a temporary Bill designed to preserve thestatus quo until long-term legislation can be worked out. The desirability of some qualifying period may possibly form the subject of inquiry by the Guthrie Committee, and if that Committee make any recommendation on the point it will no doubt be considered in connection with the permanent legislation. When that day comes in two years' time, it is possible that the noble Earl may be on this side of the House and I may be on the other side, in which case it will fall to him to deal with the recommendations of the Guthrie Committee.
§ THE EARL OF SELKIRK
I thank the noble Lord for his reply. It would, perhaps, be exaggerating to say that I found it over-clear. I think he said that the position in question was not likely; but, having said that, he envisaged a situation in which fathers would assign their leases to sons—which is even less likely. I must say that I think the Bill is sloppily drafted. This is apparent, for instance, in the matter of reversion. The noble Lord spoke of a landlord who would be likely to get the advantage through having acquired the reversion in February, 1951, but there is surely no reason why a landlord should not get the reversion now. I think that in this matter the Bill leaves a great loophole which ought to be filled. The effective date should have been prior to the original introduction of the Bill in the other place; then the Bill could have been made operative for two or three years. That would have made the Bill a more effective one. However, in the circumstances I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 agreed to.
§ Clause 3:
§ Restrictions on enforcement of irritancy, etc.
§ 3.—(1) While, in pursuance of a lease of property in Scotland for not less than thirty-one years and terminating at an ish falling within 709 the period specified in subsection (1) of section one of this Act, the tenant or a member of his family is living in the property or part thereof it' shall not be lawful for the landlord during the aforesaid period—
- (b) to exercise any power conferred by the lease to resume possession of the land or any part thereof; or
- (c) to bring any action of damages against the tenant for failure to comply with any term or condition of the lease
§ THE EARL OF SELKIRK moved, in subsection (1) to omit "or" in paragraph (b) and the whole of paragraph (c). The noble Earl said: I beg to move this Amendment—for one reason only in view of the noble Lord's Statement.
§ LORD MORRISON
I was going to ask the noble Earl whether he would agree, since this Amendment and the next two in his name on the Marshalled List are so closely associated, to handle them together.
§ THE EARL OF SELKIRK
I agree, but I propose to do little more than move them formally. There are only two points that I wish to mention. The first is that the amenities of the neighbourhood must be preserved—but that, I think, is already covered by other legislation. The second is that I want to provide for some pressure or sanction to be imposed to prevent the continuance of a bad lease. I read that it was said in the other place that in very bad cases it appeared possible for action to be taken on interdict against a tenant. I am merely asking the noble Lord now whether he is in a position to say whether or not he thinks that is possible. I beg to move.
Page 2, line 16, leave out from ("thereof") to end of line 19.—(The Earl of Selkirk.)
§ LORD MORRISON
I will endeavour to explain the position to the noble Earl. If his Amendment and the next one in 710 his name on the Paper were accepted, the result might be that a landlord by raising an action of damages and obtaining a decree, would deprive the tenant of his means and prevent him from paying the rent and fulfilling other conditions of the lease, thus enabling the landlord to obtain possession of the property. I am advised that the Amendment might thus enable a landlord to force a tenant out of the property by a "back- door" method, and so frustrate the whole purpose of the Bill. It is true that the third Amendment provides for the suspension of any action of damages by the landlord but as drafted it provides only for the suspension of proceedings where a lease has actually been continued under Clause 1. A landlord would not therefore be prevented from pursuing an action for damages in the interval between the passing of the Bill and the date of expiry stipulated in the lease. He might, therefore, be able to obtain a decree in any such action of damages before the date of expiry of the lease was reached. This, perhaps, is not the intention of the Amendment. Nevertheless I am advised that this is its effect. It has to be kept in mind that Clause 3 prevents a landlord from raising an action of damages only during the limited period of two years. In these circumstances I see little point in the third Amendment, which enables an action to be brought during the two years but provides for its suspension until the end of that period. I appreciate that the noble Earl's intention is to deter a bad tenant from allowing his property to fall into disrepair, or from contravening any other condition of the lease. I should like to point out, however, that although this Bill prevents a landlord from raising any action of damages against a tenant for any failure to comply with the terms or conditions of the lease, the landlord would have other remedies if the tenant were committing a nuisance or were annoying adjoining tenants or were using the property for purposes prohibited by the lease. The landlord, in such circum-stances, could raise an action of interdict. Moreover, if the tenant failed to implement specific obligations of the lease— for example, to keep the property wind and water-tight—the landlord could raise an action requiring the tenant to implement these conditions. It has also to be remembered that Clause 3 does not destroy the landlord's right to bring an action of damages. His right is merely 711 suspended, and at the end of the period of two years, and subject to the provisions of future legislation, his rights will revive.
Apart from these arguments I must add that I cannot find any suggestion that tenants will use Clause 3 as a means of evading their obligations under their leases. The great majority of tenants actually occupy their properties and it will obviously be in their own interests to maintain their properties in good repair, since to do otherwise would merely increase their liability for repairs at the end of the two-years' period, and per-haps prejudice their chances under the long-term legislation. Further, the possibility cannot be overlooked that an unscrupulous landlord might raise an action or threaten to do so in order to bring pressure to bear on a tenant to surrender his lease. If a tenant has been a good tenant in the past, and the land-lord has had no grounds for taking action against him before the introduction of the Bill, I should think it highly unlikely that the tenant will become a bad tenant during the two years. If, on the other hand, a tenant has been a bad tenant in the past and the landlord has not made use of the remedies then available to him, the landlord ought not to complain that the present Bill will prevent him from using some of these remedies during the short interim period.
Finally, may I thank the noble Earl for putting down these Amendments and initiating these discussions. I have endeavoured to meet his arguments, but I fear that I have not altogether succeeded, although I have done my best. To have accepted his Amendments would, I am advised, have weakened the Bill to some considerable extent, and probably endangered its further passage into law. I am sure the noble Earl does not desire that. Therefore, bearing in mind that this is only a temporary measure, with a life definitely limited to two years, and remembering also that the Guthrie Committee which will recommend permanent legislation, have already been appointed and are at work, I hope the noble Earl may now see his way to accept the position and permit the Bill to reach the Statute Book without further delay.
§ THE EARL OF SELKIRK
I thank the noble Lord for his statement: I think he has answered the point I raised. I agree 712 that in the vast majority of cases the question of repairs is of purely academic interest, but in my view we are quite wrong in giving the tenant protection by Statute against carrying out repairs. We have recently seen letters in the newspapers on the point. This may turn out to be a more long-lived Bill than we anticipate, and I wanted to make it clear that I consider it highly unsatisfactory as at present drafted. Certainly, by reason of its limited sphere, it seems to me totally unsatisfactory as a permanent Bill. If the noble Lord will agree with me there, I am prepared, by leave of the House, to withdraw this Amendment.
§ On Question, Amendment negatived.
§ Clause 3 agreed to.
§ Remaining clauses agreed to.
§ Bill reported without amendment.
§ Then, Standing Order No. XXXIX having been suspended (pursuant to the Resolution of May 2), Bill read 3a.
§ LORD MORRISON
My Lords, I have it in command from His Majesty to signify to the House that His Majesty, having been informed of the purport of the Long Leases (Temporary Provisions) (Scotland) Bill, gives his consent, as far as His Majesty's interest is concerned on behalf of the Crown, that the House may do therein as they shall think fit. I beg to move that this Bill do now pass.
§ Moved, That the Bill do now pass.— (Lord Morrison.)
§ On Question, Bill passed.