HL Deb 21 May 1985 vol 464 cc232-8

7.30 p.m.

Lord Renton

My Lords, I beg to move that the Bill be now read a second time. This is a short Bill which was introduced into another place last week by my honourable friend Mr. Michael Mates, MP for Hampshire East. Its purpose is to cure a defect in the Rent Act 1977 which is in the same terms as the Rent (Scotland) Act 1984 and of an order in council made under the Northern Ireland Act 1974.

It is a defect which has been brought to light by the decision last November of the Court of Appeal in the case of Pocock v. Steel in which the plaintiff, Mrs. Pocock, was a constituent of Mr. Mates and was the unsuccessful appellant in the appeal and the owner of the house in question. I can put the problem quite shortly and simply. Under Case 11 of Schedule 15 to the Rent Act 1977 and the equivalent provisions in Scotland and Northern Ireland it was thought, when it was enacted by Parliament, that an owner who wished to recover possession of a dwelling (so that he or she or his or her family could return to live in it) could do so so long as certain simple conditions laid down under Case 11 were complied with. The principle condition was the giving of a written notice in advance. If those conditions were complied with it was then mandatory for the court to grant an order for repossession. The courts, therefore, under Case 11 had no discretion as to whether to grant an order. Those of us who were familiar in the courts with these Rent Act cases know that the discretion of the court arose in those cases in which there was a difficult and very tiresome issue of greater hardship—whether it would be greater hardship for the owner if no order was made or greater hardship for the tenant if an order was made.

So many of us were in Parliament at that time, and we must assume that Parliament thought that under Case 11 the court had no discretion and it was mandatory for it to make an order. However, in that case of Pocock v. Steel the Court of Appeal decided otherwise and they held that if the absent owner had made a further letting since first letting the house and having to go away, then Case 11 would not apply. That is what the Court of Appeal held. This unexpected result causes considerable hardship to people who let their homes temporarily while they are away—perhaps overseas on employment in Crown service, in any employment or for business reasons, Service or other reasons which require them to be absent temporarily—or, if not on a temporary basis, for several years, perhaps, but without any intention of surrendering their own home. They may also have left their furniture and other possessions in the dwelling. It may have been a furnished letting. That is the reason for the Bill.

I should explain the terms of the Bill. They look a little technical and, thanks to the Bill being short, they have to be rather technical otherwise we should have had to re-enact provisions that have already been enacted. However, there is no need to do that if the Bill is properly drafted by the textual amendment method, and this Bill is so drafted.

Clause 1 is the operative clause, especially subsections (1), (2) and (3). I should point out that subsection (4) is retrospective. Parliament always leans against retrospective legislation when it operates against the citizen. But frequently in the past Parliament has been willing to make legislation retrospective when it operates, and justly operates, in favour of the citizen who would otherwise be subjected to an injustice. The result is that cases which have already arisen will not, thanks to subsection (4), be adversely affected by the case of Pocock v. Steel.

That is really all I need say at this stage by way of explanation. I have the right to reply to the debate and shall be glad to try to answer any point which any noble Lord may raise. I beg to move.

Moved, That the Bill be now read a second time. —(Lord Renton.)

Lord Denning

My Lords, this little Bill is an important constitutional Bill. Let me tell your Lordships how it arises. There was a lady, Mrs. Pocock, who lived near Petersfield in Hampshire. She wanted to leave her house for a time and to let it furnished, but she wanted to be sure of being able to get it back when she wanted it for herself or for any of her children. The law permits that. The Rent Acts permit it so long as certain requisites are gone through. She gave all the notices and all the necessary requisites. A year or two ago there was a tenant living in the house and Mrs. Pocock wanted it for her son and daughter who were then growing up. She brought proceedings in the county court for possession, relying on all the provisions of this statute being in her favour, but I am afraid the judge refused to give her possession and the Court of Appeal approved and affirmed that position. Mrs. Pocock therefore left the court without getting her cottage and having to pay the costs of the tenant who was occupying it. The tenant is one of the citizens affected by this.

It was in November last year that the Court of Appeal gave that decision in Pocock v. Steel. In a way I do not blame them. I remember those Rent Acts from the old days, the obscurity of them and the amount of trouble we had. The judges then were inclined to blame the trouble on the draftsmen and on your Lordships' House. Lord Justice Scrutton said in 1929—I was in the court and heard him: I regret that I cannot order costs to be paid by the draftsmen of the Rent Acts and the Members of the legislature who passed them and are responsible for the obscurity of these Acts". That is what Lord Justice Scrutton said at that time. I know the Court of Appeal made a mistake when Lord Justice McKinnon said: Anybody may be forgiven for making a mistake about this chaotic series of Acts, the horrors of which are prematurely hastening many of the judges to an early grave". That is what we thought of the Acts in 1928 and 1930 when I was dealing with them all.

I am afraid that history is repeating itself in this case. I fear I must say that I think the Court of Appeal in this case got it wrong, because all depended on little words in the original Act of 1965, that the landlord could get possession if he has occupied the house and let it. Simple words applied also to Mrs. Pocock. She has occupied it and had let it. Then, not in a new Act but in a consolidating Act to make it, as the draftsmen thought, a little easier, they missed out the word "has". Instead of saying "who has occupied", they said, "who occupied". Instead of saying, "who has let", they said, "who let". In a consolidation Act I should have thought that none of us would think that there was any difference at all. I am afraid that the Court of Appeal said that there was a difference and the words in the consolidation Act were said to be clear and to overrule the meaning which had been given in the original Act of 1965.

I fear that in my view the Court of Appeal were wrong. They ought to have gone by the purpose of the legislation and not by the mere literal words of it, on the meaning, on the word "has" being brought in or not. As in an earlier debate this afternoon, how glad I was to hear the Lord Chancellor say that the court should now give a purposive interpretation of the Act and not go by the literal words, following my noble friend Lord Renton's excellent report. That is where the Court of Appeal went wrong.

But is it for me, is it for us, to say that the Court of Appeal were wrong? There is the constitutional point. That case was not appealed to the House of Lords. What this Bill says changes the law. It reverses the case of Pocock v. Steel and says that Mrs. Pocock, if only the Court of Appeal had been right, could have got possession. And there it is. It is not only doing that, it is making it retrospective. That is subsection (4). That is the constitutional change. It is making it retrospective so that the law is changed. If a person such as Mrs. Pocock brought an action in the courts now, after this Bill, she would get possession, even though the matter had taken place weeks and months before it was psssed.

It is making it retrospective. That is the important point in this Bill. My noble friend said, "Oh well, we do allow retrospective legislation when it affects the private citizen". Does it not affect the tenant here, the tenant who is being turned out? So it is really, to my mind, a new and important point of retrospective legislation which, for myself, I am glad to see. But I should also like to see this. Could not Mrs. Pocock now in some way get that tenant out? The case was decided against her. I think that the only way that I can see that it could be done is by her applying for leave to appeal to the House of Lords, out of time, or getting leave to go, and getting the position reversed. Then she would not have to pay those costs.

At all events, my Lords, there it is. I am saying all this just to show that we are on an important constitutional point. I wholly welcome the Bill. It is putting the law right. It is changing the law where the Court of Appeal went wrong; and a very good thing that their Lordships should do it. But it is a new thing. It is a new thing, but I am very glad that it is being done.

Lord Graham of Edmonton

My Lords, from these Benches I should like to give an unqualified welcome to and an appreciation and acceptance of the decision of the Government, who clearly were seized of the arguments that had been advanced in regard to this matter. I believe that they also appreciated the sense of injustice that pervaded the whole situation. I look the noble Lord, Lord Renton, in the eye (in my phrase) and he will appreciate, as I do, how very lucky we are in this House at this moment to have more time than was available in the other place last Friday. I spent a great deal of my time in the other place as a "Friday man" and I know how very rarely this kind of procedure was tolerated by a Government of any colour and by the Whips of either side. There was a natural reticence to allow things to go through literally "on the nod" at all stages. I have read the very short comment and the quite proper remarks of the Speaker drawing the attention of the House to the desire on the part of all parties to make the maximum speed. That is why it literally went through at break-neck speed last Friday.

I think the House is indebted to the noble and learned Lord, Lord Denning, because there will be people outside this place who will be delighted by the decision but who nevertheless will also want to hear the exposition and the arguments backwards and forwards which the noble and learned Lord, Lord Denning, gave and, finally, without any qualification the indication that this was a proper thing. The noble and learned Lord, Lord Denning, used the word "purpose"—the interpretation of the purpose. I had already jotted down the phrase "true intention". There may be a difference semantically, but I gathered that what the Minister and his advisers had sought to get the House to agree to and what the noble and learned Lord, Lord Denning, and the noble Lord, Lord Renton, and a great many other people had been seized of was the original purpose or true intention.

I am only sorry that the noble Baroness, Lady Gardner of Parkes, is not here because it is only three weeks ago since she raised this very matter here in this House as a Question, and I had the opportunity of drawing the attention of your Lordships to the matter. I can simply say that a good friend of mine, Mrs. Gladys Bunn, who is the principal of an estate agents in Haywards Heath, drew my attention to this question and to the agitation in the area of Haywards Heath because I did not know the quantity—whether they were in tens, hundreds or thousands—of the properties in this category. When she sent me a note of the position she enclosed correspondence from the National Association of Estate Agents. There is no doubt at all from what she told me that this decision, the impact and import of the Bill, will be seen as providing enormous relief and clarifying what had been the past position. The retrospective aspect of it—16th November—is very important indeed. The noble and learned Lord, Lord Denning, and the noble Lord who introduced the Bill quite fairly drew attention not to the uniqueness but to the rarity of Parliament actually taking retrospective action of this kind.

I think that the Member for Hampshire, East is to be commended on his diligence. I believe that he has recognised that if he had not a cause célèbre, he had a very good wicket on which to bat. He has pursued it with vigour and, at the end of the day, the noble and learned Lord, Lord Denning, has dissected and analysed the Bill in parts. I have read it, of course, and it substantially means that the uncertainty and perhaps its effect on the availability of accommodation will not be there in the future in the way it would have been had the ability of the returning landlord to gain possession remained in as much doubt as it was after the decision referred to.

All told, my Lords, I believe that Parliament has acted very wisely. I congratulate the Minister who wrote to me and said clearly that he wanted to put the matter right. He has put it right at the earliest possible moment and I believe that the honourable Member for Hampshire, East deserves our congratulations on co-ordinating matters and demonstrating that his concern for his constituent and many others deserved to be redressed. From this side of the House I certainly give this Bill an unqualified acceptance.

7.49 p.m.

Lord Skelmersdale

My Lords, the Government warmly welcome this Bill which has been so fully, and, may I say, briefly, described by my noble friend Lord Renton. This matter first came to the attention of the House by means of a Starred Question from my noble friend Lady Gardner of Parkes which I was privileged to answer. I promised then on behalf of the Government urgent action to correct a situation which I said at the time (at col. 474 of the Official Report of 3rd May) has arisen because the Court of Appeal has overturned the widely accepted view of the effect of Case 11 of Schedule 15 to the Rent Act 1977.

Speaking on behalf of the official Opposition, the noble Lord, Lord Graham, agreed with me at that stage, and obviously he still does from the speech which he has just delivered to the House. I do not know whether the Court of Appeal got it wrong, as the noble and learned Lord, Lord Denning, said, but I feel in any event that it would be presumptuous of me in the extreme to comment on that particular aspect of the matter. However, my noble friend Lord Renton's object is to put this matter beyond any doubt, whether in the legal or common sense or anything else, if, saving the face of the noble and learned Lord, I might distinguish between the two adjectives. The noble and learned Lord, from his speech, is obviously convinced that this Bill does precisely that, and of course so am I.

My Lords, today's proceedings, in regard to which Standing Orders have been suspended, are a reflection of the urgency of this matter and I am very pleased that the House agreed to this course earlier today. I therefore thank the House in advance for its co-operation in correcting an anomalous situation, both prospectively and in respect of existing lettings.

I am advised that the element of the Bill which applies retrospectively to existing tenancies is not truly retrospective in the accepted sense of that word, in that the tenants who were given increased rights by Pocock v. Steel and will now have them withdrawn—and this is the important part of what I have to say—never thought that they would have those rights when they accepted the tenancy. I hope that is clear to somebody. My Lords, I fully expect that, if your Lordships pass the Bill today, Royal Assent will not be long delayed.

Lord Renton

My Lords, I would like to thank those noble Lords who have spoken and who have supported this Bill. So far as the noble and learned Lord, Lord Denning, is concerned, I would remind your Lordships that his decisions so often corrected the statute law by filling gaps in it in ways which enabled justice to be done and to be seen to be done. We remember in particular his establishing the innocent wife's right to remain in the matrimonial home. That was an example which Parliament eventually followed—rather the reverse of the present situation. I am glad that he referred to purposive interpretation and that my noble and learned friend the Lord Chancellor did so earlier today. It is not for me to say whether such an interpretation would necessarily have resulted in a different decision in this case, but certainly "purposive intention", or, as the noble Lord, Lord Graham of Edmonton, so aptly put it, deciding cases in accordance with the true intention of Parliament is what purposive intention is, and I am grateful for the translation of it which the noble Lord has given me.

My noble and learned friend Lord Denning suggested that Mrs. Pocock might not get the benefit of this Bill, but I suggest, with deep respect and polite hesitation, that she will get the benefit of the retrospective provision in Clause 1(4), because it applies to all cases prior to the Bill, and Mrs. Pocock is not made an exception in the enactment of that clause. So if she finds that she has to take further proceedings in court—but I would very much hope that the parties would be reasonable and that she would not have to do so—then she could pray in aid the provisions in subsection (4). That is how I see the matter.

Lord Denning

My Lords, with the leave of your Lordships, perhaps I may say that there is a judgment of the Court of Appeal against Mrs. Pocock and in favour of the tenant. I do not know, unless it is specifically done by this House or by the Bill, that that judgment can be reversed just like that. Therefore, although I have some hesitation, Mrs. Pocock would have to do it by fresh proceedings, or something, or, as I should like it to happen, by agreement, whereby she could get possession now, reverse the order for costs and get costs. But I am not sure that that ought not to be done specifically by this House legislatively, or by an intermediate appeal to the House of Lords. I expect it will all go through by agreement, because if the House of Lords did hear the appeal they would of course apply the present Act and reverse the decision. I only hope that in some way or other Mrs. Pocock will get the decision of the Court of Appeal reversed and get the order for costs in her favour, and not have to pay costs; but the Act does not do it expressly.

Lord Renton

My Lords, my noble friend is quite right in drawing attention to the fact that express words in the statute are needed to overrule the common law or the decision of the courts, but in my respectful submission the terms of subsection (4) of Clause 1 are express. They are abundantly plain for all to see; and where there is that conflict between a recent decision of the court and a recent statute, I would have thought it is beyond doubt that the statute must prevail. However, we must leave that for events to follow.

I am so glad that the question raised by my noble friend Lady Gardner of Parkes was referred to by the noble Lord, Lord Graham, and my noble friend Lord Skelmersdale, and I am sure she will be pleased at the prompt action which has been taken.

May I say in conclusion that the passage of this short, necessary Bill through both Houses of Parliament in eight days shows that Parliament, with the aid of Whitehall, can be both efficient and expeditious when necessary. It is unusual for a Private Member's Bill to get through both Houses so very quickly. May I say how grateful I am and how satisfying it is to know that the law can be so quickly and well corrected in a matter which is essentially a human problem.

On Question, Bill read a second time; Committee negatived.

Then, Standing Order No. 44 having been dispensed with (pursuant to Resolution), Bill read a third time, and passed.