FIFTH SCHEDULE

HL Deb 19 July 1954 vol 188 cc1150-72

Page 64, line 37, leave out ("or tenant's initial repairs").—(The Lord Chancellor.)

LORD PETHICK-LAWRENCE

My Lords, on a point of Order. I venture to think we are proceeding in a very unusual way by moving about among the various clauses of the Bill as the noble and learned Lord proposes. I suggest that though we are quite prepared to discuss the amending of later clauses on a Motion dealing with earlier clauses, we cannot deal with later clauses and then go back and deal with an earlier one. I venture to think that that would be quite contrary to all our practice.

THE LORD CHANCELLOR

My Lords, I am entirely in the hands of the House. It is undoubtedly an unusual way of proceeding. But as these Amendments are related, and it is a very complicated story, I thought the course which I have suggested might be for the convenience of the House.

LORD PETHICK-LAWRENCE

The point is that I do not think we can deal with later Amendments and then go back and deal with an earlier one.

EARL JOWITT

I think the course which the noble and learned Lord who sits on the Woolsack was proposing to take is a very convenient one, but, if I may humbly suggest it, I think it would be better if he put Amendment No. 3 now and got the decision of the House on that. Then, when he comes to the others, he can say, "These are consequential" and he can get the agreement of the House to them.

THE LORD CHANCELLOR

I will do whatever is convenient to the House. In fact the House has approved Amendments 1 to 13 except for Amendment 3.

LORD SILKIN

That means that if one has any comment to make, say on Amendment No. 32, that comment can be made when 32 is called.

THE LORD CHANCELLOR

I will come back to that.

Amendments, by leave, withdrawn.

THE LORD CHANCELLOR

I beg to move Amendment No. 3 which stands in my name. It is purely a drafting Amendment. The words to be left out are, in fact, inappropriate in the context in which they occur. I beg to move.

Amendment moved— Page 7, line 29, leave out ("paragraph (b) of").—(The Lord Chancellor.)

On Question, Amendment agreed to.

3.39 p.m.

LORD OGMORE moved, after Clause 14 to insert the following new clause: 15. Where a sub-tenant of premises to which this Part of this Act applies is in occupation of them at the date when the term granted by the superior tenancy expires and where the sub-tenant takes advantage of his rights under this Act and continues in occupation of the premises then so far as the tenant is concerned provided he does not occupy any part of the said premises the covenants on the part of the lessee contained in the superior tenancy shall be deemed not to apply to the tenant or to anyone claiming through or under him other than the sub-tenant in occupation of the premises as aforesaid.

The noble Lord said: My Lords, I beg to move this Amendment which stands in the name of my noble friend Lord Silkin and myself. It is, I am afraid, a rather technical Amendment, in the sense that the wording is rather technical, though, of course, it will affect quite a large number of people in a way which I am quite certain most of them now fail to appreciate. I have tried to draft the Amendment so as to establish the principle which we want to establish. As my noble friend Lord Silkin has already pointed out it is very difficult for Members of this House like ourselves, who have not the support of Parliamentary Counsel or a Department behind us, to be quite sure that we have put down the best form of words to be included in the Bill. If the principle is accepted, we hope that Parliamentary Counsel will make any adjustments which there may have to be. Your Lordships may remember that during the Committee stage I put down a clause very similar to this, and the noble and learned Lord who sits on the Woolsack asked me to explain it—which I did, or tried to do. The noble and learned Lord said that he would like the clause to be put down for the Report stage, and he also pointed out that under the wording of my original clause a sub-tenant who was in occupation of the premises might be excluded. I need hardly say that he was right, and in the wording of this Amendment I have excluded the sub-tenant from the provisions of this clause.

This clause particularly affects those areas, like South Wales and Lancashire, where many houses are under leasehold, but it also affects other areas. I think it will be generally agreed that occupying tenants, if they take advantage of their rights under the Bill, are in a stronger position than before. I do not think there is any doubt about that. Occupying sub-tenants are also in a stronger position than before; but non-occupying tenants, those who have let their premises, though they do not own the freehold, are in a weaker position than they were in before. I cannot believe that this was the intention of the Government. This is not a political matter at all, but it is going to affect very largely what we usually term the "middle class," and I cannot believe that a Conservative Government have gone out of their way to injure the middle class. The Bill destroys the bargaining power of the non-occupying tenant. He is politely waved away from any rights which he may have from his position as a tenant of the premises, yet his liabilities remain. Previously he could have bargained with the landlord or the tenant—with the one to relieve him from obligations under the head lease and with the other to accept obligations under the head lease. Now he can do neither.

This Bill recognises and defines a new relationship between the superior landlord and the occupying sub-tenant. It may be said, of course, that the non-occupying tenant is in no worse position than the occupying tenant who vacates his premises voluntarily. This is not really so, however, because, first of all, in such a case the occupying tenant makes a voluntary decision and, secondly, the premises are in his own hands and not in the hands of someone else, so that he has had some opportunity of preventing the premises from getting into a state of dilapidation. In Committee stage the noble and learned Lord on the Woolsack referred to the rights of such a non-occupying tenant under the Landlord and Tenant Act, 1927, but as I understand it, reading Section 18 (1) of the Act, the first part of the subsection does not relieve him of his obligations to keep the premises in repair and to put them in repair on termination of the lease. It only limits the extent of the liability—namely, the amount by which the value of the reversion to the landlord, whether immediately or not, of the premises is diminished owing to the breach of covenant. So that the Landlord and Tenant Act does not save him from liability; it only, so to speak, fixes the limit of his liability.

It must be remembered, in assessing the amount of this liability, that under the Landlord and Tenant Act no allowance is made for the increased value of the property to the landlord through rights having been determined; but equally the landlord is not precluded from recovering damages because the premises are let to a new tenant (or, as I submit, a new subtenant), at a full economic rent, the latter having agreed to put the premises in a good decorative state of repair within a specified time, if repairs have to be carried out and the value of the reversion has been diminished by breach of covenant. This is not affected by any arrangement for carrying out repairs which the landlord has made with the new tenant (or, as I submit, with the new sub-tenant); so that, in effect, the mere fact that the landlord is able to get someone else to carry out the obligations under the lease does not release the non-occupying tenant from his obligations to do so, if his failure to do so has diminished the value of the reversion, as it is obviously bound to do in some sense or other. The tenant under the lease will be responsible for the decorative repairs and will be required to leave the premises in good and decorative order. He will not be able to apply to the court for relief under Section 147 of the Law of Property Act, 1925, because the section has no reference in four classes of case, any of which may apply, and the last certainly will—namely, the case of a contract to yield up the premises in a specified state of repair at the end of the term. The Leasehold Property (Repairs) Act, 1938, does not apply, since it envisages relief for failure of covenant to keep a house in repair; and here again the test is damage to reversion.

I am afraid that this is a very technical matter. I have tried to seek out the various Acts of Parliament which I think apply, and I see that under them the non- occupying tenant can get no relief whatsoever—or at all events very little—from his obligations under the lease. I appreciate the difficulties which no doubt the noble and learned Lord on the Woolsack will point out to your Lordships. Of course, there are many difficulties on the other side. It is difficult to relieve the tenant. It may be said that if the tenant is relieved of his obligations and they are transferred to the sub-tenant, there is nothing to prevent a tenant who is so inclined from granting a sub-tenancy towards the end of his lease. That is perfectly true. But there is also nothing to prevent him from assigning his lease; and if he does so, then the man in possession would not be a sub-tenant but an occupying tenant and, therefore, would receive the benefit of any rights and remedies of this Bill. No doubt there are other difficulties, and I fully appreciate that that is so. However, I also say that there are injustices, and I feel that it would be a substantial injustice if we were to single out the non-occupying tenant and prevent him from making any bargain, with either his sub-tenant or his landlord, and at the same time expect him to carry out all the obligations under the head lease. I feel that we cannot by law bind one party to a contract and allow the other party to go free. I think that is bound to be wrong. Though this is a difficult matter, I believe that it is within the wit of the Government to provide some sort of remedy for what seems to me to be an undoubted injustice. I beg to move.

Amendment moved—

After Clause 14, insert the following new clause— ("15. Where a sub-tenant of premises to which this Part of this Act applies is in occupation of them at the date When the term granted by the superior tenancy expires and where the sub-tenant takes advantage of his rights under this Act and continues in occupation of the premises then so far as the tenant is concerned provided he does net occupy any part of the said premises the covenants on the part of the lessee contained in the superior tenancy shall be deemed nit to apply to the tenant or to anyone claiming through or under him other than the sub-tenant in occupation of the premises as aforesaid.")—(Lord Ogrnore.)

3.49 p.m.

THE LORD CHANCELLOR

My Lords, I am sorry that I cannot accept this Amendment. As the noble Lord, Lord Ogmore, says, this is a matter of infinite complexity and, if I may say so, he has touched only the fringe of it. The Amendment proposed lets out altogether a tenant who has granted a sub-tenancy, and for that it is difficult to see any justification at all. Here is a tenant who has entered into a bargain with his landlord. He has thought fit to grant a sub-tenancy, it may be for a long term or it may be for a short term. It is difficult to see why, by that fact, he should be relieved altogether of his bargain.

I have said that the matter is complex, and, in truth, it is. The noble Lord has made one differentiation which I think is really vital. I am afraid that I must be technical here, and I am sure your Lordships will forgive me. The noble Lord's Amendment deals with the non-occupying tenant; that is to say, the tenant who stands between the original landlord and the sub-tenant, whom we will assume to be in occupation. The sub-tenancy that is created may itself be a long or a short one. It may be one which comes within Part I of the Bill, in which case the sub-tenant in occupation is the person who is enabled to make a bargain with the landlord; and if he has made such a bargain with the landlord, it might conceivably (I say no more) act in a way which was detrimental to his landlord, who was the first tenant. But that is provided for by the Bill, and I venture to think that the noble Lord has overlooked it, as he well might.

Perhaps I may take a simple illustration. Let me assume that A is the freeholder, B the lessee at a ground rent and C the sub-lessee, the occupying tenant, at an improved ground rent, a man who therefore comes within Part I. If C retains possession as a statutory tenant under Part I, B cannot enforce against C the covenants in the sub-lease; B is therefore relieved of liability under the covenants of the head lease. If the noble Lord will look at Paragraph 11 of the Fifth Schedule—and it takes a long time to get to Paragraph 11 of the Fifth Schedule—he will see that that is so; and so far as the original tenant is concerned, where he has created a sub-tenancy which is itself a long lease and falls within Part I, then the object which the noble Lord has in mind is attained, and the original lessee—or his successor in title—is relieved of his liability under the original lease. I believe that that point has escaped the noble Lord, as it may well do, and that in fact he is entirely met on that point.

We now come to something much more difficult, and I am quite unable to meet the noble Lord. He says that there are difficulties in drafting. There are insuperable difficulties in drafting anything which will give effect to what the noble Lord wants and yet not do grave injustice to the landlord. A landlord, without creating a sub-lease which falls within Part I, may yet create an infinite variety of leases, imposing any sort of obligation you like upon his sub-tenant. It may be twenty-one years at a rack-rent, containing wide obligations in regard to repair; it may be a weekly tenancy, which very likely contains little. How are we to deal with such a case as that? The only way is to leave the man exactly as he was before this Bill was passed. I venture to think that there is a great deal of fallacy in the noble Lord's suggestion that in such a case as this—a case which does not fall under Part I, as a whole, but only under the new Clause 15—a subtenant is prejudiced in any way by the provisions of this Bill. He is in exactly the same position as any other tenant who is under an obligation to repair.

Your Lordships will remember that that was the subject of special reference to the Committee which was presided over, first, by Lord Uthwatt, and later by Lord Justice Jenkins. The question that was put to that Committee, which applies equally to the tenant whom the noble Lord has in mind, as to any other tenant, was: Whether the rights of a landlord to impose and enforce covenants to repair should be further restricted, and in what manner. I dealt with this point at some little length on the earlier stage. I put to your Lordships the reasons which animated the Committee and led them to the conclusion to which they came, which was that the existing law did justice as between landlord and tenant. There are already substantial provisions in the Act of 1927 and the Act of 1938 which mitigate the position of the tenant, and the Committee, dealing with this matter, said—and it was a unanimous Report—that they did not think any further relief was necessary. They were animated by a number of reasons into which I need not go again.

However, I would put this as one reason. This is a matter of a degree of technicality which, if I do not use too strong a word, is really appalling. I feel the greatest anxiety about this measure, and about the preceding measure which was lately before this House—namely, the Housing Repairs and Rents Bill. In a subject matter necessarily artificial we are increasing the artificiality to a degree which frightens me. For how the practitioner in the law is going to find his way through the complex provisions of Acts like these, I really do not know. But this I do know: if we attempt to alter the law any further in regard to the position of the tenant, where the subtenant gets the benefit of this Bill, it will land us in a degree of complexity which will be unparalleled. I say, as I have said before, that there will no doubt be cases, as a result of this Bill, where the mesne tenant will be prejudiced; there will be others where I am quite sure he will be greatly benefited, because the result of the tenant's staying on on the terms of his original lease, containing obligations in regard to repair of which the landlord will get the benefit, will greatly redound to his, the mesne tenant's, advantage. There may be cases the other way; there may be cases where the balance is about even. But of this I feel positive: that it is impossible, either by such an Amendment as the noble Lord has put down, or by any other Amendment that the wit of man can devise, to do justice in every case; and we have to adopt a rough-and-ready method of dealing with it. It is simple enough to adopt a rough-and-ready method of dealing with it, because it merely means not altering the law in this respect.

One final word I would say about this. Do not let us forget that the main purpose of this Bill is not to deal with questions of repair but to secure to the occupying tenant his continued occupation. That is achieved. If we have also been able to do something in the way of altering the relations of landlord and tenant in regard to repair, that is by the way and does not touch the main purpose of the Bill, which, as I have said, is to give the occupying tenant the right to remain in occupation. That I have satisfied the noble Lord I cannot hope, but I cannot advise your Lordships to accept this Amendment, and I hope that he will not press it.

LORD OGMORE

I am grateful to the noble and learned Lord for going into this matter so carefully and for giving us such a lucid explanation. As I said when moved this Amendment, this is a complex matter, and I, for one, as a practitioner of the law, do not wish to add to the complexity of the law. To my mind, as the noble and learned Lord has said, it is complicated enough already, and these two Bills, one of which we have passed and the other of which we are now passing, have not by any means detracted from the complexity of the law of landlord and tenant. I must say, however, that I do not entirely blame myself for not noticing this part of the Schedule. It is in rather abstruse language. I did raise this question on Second Reading, to which I got no reply from the Government spokesman. I do not blame the Government for that, but the fact remains that I did not get a reply. I raised the matter again in Committee, and again got no reply. It is not until now, at a late stage of the Bill, that my attention has been drawn to the Schedule. Therefore, I cannot hold myself entirely to blame for not spotting this rather abstruse provision. I am very pleased indeed with the assurance of the noble and learned Lord on the Woolsack that the provision in Paragraph 11 of the Fifth Schedule does cover, at all events the main point that I have in mind. With that agreeable assurance, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 22 [Interpretation of Part I]:

THE LORD CHANCELLOR

My Lords, I do not know whether I should treat this Amendment as having been before the House already, but perhaps I had better formally move it. It is a purely consequential Amendment, and was dealt with on the first Amendment. I beg to move.

Amendment moved— Page 19, leave out lines 27 and 28.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 23 [Tenancies to which Part II applies]:

THE LORD CHANCELLOR

My Lords, this Amendment also I owe to the suggestion of the noble Lord, Lord Silkin. The reason for it is that there was an ambiguity in the drafting. Clause 23 (3), as printed, says that … the expression 'the holding,' in relation to a tenancy to which this Part of this Act applies, means the property comprised in the tenancy, there being excluded any part thereof which is occupied neither by the tenant nor by a person employed by the tenant for the purposes of a business by reason of which the tenancy is one to which this part of this Act applies. As the Bill was originally drafted, and as I have read it, there was some doubt whether the words, "for the purposes of a business by reason of which," and so on, qualified only the person employed by the tenant or the tenant as well. It was intended to qualify only the person employed by the tenant, and the words I now propose to insert, "and so employed" after "tenant" give effect to that intention. I beg to move.

Amendment moved— Page 20, line 19, after ("tenant") insert ("and so employed").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 30 [Opposition by landlord to application for new tenancy]:

THE LORD CHANCELLOR moved, in subsection (1), to leave out paragraph (d). The noble and learned Lord said: My Lords, this Amendment is also one for which the noble Lord, Lord Silkin, pressed. Clause 30 deals with the grounds on which a landlord (we are in Part II of the Bill now) may oppose an application under subsection (1) of Clause 24 for a tenancy. Paragraph (d) provides that a landlord might oppose such an application on the ground that the tenancy agreement itself contained a bargain between the parties as to the terms on which a renewal might be granted. The view which Her Majesty's Government took was that if the parties had already agreed the terms upon which there should be a renewal it was not right to give them, in addition, the statutory right of renewal for which the Bill provided. They made their own bargain, so why give them something else? The noble Lord, Lord Silkin, pointed out that the terms offered in the Bill might be more favourable than those for which the agreement provided, and said that it was not fair that the tenant, in such circumstances, should be deprived of the statutory provision. We have considered that, and we think that there is at least enough in it to make the concession for which the noble Lord was eager. Accordingly, we agreed that that provision shall be deleted from the Bill. The landlord will not be able to avail himself of there being such a provision as paragraph (d) prescribes, to oppose a tenant's application for a new tenancy. I do not think the noble Lord can complain of my Amendment, or that any of your Lordships on either side of the House will do so. I beg to move.

Amendment moved— Page 24, line 21, leave out paragraph (d).—(The Lord Chancellor.)

LORD SILKIN

My Lords, not only do I not complain of the Amendment, but I am very grateful for it. I am grateful both for the sympathetic consideration which has been given to it, and also for the fact that it is an improvement in the Bill.

On Question, Amendment agreed to.

Clause 37 [Compensation where order for new tenancy precluded on certain grounds]:

THE LORD CHANCELLOR

My Lords, Amendments Nos. 18 and 19 go together. They are purely drafting in order to remove a possible ambiguity. I beg to move.

Amendment moved— Page 28, line 26, after ("precluded") insert ("(whether by subsection (1) or subsection (2) of section thirty-one of this Act)").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Amendment moved— Page 28, line 27, leave out ("on") and insert ("by reason of ").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 55 [Compensation for possession obtained by misrepresentation]:

4.8 p.m.

LORD SILKIN moved, after subsection (1) to insert: (2) Where under Part I of this Act an order is made for possession of the property comprised in a tenancy on the ground contained in paragraph (a) of subsection (1) of section twelve, or under Part II of this Act the court refused an order for the grant of a new tenancy on the ground contained in paragraph (g) of subsection (1) of section thirty, then without prejudice to the rights of the tenant under the last preceding subsection, if it appears to the court after the expiration of two years from the date of such order or refusal that no effective step has been taken by the landlord to carry out the demolition or reconstruction of the premises, the court may order the landlord to pay to the tenant such sum as appears sufficient as compensation for damage or loss sustained by the tenant as the result of the order or refusal unless the court is satisfied that the failure or omission to take such step as aforesaid is due wholly to circumstances which could not reasonably have been foreseen at the date of such order or refusal.

The noble Lord said: My Lords, this is similar to an Amendment which I moved at the Committee stage, but I have taken advantage of the statement that was made by the noble and learned Lord, the Lord Chancellor, in opposition to the previous Amendment, and I hope that I have suitably altered it to meet some, if not all, the objections that he then made to it. I can put the grounds for this Amendment very shortly. As the noble and learned Lord said on an earlier Amendment, the main purpose of this Bill is to provide security of tenure for persons whose tenancy is coming to an end. But the Bill, as it stands, provides a number of exceptions in both Parts—both in the case of a dwelling house and in the case of business premises. One of those exceptions, and the exception that is dealt with in this Amendment, is where the landlord seeks to obtain possession because he wants to redevelop his premises and he cannot redevelop without getting possession. There is no difference of opinion that, if the landlord really intends to redevelop, that is a proper ground for his getting possession.

On the Committee stage I had an Amendment down that the landlord should provide alternative accommodation. That did not commend itself to the Government, and I have not put such an Amendment down again. There was a good deal of discussion on this matter in another place. It was felt that a landlord might say that he wanted possession on the ground that he was going to redevelop. He might even, as required by certain provisions in the Bill, go so far as to prepare plans and get town planning approva land by-law approval. He might go through all those motions but, nevertheless, he might never intend to carry out the redevelopment. He might be doing all that merely in order to get possession with a view later to selling the premises at a higher price with vacant possession.

Accordingly an Amendment was introduced at a later stage in the Bill in another place which provided that, where a landlord obtained an order for possession by withholding material facts or by misrepresentation, that should give rise to an action for damages on the part of the tenant. The point I am making—I hope the noble and learned Lord will not think it is too subtle—is that a landlord may all the time never intend to carry out redevelopment. He may go through all these motions. It may be quite impossible for a tenant to prove misrepresentation or concealment of the facts, because the state of a man's mind—I know it has been held judicially—is a question of fact; but it is an extremely difficult thing to prove in a court of law. I submit that it is, in practice, impossible for a tenant to go to the courts and say: "The landlord never intended to carry out this redevelopment."

Moreover, the noble and learned Lord, on the Committee stage, pointed out that a landlord might quite genuinely have been compelled to change his mind, through changed circumstances. Of course, a landlord may even have died soon after and thus been completely prevented from carrying out this redevelopment. Therefore the earlier Amendment that I submitted, which was that, if nothing had been done by the end of two years, if there had been no redevelopment by then, the landlord should be held liable for damages, was, I quite see, rather too wide, and did not provide for circumstances where the landlord had genuinely intended to redevelop but had found himself unable to do so. In view of the difficulty of establishing what was in the mind of a landlord when he went to the court and obtained an order for possession on the ground that he wanted to redevelop, I say, in effect, in this Amendment: "Let us see what the position is at the end of two years. If at that time he has not redeveloped, then it should be for him to show reasons why he did not redevelop." In other words, the onus should then be on him. If he is unable to discharge the onus, then he should be responsible for damages in the same way as if he had misled the court; but, if he can satisfy the court or, in most cases, the late tenant—that would be quite sufficient—that he had good reasons for not proceeding with the redevelopment, there will, of course, be no legal penalty imposed upon him. It seems to me a perfectly reasonable Amendment and one which would remove any possible suspicion on the part of a tenant and on the part of the general public that it is going to be easy to evade the provisions of this Bill. We are out to give security to tenants. I recognise that in proper cases we ought to encourage redevelopment. We do not want to do anything to prevent proper redevelopment. What we do not want, however, is that landlords should be able to shelter behind the provisions relating to redevelopment, get possession of their premises and then use them for some other purpose. This provision, apart from being a beneficial one which would enable tenants to get the benefit of this Bill, which it is intended that they should get, would have a salutary effect on landlords who had in mind the possibility of evading the provisions. If this were in the Bill, no landlord faced with the likelihood that he would have to establish that he had not carried out redevelopment as he had said he would because of circumstances which had arisen since the making of the order, would take a chance and face the likelihood of having to pay damages. While dare not hope that I have correctly drafted this Amendment—probably, it would mean fourteen or fifteen consequential Amendments to the Bill—nevertheless, I hope that the Amendment as I have drawn it is sufficiently clear to justify our having a discussion on its merits. I beg to move.

Amendment moved— Page 40, line 36, at end insert the said subsection.—(Lord Silkin.)

4.17 p.m.

THE LORD CHANCELLOR

My Lords, I am sorry that, having given the noble Lord two or three Amendments already, I am unable to give him this one. Any court embarks upon a very serious question when it seeks to find out what is a man's intention at any given moment. Indeed, if I can call upon my recollection, there has been some conflict of judicial opinion upon this point. One old saying that I remember is: The devil himself knoweth not the mind of man, but he shall be judged by his acts. Another saying is: The state of a man's mind is as much a fact as is the state of his digestion. Both observations have high judicial authority. So far as the immediate subject matter is concerned, the position is simply this. If a landlord takes advantage of the relevant provisions of this Bill, goes to court and makes a misrepresentation or conceals material facts and thereby obtains an order to which he would otherwise not be entitled, it is very right and proper that he should suffer accordingly. But it is quite a different state of affairs if, for reasons which lie not within his control, he is unable to carry out his genuine intention. I dissent altogether from the proposition, which is implicit in the noble Lord's Amendment, that a man must prove that he is innocent. It is a golden thread running through our law that, if a man is charged with any offence, whether it be a criminal offence, a fraud in law or anything of that kind, that must be proved against him. I object altogether to an Amendment in which the suggestion is implicit that he has been guilty of fraud, misrepresentation or concealment because for two years no effective step—that is the word—has been taken.

I will concede this to the noble Lord out of my somewhat long experience of the law: that the onus will quickly shift. Though it is perfectly true the Amendment as it stands states that it is for the tenant to establish that his landlord has been guilty of misrepresentation or concealment yet the burden will quickly, shift; and if for two years no effective step, whatever that may be, has been taken, I cannot conceive that the landlord would not find himself in the witness box and in the position of having to explain whether or not what he had said was true. I think that if for two years no effective step had been taken, he would find some embarrassment and great difficulty in satisfying the court that he had not concealed facts, that he had not made some misrepresentation. Then he would suffer accordingly.

But I dissent altogether from the proposition that, because of the mere fact that for two years no effective step has been taken, the burden upon him is then to prove that he was acting honestly and with propriety. All manner of things may have happened in the two years which have made it impossible, or at any rate unprofitable, for him in that time to take an effective step. I would not put him in this position: that as the months go by he does not know whether he, honest man enough, may not be attacked on the ground that he has not taken an effective step, and be led into taking some step or other in the process of development which he would have deferred. With great respect, I think that this is a case where we had much better stand by the clause in the terms which it originally provided, which will, as I firmly believe, be an adequate safeguard against the sinister sort of creature which the noble Lord contemplates in his hypothetical landlord. After all, there may be such men; but I do not think there are many men who would deliberately go through the motions of preparing for development—motions which would look as if he were about to develop—go to the court, it may be perjure himself and say that he intended to develop, when all the time he did not mean anything of the kind. If there are such men, I firmly believe that under the clause as it now stands they will be caught and will pay due compensation to the tenant. For those reasons I am sorry that I cannot accept the Amendment which the noble Lord has moved.

LORD SILKIN

My Lords, I can speak again only by leave of the House, but as I propose to withdraw this Amendment perhaps I may just say this: that if the noble and learned Lord's prognostications as to what would be likely to happen were entirely correct, if one could really get the landlord into the witness box, I should feel perfectly happy. But as the noble and learned Lord knows, as the Bill stands the onus of proof is on the tenant, and he may never be able to carry his case far enough to get the landlord into the witness box. I agree that fortunately this will not apply to many cases. I am happy that that is so. Most people are honest in their behaviour. But this clause is designed for people who suppress material facts. Therefore the noble and learned Lord and I are in agreement that there are dishonest people about, and by this Amendment we should be guarding ourselves against them. However, I do not wish to press this matter; it has been carefully considered by Her Majesty's Government and I do not think it is a matter of first-rate importance. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 57:

Modification on grounds of public interest of rights under Part II

57.—(1) Where the interest of the landlord or any superior landlord in the property comprised in any tenancy belongs to or is held for the purposes of a Government department or is held by a local authority, statutory undertakers or a development corporation, and the Minister or Board in charge of any Government department certifies that it is requisite for the purposes of the first-mentioned department, or as the case may be, of the authority, undertakers or corporation, that the use or occupation of the property or a part thereof should be changed by a specified date, then,— (a) if a notice given under subsection (1) of section twenty-five of this Act specifies as the date of termination a date not earlier than the date specified in the certificate and contains a copy of the certificate subsections (5) and (6) of that section shall not apply to the notice and no application for a new tenancy shall be made by the tenant under section twenty-four of this Act:

4.23 p.m.

THE LORD CHANCELLOR moved, in subsection (1), to leave out all words after "development corporation" down to "then," and to insert instead: the Minister or Board in charge of any Government department may certify that it is requisite for the purposes of the first-mentioned department, or, as the case may be, of the authority, undertakers or corporation, that the use or occupation of the property or a part thereof shall be changed by a specified date. (2) A certificate under the last foregoing subsection shall not he given unless the owner of the interest belonging or held as mentioned in the last foregoing subsection has given to the tenant a notice stating—

1. (a) that the question of the giving of such a certificate is under consideration by the Minister or Board specified in the notice, and
2. (b) that if within twenty-one days of the giving of the notice the tenant makes to that Minister or Beard representations in writing with respect to that question, they will be considered before the question is determined,

and if the tenant makes any such representations within the said twenty-one days the Minister or Board shall consider them before determining whether to give the certificate. (3) Where a certificate has seen given under subsection (1) of this section in relation to any tenancy.

The noble and learned Lord said: My Lords, this is an Amendment which I have to move, once more to give effect to suggestions made by the noble Lord, Lord Silkin, and, I think, the noble Lord, Lord Ogmore. Let me say at once that it is a very elaborate Amendment, and it arises in this way. Where the landlord of lands to which Part II refers is a Government Department, a local authority or a statutory undertaker, it is provided by the Bill that the landlord shall be in a more favourable position in regard to resuming possession, in that a certificate may be given by the Minister that a change of use (those are the words used in the Bill) of the land is requisite—which means, in effect, that the Department may resume possession of the land for its own purposes. Of course, here we start with the assumption—this is the background—that this land has already been acquired by a Government Department or local authority or statutory undertaker, and therefore the first condition has been satisfied: that it is proper to be so taken. Any tenant of such land knows that it is land acquired for that purpose—namely, for Government or local authority use, or for the use of a statutory undertaker. But very often the Department, local authority or statutory undertaker, as the case may be, does not require immediate use of that land and accordingly lets it.

It is the tenant who has taken that land with whom we are dealing in this case. The Bill as drawn provides that there should be liberty to the landlord to resume possession at a specified date, upon getting a certificate. The point was raised by noble Lords that the tenant should have some opportunity of making objection to the granting by the Minister of that certificate. A number of suggestions were made. In the Amendment which I beg to move, we have made provision for that, and we have made provision to meet it in the variety of different circumstances that may arise, which makes the clause extremely complicated. A large number of Amendments are involved. I have had the clause, as amended by all these Amendments, incorporated into one whole. I understand that the noble Lord, Lord Silkin, has had an opportunity of considering it from that aspect, and I hope that he will be satisfied that we have given effect to the suggestion he made.

In a few words I will give the results of the Amendment, and what is the pro- cedure which will be adopted in the cases which fall under Clause 57. In a few simple words, the procedure will be this—and let me remind your Lordships that it may be either that the Government Department or the local authority or statutory undertaker want to give notice to the tenant, and in any case a certificate has to be given: when the giving of a certificate is under consideration, whether because a local authority or a statutory undertaker have applied for a certificate, or because a Department requires possession of premises which they themselves have let, the tenant will be notified and will have twenty-one days in which to make representations. I think twenty-one days is ample time for this; it is taken from the Acquisition of Land (Authorisation Procedure) Act, 1946. Then the Minister is required to consider the representations before deciding whether to give the certificate. If a certificate is given, the Department or local authority send a copy of it to the tenant when they give him notice under the Bill to terminate the tenancy. If the tenant himself takes the initiative, as he may under Clause 26, by making a request under that clause for a new tenancy at a time when no certificate has been given, then the position is as follows. If, within two months of the tenant's request, he is given notice that the giving of a certificate is under consideration, his request is of no avail for the time being but it can be renewed after the Minister has reached his decision. I think that covers in a few words almost all the cases, which are elaborate, and I think with necessary elaboration provided for by the Amendments standing in my name to Clause 57. It would perhaps be convenient if I formally moved Amendment No. 21 and put the others, which are not strictly consequential, later. I beg to move.

Amendment moved— Page 42, line 1, leave out from ("corporation") to ("then") in line 6 and insert the said new words and subsections.—(The Lord Chancellor.)

LORD SILKIN

My Lords, may I again express my pleasure that Her Majesty's Government have seen fit radically to amend the various provisions relating to the issue of a certificate by a Department. Here again, it is a substantial act of justice to a tenant that he should be able to make representations to the Minister where a certificate has been applied for. The position is, of necessity, complicated, but it is satisfactory except, I believe, in one respect. Can the noble and learned Lord say whether it is possible, under these Amendments, or under the Bill as it originally stood, for possession to be obtained against a tenant earlier than the date of termination, where the property is held by a local authority or Government Department? As the clause will read, it seems to indicate that a notice may specify an earlier date as the date of termination.

THE LORD CHANCELLOR

I think it would not prejudice the tenant's right to continue possession; I do not think there can possibly be possession before the date of termination under this clause. It is a question of giving six months' notice.

LORD SILKIN

I do not want to take up the time of your Lordships' House on this matter, but if the noble and learned Lord will look at Clause 57 (3) (b) he will see the point. The noble and learned Lord has another opportunity to look at this. But I should hate to think that, as a result of my intervention, it had been made possible for a Department to get possession earlier than the date of termination of the tenancy. Perhaps the noble and learned Lord will look at that.

THE LORD CHANCELLOR

I will indeed.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move Amendments Nos. 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31.

Amendments moved—

Page 42, line 21, leave out from beginning to ("and") in line 23 and insert— ("(4) Where a tenant makes a request for a new tenancy under section twenty-six of this Act, and the interest of the landlord or any superior landlord in the property comprised in the current tenancy belongs or is held as mentioned in subsection (1) of this section, the following provisions shall have effect: (a) if a certificate has been given under the said subsection (1) in relation to the current tenancy,")

Page 42, line 37, at end insert— ("(b) if no such certificate has been given but notice under subsection (2) of this section has been given before the making of the request or within two months thereafter, the request shall not have effect, without prejudice however to the making of a new request when the Minister or Board has determined whether to give a certificate.")

Page 42, line 38, leave out ("the court makes an order") and insert ("application is made to the court")

Page 42, line 41, leave out ("then if")

Page 42, line 43, leave out ("certifies") and insert ("may certify")

Page 42, line 43, leave out from ("interest'') to ("determine") in line 44 and insert ("that if the landlord makes an application in that behalf the court shall")

Page 42, line 46, leave out from ("land-lord") to end of line 47 and insert— ("Subsection (2) of this section shall apply in relation to a certificate under this subsection, and it notice under the said subsection (2) has been given to the tenant—

1. (a) the court shall not determine the application for the grant of a new tenancy until the Minister or Board has determined whether to give a certificate,
2. (b) if a certificate is given, the court shall on the application of the landlord determine as a term of the new tenancy that it shall be terminable as aforesaid, and section twenty-five of this Act shall apply accordingly.")

Page 43, line 10, leave out ("and the Minister of Works certifies") and insert ("the Minister of Works may certify")

Page 43, line 14, leave out from ("changed") to end of line 16 and insert— ("and subsections (2) to (4) of this section shall apply in relation to certificates under this subsection, and to cases where the interest of the landlord or any superior landlord belongs to the National Trust, as those subsections apply in relation to certificates under subsection (1) of this section and to cases where the interest of the landlord or any superior landlord belongs or it held as mentioned in that subsection.")

Clause 58

Page 44, line 28, after ("tenancy") insert ("or a part thereof").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Second Schedule [Further provisions as to repair where tenant retains possession]:

THE LORD CHANCELLOR

My Lords, I beg to move this Amendment.

Amendment moved— Page 57, line 30, at end insert—

"Failure of tenant to carry out initial repairs

4. Where, by virtue of an agreement or of a determination of the court, the tenant is required to carry out initial repairs to the dwelling-house, failure by the tenant to carry out the repairs within a reasonable time in accordance with the agreement or determination shall be treated as a breach of the obligations of the tenancy for the purposes of paragraph (a) of the First Schedule to the Act of 1933 (which relates to recovery of possession where the rent has not been paid or any other obligation of the tenancy has not been performed)."—(The Lord Chancellor.)

LORD SILKIN

My Lords, this is a rather substantial Amendment which flows, of course, from the concessions which the Government have made on the question of tenants' repairs. The noble and learned Lord explained that, where a tenant had undertaken to do, or had requested to do, his own repairs, and the court had made an order (or even where the court had not made an order but where there was an agreement to that effect), if the tenant was in breach of that agreement then the landlord had a right to claim possession in respect of the breach. Can the noble and learned Lord say whether the tenant would still have the right to claim relief in respect of this breach, as he would have had under the Law of Property Act in respect of a similar breach under his original lease? He ought not to be deprived of his right to get relief. He may have undertaken to do the repairs in good faith, just as a landlord might get possession of his premises on the ground that he wanted to redevelop them, but then finds—perhaps misfortune overtakes him —that he cannot do it. Would he, in such a case have the right to apply for relief?

THE LORD CHANCELLOR

As I read the Bill—and I speak subject to correction—the landlord's right to possession in these circumstances is not automatic. It is subject to the court's being satisfied that grant of a possession order is reasonable under Section 3, subsection (1) of the Rent Act, 1933.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move Amendments Nos. 33, 34 and 35, all of which are consequential upon the first Amendment.

Amendments moved—

Page 58, line 20, leave out ("by the landlord")

Page 58, line 24, leave out sub-paragraph (2).

Fifth Schedule

Page 64, line 37, leave out ("or tenant's initial repairs").—(The Lord Chancellor.)

On Question, Amendments agreed to.