COMMONS AMENDMENT (Hansard, 22 November 1954)

§ VISCOUNT WOOLTON
My Lords, This Amendment replaces paragraph (b) of Clause 6 (3), repealed by the previous Amendment to Clause 6 which deals with the adjustment between owners and occupiers of expenses incurred in making structural alterations in accordance with the requirements of regulations under the new subsection set out above. The gist of 1695 the Amendment is that either the owner or the occupier may apply to the county court to have the issue determined. It is thought that the procedure for resolving differences of this kind should be set out in the Act rather than that it should be laid down in regulations made by the Ministers. I beg to move that the House doth agree with the Commons in the said Amendment.

§ EARL JOWITT
My Lords, I am sorry to rise again. I have no desire to be cantankerous about these things, as the noble Viscount knows, but I do not think it right to let this matter pass without saying how much I disapprove of it. Her Majesty's judges have, I think, the universal admiration of the lieges, and it is largely because they administer settled principles of law. They are not cadis sitting under palm trees, who administer what they think the law ought to be; they are administering the law as it is set down. The noble and learned Viscount the Lord Chancellor will know that in the early days of equity the Lord Chancellor used to have a power of declaring out of his own inner conscience what ought to be done. It was said at a very early stage that equity is a roguish thing, as variable as the Chancellor's foot—meaning to say that one Chancellor's idea of what was right would differ from that of another Chancellor. Consequently, equity became, as did law, subject to certain definite principles, and became crystallised and clear. I am perfectly certain that it is of the utmost importance that Her Majesty's judges should administer a settled system. They should not simply be set at large amongst the lieges and told to do what is right and proper in the circumstances.
To my mind, that is the vice of this clause. What it means is this. There may be a lease as between a landlord and a tenant, and there may be perfectly proper requirements made by the local authority which involve the making of certain structural alterations, and, therefore, the incurring of expense. But who is to bear that expense? Normally, you would look to the lease and would consider whether it falls upon the tenant or the landlord. If you 1696 were in difficulty about a lease, you would no doubt consult lawyers, and they would have a settled principle. But that is not to be the principle here at all. As I understand this clause, one has to go before the county court judge, who has to look at the lease and see what that lease provides. That is only one of the things he has to look at, and it is not the governing consideration. He has to decide on the cui bono principle what has to be done. That is how I read this clause.
I appeal to the Lord Chancellor. It seems to me that this clause is subject to the vice which I have indicated; and it transforms the county court judge, who is trying to administer law according to a settled principle, and makes him a cadi under the palm tree. It says to him: "You do that which is just and equitable. You can look at the lease amongst other things, but consider what ought to be done." It gives him no further guidance. I do not think that is right, and I believe that if that principle were extended, our judges would not have the high repute they have to-day. I should like to ask the noble and learned Viscount, who understands fully the point I am making and I suspect in his heart of hearts agrees with it, whether we can do anything at this stage to put it right. I seriously believe it is a bad blot on the Bill and is the introduction of what I believe to be a bad principle.

§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, as the noble and learned Earl has asked me to give my views on the matter, I should like to say that, on the broad principle which he has enunciated, I am sure that no Member of your Lordships' House is in disagreement with him. But here we have to face the difficulty that arises as to the apportionment of the costs between the owner and the occupier. I think the only way in which it can be done is as my noble friend Lord Woolton has said, by making regulations—it may be rather intricate regulations—in order to give guidance on the matter. It was felt that the county court judge could, in the circumstances, as the noble and learned Earl says, look at the lease and also at the reason for making the alterations. That would be a method of solving the difficulty which would probably give more satisfaction to both the owner and the occupier than any other. I think I 1697 can say—and I am sure that my noble friend, Lord Woolton, will entirely agree—that we are grateful to the noble and learned Earl for drawing our attention to the matter. As he knows, when one is legislating it is very attractive to try to find an easy and acceptable method of arriving at justice, but if we forget the principles about which the noble and learned Earl has reminded us, our legislation will suffer. I hope, if I may use the phrase, "taking into account all the circumstances of the case," and having regard to the time of the Session, the noble and learned Earl will not press it this time on the assurance I have given.

§ EARL JOWITT
My Lords, I will certainly agree to that, and withdraw my opposition. I have made my point on a matter which I think we should attempt to avoid in future.

LORD SALTOUN
My Lords, may I ask whether this means that any man who lets premises for use as a shop for his own protection will, in the future, have to put a clause in the lease to say that it may not be used as a milk bar or anything of that kind without a licence from the lessor? Must he do that in order to protect himself from being mulcted for the structural expenditure without his knowing anything about what is going on?

§ EARL JOWITT
My Lords, it is not for me to answer, but that was the very point which occurred to me. It seems to me that a landlord in future must make some arrangement of that sort in his lease; otherwise he may find himself under an obligation to incur structural expenditure at the behest of the county court judge.

§ THE LORD CHANCELLOR
My Lords, may I say, to help my noble friend Lord Saltoun, that as I understand it the particular, proviso which we are putting into the Bill deals only with structural alterations in accordance with the requirements of the regulations. The noble and learned Earl has put the difficulty on the matter which is present to our minds. If I may give what I am afraid must be a "snap" opinion, I do not think Lord Saltoun's apprehensions are so well founded.