Before I was interrupted while explaining this Amendment two or three weeks ago, I had drawn the Committee's attention to the discrepancy between the 1927 Landlord and Tenant Act and the Bill before the Committee, in that the former Act applied to lands held by the Crown in right of the Duchy of Lancaster and in right of the Duchy of Cornwall, whereas those lands were not covered by the present Bill. I was proceeding to examine the reasons alleged on Second Reading by the right hon. and learned Attorney-General for this omission which the Amendment standing in the names of my hon. Friend the Member for Wimbledon (Mr. Black) and myself seeks to remedy.

On Second Reading, the right hon. and learned Attorney-General said that special constitutional circumstances applied to the two Duchies, and he gave that as the first reason for the omission of those lands. But, if there are constitutional considerations which would prevent this Bill from applying to those Duchy lands surely they would equally have applied to the 1927 Landlord and Tenant Act. Therefore, I feel that the first reason given by the right hon. and learned Gentleman, unless there has been some constitutional change in the intervening 24 years, can be set aside. The right hon. and learned Gentleman went on to draw a distinction, and said:

"The obvious constitutional distinction between the Duchies and the private estates, on the one hand, and the Lands Commissioners and the Government Departments on the other, what was appropriate in one case was not appropriate in the other."—[OFFICIAL REPORT, 6th December, 1950; Vol. 482, c. 391.]

Subject to the advice which the Committee may receive from the right hon. and learned Solicitor-General, I submit that that distinction is a false one. So far as I understand the position, the lands of the Duchies and the lands held in right of the Crown are substantially in the same position. The revenues of the Duchy of Lancaster and of the Crown lands are both paid into the Consolidated Fund and the Commissioners of Crown Lands are responsible for the administration of the lands held in right of the Crown.

It seems to me, therefore, that the distinction which the Attorney-General sought to draw between the Duchies and private estates, on the one hand, and lands administered by the Commissioners of Crown Lands, on the other, is an entirely false one, and that lands held by the Crown in right of the Crown and held by it in right of the Duchy of Lancaster are constitutionally on exactly the same footing.

Unless, therefore, the Government can give much better reasons than those given on Second Reading for the drawing of this distinction, I suggest that we should follow the precedent of the 1927 Landlord and Tenant Act and render this Bill applicable, not only to lands held in right of the Crown, but to those held in right of the two Duchies.

I hope the hon. Gentleman will not insist upon his Amendment. As my right hon. and learned Friend the Attorney-General said, there are differences in the eye of the Constitution applicable to these lands. They are intangible in a sense, but the consideration which weighs with us is that the Sovereign is more personally concerned with the administration of the Duchy estates. But, however that may be—and that was a reason which actuated us in making this distinction, although I agree it has not been made in other Bills, though the fact that something appears in other Bills is not necessarily always the inexorable guide for a particular Bill—we thought it appropriate in this Bill to make this distinction.

But the main answer which I would make to the Amendment is that the distinction will really lead to little practical difference, because it is, in fact, the practice of those administering the Duchy Estates to act in a way similar to that in which they would have to act if the Statute bound them. The practice is the same as that laid down by the Statute, and it is the practice they voluntarily follow. In those circumstances, and in view of the different character of the interest of the Sovereign in relation to this particular Duchy land, we thought, although there are arguments which can be used on both sides, that we would in this particular case exclude them from the purview of the Bill, knowing that the result, so far as anybody was concerned, would be, to all intents and purposes, the same as if they were by name included in the Clause. Therefore, I hope that the hon. Gentleman will not insist upon the Amendment.

I have as great a tenderness as any other hon. Member of this Committee for the distinctive privileges of the Crown, and although the right hon. and learned Solicitor-General has admitted that by placing the Duchy lands in a special position in this Bill we are creating a distinction from what has been the practice in previous legislation, I propose, in view of his undertaking as to the practice of those administering these lands, to beg to ask leave to withdraw the Amendment.

When I was speaking on the Second Reading of the Bill, I raised a question about sub-tenants of Crown property, of whom I have a fair number in my constituency of North Lewisham. Their chief grievance cannot be dealt with under this Bill, for it is that being sub-tenants of Crown property, they cannot come under the Rent Restriction Acts. I appreciate that we cannot discuss that now but what is happening in the case of sub-tenants of long leases is that the lease is bought up by somebody else who perhaps does not act for the sub-tenant as the Crown wilt act; and while the Solicitor-General said just now, quite rightly, that he was sure that the Duchy of Lancaster and the Duchy of Cornwall would act in every respect as perfect landlords, the trouble arises when we get this intervening tenant. I should like to know how far these tenants are affected by this Measure.

The Attorney-General, when replying to the Second Reading on a much broader basis, was not able to deal with this point, but he kindly told me that if I was able to raise it on the Question that Clause 14 stand part of the Bill he would endeavour to give an answer. Therefore, I would be obliged if the Solicitor-General could say in what way these tenants are affected, if at all, because that is my difficulty. Whenever I have raised this question I have always been told that these tenants are not affected at all by this Clause. But because they are Crown tenants they might be affected, although if they had not been Crown tenants perhaps they could not come under this Measure. If the Solicitor-General would say a word or two on this subject I would be obliged. If, not being a lawyer, I am displaying gross ignorance I apologise to the Committee.

The hon. Gentleman is quite right in what he says, and the question arises as to the position of mesne landlords of Crown property. When I say "mesne" I do not mean "mean"; I am referring to the landlord who stands between the Crown and the sub-tenant. I appreciate that that matter arises, but I cannot give any undertaking with regard to altering the relationship between the mesne tenant of Crown property and the sub-tenant within the scope of this Bill. I fear that is a matter which must depend upon reconsideration of the Rent Restriction Acts as a whole; it would not come within the purview of this Bill which has a much more limited purpose. That is the 'only answer I can give at the moment. This Bill does not affect that particular question.

I take it that it would affect a long lease—a 21 years' lease.

In view of what the Solicitor-General has just said, I would like to know whether there is any difference between the case where the ground landlords or head landlords are the Crown Commissioners, and where the private person is the head lessor or ground lessor. Is not the position precisely the same, and do not the provisions of the Bill embrace the case—I thought they did under Clause 5—of the sub-tenant in each case? I thought we had made provision for that. If the right hon. and learned Gentleman says that that position is different from where the Commissioners are the head landlords, I should like him to elaborate it and make it clear, because it is an important point.

The position can be stated, very shortly, in this way. The result of the decision of Clarke v. Downes is this: that case says that the Rent Restriction Acts do not bind the Crown, and therefore technically the Crown is not bound as against the subtenant under the terms of the Rent Restriction Acts. That difference between the case of Crown property and other property springs from the basic principle which was asserted and laid down by the case to which I referred, Clarke v. Downes. I can only say that, there being that difference which possibly leads to practical differences of result in the case of mesne tenants, we cannot undertake in the scope of this Bill to deal with that situation.

I do not think that the right hon. and learned Gentleman is quite following the point put by my hon. Friend the Member for Lewisham, North (Sir A. Hudson). In the case of a sub-tenant of one of those houses which, by virtue of that decision, so far as the Crown is concerned, are not within the scope of the Rent Restriction Acts, surely the effect of this Bill will be to bring those sub-tenants within the ambit of Clause 5 of this Bill, in the same way as other sub-tenants are brought in there. Is that not so?

If that is so, surely I am right in saying that apart from the possibility of the Crown relying upon that decision to which the right hon. and learned Gentleman has just referred, the position of the sub-tenants to whom my hon. Friend has referred is exactly the same as the position of all other sub-tenants who come within the scope of Clause 5. So long as that is clear, I think my hon. Friend will be satisfied. I was a little alarmed when the right hon. and learned Gentleman said, as it appeared to me, that there was a real and substantial difference and that Clause 5 did not apply to that category of sub-tenants. It may be my fault in misunderstanding it, but so long as it is clear we are satisfied.

We will look into this question further before the Report stage; but, as I have said, I cannot give any general undertaking to make any change. Clause 5 changes the Knightsbridge Estates case, and brings within its scope tenants who, because of that decision, would otherwise have been outside the provisions of the Rent Restriction Acts. Apart from the effect of the Clarke v. Downes case which excludes the Crown from the purview of the Rent Restriction Acts, the hon. and learned Gentleman is right in saying that the effect of Clause 5 is to bring within the scope of the Acts a tenant of that kind.

I am grateful to the right hon. and learned Gentleman for what he has said. I would only ask him this. As he has said that he will look into it, would he be so good as to inform my hon. Friend and myself of the results of his further consideration before the Report stage? If he does not table an Amendment to do something on this matter, and if there is a case which requires to be met. I am sure that my hon. Friend will seek to table an Amendment.

I beg to move, in page 12, line 5, at the beginning, to insert:

(1) Where by virtue of any provision of this Act a tenancy (in this subsection referred to as "the inferior tenancy") is continued or granted for a period such as to extend to or beyond the end of the term of a superior tenancy, the superior tenancy shall, for the purposes of this Act and of any other enactment and of any rule of law, be deemed so long as it subsists to be an interest in reversion expectant upon the termination of the inferior tenancy and, if there is no intermediate tenancy, to be the interest in reversion immediately expectant upon the termination thereof.

(2) Where by virtue of section two of this Act a tenancy is deemed to have continued during the period from the date of continuation until the commencement of this Act, the last foregoing subsection shall be deemed to have applied in relation to that tenancy and any superior tenancy.

The object of this apparently rather elaborate Amendment is quite simple, and I think I can illustrate it best by giving an example. Suppose we have a case in which—if I may borrow the letters of the alphabet—A lets to B under the terms of a lease which expires, say, in September of this year. B lets to a shopkeeper C under the terms of a lease which expires before then, say, in June of this year. As B's term does not terminate until after C's term, because B's term goes on until September, the result is that he would not be the holder of a reversion within the meaning of the expression "reversion" as has been defined, and therefore he would not be able to levy distress for rent, and so on.

Perhaps I have not made that quite clear. A lets to B under the terms of a lease which expires in September, 1951. B lets to a shopkeeper C and, therefore, brings Part II of the Bill into operation, under the terms of a lease which expires in June of this year. The effect of Part II is that the shopkeeper C gets an extension for a year, and, therefore, his term is one which expires after B's term, as B's term expires in September this year whereas C's term, because of the extension he gets under Part II, expires in June, 1952.

The result is that without this Amendment B would not be a reversioner as his term would have expired before C's extended term had come to an end in June, 1951. Therefore B, while C is a tenant, would not enjoy rights which a reversioner has. He would not, for example, have the right to levy distress in the case of non-payment of rent. To prevent that result from ensuing, as it would under the Bill as drafted, we have provided, in this Amendment, that in a case such as I have described, where there is a prolongation of the lease which extends it to a period which is after the expiry of the tenancy, the tenant shall nevertheless, be considered as a person who is a reversioner and who, therefore, has the rights of a, reversioner.

This is a drafting Amendment in the sense that it removes what is a defect in the wording of Clause 15 as it at present stands. It is to give the landlord in those circumstances the rights he would have as a reversioner that I have moved the Amendment

I am grateful to the Solicitor-General for his careful explanation of this rather complicated Amendment. There is just one fear I have on this point. If we are to give B, the original tenant, a kind of notional reversion—I think that is the effect—for an extended period, what is to be the position of the freeholder at that time if the original tenant B is entitled to take the necessary proceedings, for example for enforcement of covenants, and to levy distress for non-payment of rent? Does it mean that so far as the freeholder is concerned B will have to continuing paying his own head rent and matters of that kind? Does this reversion extension, which is purely a notional one, imply any obligations on the tenant?

The fact is that so long as B's tenancy continues, in the assumed case until September, 1951, B is the reversioner and his relations with' freeholder are exactly the same and are not affected. When September. 1951 comes, B's tenancy expires and the effect of Clause 15 as it stands is to bring the sub-tenant into direct relation with the freeholder, who then becomes the reversioner, and because the provisions of Section 139 of the Law of Property Act, 1925, will apply, by reason of Clause 15, to the case where the lease comes to an end otherwise than by surrender or merger, the freeholder becomes the reversioner and is then entitled to exercise his rights.

I was worried about the precise meaning of this Amendment, and I wish to thank the Solicitor-General very sincerely for his extremely clear explanation. To anyone who has been in the House for some time it is a real pleasure to see a Law Officer taking considerable trouble in a case like this to make clear to Members of Parliament how to explain these matters. The right hon. and learned Gentleman is a model for the Attorney-General, and I hope that a copy of the Solicitor-General's speech will be given to the Attorney-General so that he may learn how to treat the Committee on such occasions. I am very much indebted to the Solicitor-General.

I beg to move, in page 12. line 41, to leave out "either."

This Amendment requires to be considered in conjunction with the following Amendment in the names of myself and my hon. Friend the Member for Bromsgrove (Mr. Higgs), in page 12, line 42, to leave out "or off." The object of the Amendment is to ensure that the Bill shall apply to premises which are occupied by the holder of an off-licence. I am aware that where the trade under the off-licence is only a minor portion of the total trade carried on by the tenant, he is outside the mischief of this definition, and is covered by the Bill. That, as I understand it, follows from the combination of the definition of "shop" as:

"premises occupied wholly … or mainly for the purposes of a retail trade. …"

and the definition of "retail trade," which I am seeking, by this Amendment, to vary.

The Amendment addresses itself to the case where the tenant carries on the greater part or the whole of his trade under an off-licence. At present premises to which an off-licence attaches are covered by the Rent Restriction Acts, and a good many such premises are occupied as statutory tenancies. Further, the provisions of the Landlord and Tenant Act, 1927, apply to premises to which an off-licence attaches; and although there have not been many cases in which that Act has been invoked, I understand that there has been a certain number, and that those provisions have been of benefit directly or morally to tenants who are holders of off-licences.

In those circumstances I wish to ask the Government to consider whether the same should not now apply, and whether the tenants carrying on business under an off-licence should not be protected under the terms of the Bill. Clearly if the justices decide to terminate an off-licence, the tenant will not normally desire to remain in occupation: but so long as he retains a justices' off-licence, I see no reason why he should be deprived of the advantages of this Bill any more than a person carrying on any other kind of trade.

One realises the special position of the holder of premises where there is an onlicence—premises which are constructed and which exist purely for the purposes of the liquor trade on the premises. I suggest, and my contention is borne out both by the Rent Restriction Acts, which include off-licences and exclude on-licences and by the 1927 Act, which does the same, that we should in this Bill give protection to the tenant who carries on most or all of his trade in pursuance of an off-licence.

I am obliged to the hon. Member for calling attention to this point. It had not been overlooked, but the reason why holders of on- and off-licences have been excluded from the description of shops is because it is felt that as the licensing justices have to decide the question of licences the jurisdiction of the justices would indirectly be encroached upon if holders of such licences were brought within the purview of this Bill, and thereby made eligible for extensions of their tenancies. But for the reasons which the hon. Gentleman has given, we feel on reflection that there is a distinction between the holder of an on-licence and the holder of an off-licence. For those reasons, which have commended themselves to us since he put down his Amendment, we have pleasure in saying that we are prepared to accept the Amendment.

I should like to make a further last-minute appeal before this matter proceeds to its final stage that the term "shop" should be reconsidered. As it stands at present, the term leaves rather an anomalous position with regard to certain professions. Let me give an illustration by mentioning members of one profession. It is not recognised on the same plane as other professions perhaps, but it might very well be so recognised. I refer to ophthalmic opticians.

One might have an ophthalmic optician who has shop premises. If he exhibits in the window of his shop certain of his wares and if, as it were, he carries on a business in that shop, he is protected. But if he desires to place an ethical standard of a higher nature on his work and carries on in shop premises precisely the same business, without exhibiting his wares at all, he is not protected. That, if I may say so, obviously creates a position which is absurd with regard to that particular trade or profession, whichever one might care to call it.

The question affects many other professions. One can visualise a solicitor who has a shop premises and is living on the premises, as is sometimes the case in the smaller towns and even possibly in London. Another solicitor may have an office in a shop premises although, in fact, he is not, of course, carrying on what might be called a recognised retail business in those premises. The same thing applies to a surgery for a doctor or a dental surgeon. I think that it would be quite within the scope of this Bill that the definition "shop" should be extended to include those cases. I believe that the people who carry on these professions have as much right to protection as the ordinary shopkeeper, although, of course, I quite agree that the ordinary shopkeeper is fully entitled to the protection given to him here.

What, perhaps, is even more important is that in the dental or medical profession if a man is turned out of a surgery in a particular district it may very well be that there are no other available premises at all. That would work very considerable hardship upon the people who have to seek the services of that professional man. I hope that my right hon. and learned Friend will find it possible to extend the definition of this term to include those professions to which I have referred and that he will let us know, on the Report stage, that that is practicable under the Bill.

The right hon. and learned Gentleman might care to say a little on the question of restaurants. In the definition of "retail trade or business" at the bottom of page 12 of the Bill it is apparently intended to exclude from the benefit of the Bill businesses which are for the sale of meals or refreshments and which are licensed for the sale of intoxicating liquor for consumption on the premises.

Why have the Government decided that while a restaurant where no intoxicants are sold is to have the benefit of this Bill, a restaurant where the proprietor has been sufficiently considerate of the tastes of his customers to obtain and pay for a licence should not have the benefit of the Bill, on that ground and on that ground alone? I offer this thought to guide the right hon. and learned Gentleman—that that is rather to put a premium on the somewhat doubtful procedure followed by some people of starting a sort of club so that patrons of the restaurant may, by the fiction of being members of a club on the premises, obtain intoxicants with their meals.

That is done quite commonly and I wonder whether or not a place registered as a club but not licensed by the licensing justices would be included as premises licensed for the sale of intoxicating liquor. It seems to me that we are penalising the one person who is going the right way about the business of supplying liquor to his customers, namely by paying the proper dues to the Revenue and persuading the justices that he should have a licence. This apparent exclusion causes a little wonderment in some quarters and perhaps the right hon. and learned Gentleman would look into it.

I should like to ask another question on the definition of "shop." I am concerned with two more anomalies. The hon. Member for Leicester, North-West (Mr. Janner), has mentioned some anomalies, and although I do not agree entirely with all he has said I agree that there are anomalies. I am interested in the position of organisations like building societies and insurance companies who have offices which contain shop premises attached to them where people make payments and transact various kinds of business. Would they come within the definition of "shop" as in the Shops Act, 1950? The right hon. and learned Gentleman must have seen these types of premises as he goes about his daily work. It often happens that they do a great deal of their over-the-counter trade in what is, to all intents and purposes, a shop. I do not expect a definite answer now but perhaps the right hon. and learned Gentleman will meet that point.

My hon. Friend the Member for Leicester, North-West (Mr. Janner) introduced his observations by saying that he was again making a last-minute appeal. It would hardly be a service to the deliberations of the Committee if I embarked again upon a long-scale disquisition upon the general question as to whether we should go beyond the ordinary understanding of "shop" or maintain the attitude we have adopted, that is to say, keeping to the limited scope which is within Part II and keeping within the ambit of what can properly be described as a shop.

I do not want to repeat the general reasons but, as the Committee knows, we said earlier, both during Second Reading and also when we were discussing Part II, that we thought it right for the purposes of this temporary Measure to keep ourselves within the area of shops proper, in order not to embark upon the very large-scale change which would probably result if we included business premises, industrial premises and all the rest. We thought that the repercussions which might result from such a change could be very far-reaching and might have a disturbing effect.

It was for that general reason, which I repeat only in general terms, that we thought we should bring simply shops within the scope of Part II, and I do not think I can add to what we have said previously about our reasons for adopting that view. Perhaps it was right; perhaps it was wrong. I have been asked in a debate on Clause 17 to re-open the basic principle upon which the Bill is framed. I am sorry to say that I cannot undertake to do that, having proceeded hitherto on the general basis which we have adopted and which we still think is right, for reasons which we have already given on many occasions.

I turn next to the question of restaurants with an on-licence. It is very difficult to draw the line here, and we feel that where there is a restaurant with an on-licence—the granting of which has to be determined in the way in which the granting of all other on-licences is determined—it is not practicable to distinguish such a restaurant from a public house which also sells meals. In a sense, of course, they are quite different. It depends on the restaurant.

If one seeks to draw a line between the two, based on sound reasons which do not lead to absurd results in particular instances, one embarks upon a very difficult task; it is very difficult indeed to define a restaurant with an on-licence in terms which will not include a public house, in the ordinary sense, where meals are served.

Perhaps it was right, perhaps it was wrong to exclude public houses, but upon the assumption that we were right in excluding them—though not off-licences since we have accepted an Amendment—we thought it was extremely difficult to try to include the restaurant which has an on-licence. It would mean drafting which would probably produce unsatisfactory results and lead to a feeling of injustice in a number of cases.

I shall deal now with the question of building societies where a shop is part of the premises. I would not like to be kept to this answer because it may be wrong, but I would have said that where shop premises, although part of the general building in which the building society or whatever it may be is housed, can nevertheless be said to be a separate room, a separate portion of the premises; and where the shop undertaking is an undertaking separate from the rest of the operations of the building society; I should have thought that these—and I repeat that I would not like to bind myself to the answer without considering the matter more fully—would be shop premises within the meaning of the Clause. That would be my answer to the hon. Member for Henley (Mr. Hay).

Perhaps the right hon. and learned Gentleman would consider the matter before Report stage?

Certainly. I think I have now dealt with all the points raised. I hope the Committee will agree that as the Clause is now phrased it does what it is expected to do and gives reasonably clear definitions which fit in with the other parts of the Bill.

What would be my right hon. and learned Friend's view, for example, with regard to a hairdresser's establishment—an establishment which is not carried on

"wholly or mainly for the purposes of a retail trade or business"?

Is it to be protected or not? I ask my right hon. Friend to reconsider the matter because it is very important that a large number of anomalous cases should be covered.

I hope the right hon. and learned Gentleman will not try to answer every question put to him by the hon. Member for Leicester, North-West (Mr. Janner) on matters of this sort. I have never been able to make out whether the hon. Member wants this Bill to be passed or not. Quite obviously, whether premises come within a definition in this Clause is in every case a question of fact, and if we were to spend the whole time dealing with cases such as that which the hon. Member put to his right hon. and learned Friend, we should take a very long time and not complete the Committee stage tonight.

I beg to move, "That the Clause be read a Second Time."

This Clause is designed specifically to meet an objection voiced earlier to the effect that it was not right that a tenant who was granted an extended tenancy under the terms of Part I of the Bill should be enabled to turn that circumstance to his advantage by assigning or sub-letting. The new Clause has the following effect. If there is an assignment of the whole or part of the living accommodation of the premises in question, or if there is a sub-letting of the whole of the living accommodation, then the landlord can give notice terminating the tenancy.

I think that meets the major argument which was advanced in this respect. Of necessity, the Clause has to be somewhat complicated in its drafting, and the Committee may have noted that the assignment relates to the assignment of the whole or any part of the living accommodation whereas the sub-tenancy relates only to the whole. there are technical reasons for that distinction between the whole or part in the case of an assignment and the whole only in the case of a sub-tenancy. Perhaps the Committee would accept it from me that our object in making that distinction was to prevent a very easy way of evasion and at the same time to make it possible for a tenant to sub-let a part of the premises in question, himself residing in the other part, which, having regard to the present housing shortage, we thought it was right he should be able to do. With that explanation, I hope the Committee will accept the Clause.

By tabling this New Clause the right hon. and learned Gentleman has obviously made an effort to meet the objections, so strongly and persuasively advanced from this side of the Committee, to the Bill in its original form.

Why waste time?

We are not wasting time by discussing a new Clause which has appeared on the Order Paper for the first time.

Why waste more time?

I was thanking the right hon. and learned Gentleman for the efforts he has made. Apparently the hon. Member thinks that that is a waste of time.

rose—

I cannot give way. We want to get on. The hon. Gentleman can follow me afterwards if he wants to comment on the subject. The right hon. and learned Gentleman spoke about the technical difficulties connected with the disparity between paragraph (a) and paragraph (b). I quite see the need for making it an assignment of the whole or of part, and that part of the Clause seems to me to be entirely satisfactory.

I am a little puzzled about paragraph (b). As it now stands it seems to me that it leaves the door open to a good deal of exploitation on the part of the tenant. As I understand it, the tenancy will not be determinable if the tenant retains one bedroom in the living accommodation for himself or for a member of his family, and lets out the rest of the premises into separate accommodation to a number of sub-tenants, to whom he will be able, presumably, to charge what rent he likes. I think I am right in saying—I am not sure—that the first letting, the breaking up as we envisage it in the new Clause, would not be under the Rent Restriction Acts. I do not think it would, but it does seem rather odd that a tenant should be given the right under paragraph (b) of letting off to a number of sub-tenants, at a, perhaps, largely increased rent when, if he sub-lets the whole of the living accommodation, his lease can be determined.

I ask the right hon. and learned Gentleman to apply his mind to that. I do not think the point is met by saying, "We have done this to facilitate the provision of housing accommodation." We have also to consider the position of the subtenants, and I am not sure whether it would not be better—I am not expressing any view upon this, but I should like the right hon. and learned Gentleman to consider it—to provide that where there is a sub-letting within the period this Bill operates of any part of the living accommodation the sub-tenant may become the direct tenant of the landlord, rather than that we should preserve the position as it is now put in this new Clause. I should be grateful if the right hon. and learned Gentleman could expand his explanation of paragraph (b) a little further, because, while I welcome the new Clause in principle, it does seem to me, following what he has said, to have a little defect in that part of it.

What we were anxious to provide was that a tenant with a prolonged tenancy should not be liable to lose his tenancy if he sub-let part but lived in the rest himself. We took that view because we thought that present-day circumstances did make it desirable in the public interest that a tenant who had available room to let should be able to let it, so long as he himself retained part of it. Of course, it is perfectly possible that any tenant may exploit his subtenants, just as any landlord may exploit his tenants, but not every landlord does, nor every tenant does; but I am simply saying so far as the tenant of a prolonged tenancy is concerned, that he is in exactly the same position as any other tenant of a tenancy which is not prolonged, and that he is in neither a better nor a worse position to exploit persons who may become sub-tenants of his. That is the answer I give to that particular suggestion.

But we think that the public interest does require that we should not prevent a person who has his tenancy extended for two years from sub-letting part of it if he can accommodate himself in less than the whole amount of the accommodation within the particular dwelling unit. If the question is asked, why, in those circumstances, we provided that assignment of part gives rise to a notice to terminate, I answer that that was to avoid what would be otherwise an easy means of evasion; because a tenant may sub-let part and assign part, and, at the same time, not render himself liable to have a notice served on him by his landlord for so doing; and that would put it in the power of the tenant to do exactly what hon. Members opposite do not want it to be possible for him to do; and it is for that reason that the new Clause appears in its present form.

I do hope that the Solicitor-General will give a little further thought to this point. In this Bill it is proposed artificially to extend the duration of the lease. The original purpose of this was to safeguard the position of the tenant. I think that my hon. and learned Friend has raised a point of some substance when he points out that, as a result of the extension of the tenancy which is given under this Bill, in order to ensure that the tenant shall not be turned out of the house she has been occupying so long, it is quite essential that there should be some safeguard against that concession being used as a ground for profiteering on the part of the tenant.

I would put this further point to the learned Solicitor-General, that it may very well be that under the original lease the tenant would have forfeited his rights if he had sub-let. If I am right in my understanding of the Bill he will be protected against forfeiting his rights during the period of extension even if he does commit a breach of one of the conditions that have applied. When this protection is given—protection against forfeiture of his lease for breaking this condition—it appears to me that the Government really should try to make certain that this new Clause will not lead to what I am sure they as well as hon. Members on this side of the House would regard as an abuse of the purpose for which this Bill was introduced.

I gladly express gratitude to the learned Solicitor-General for having tried to meet the point that was raised before, but I do hope that he will give a little further thought to this to see whether the drafting of this new Clause does not go a good deal wider than what was in his mind.

I wonder if the learned Solicitor-General would help us over one point that arises from the explanation which he gave to the Committee, I think it would be helpful to some hon. Members if he would answer this question. If I followed him aright, he referred to the possibility of an assignment of part of the premises. I am not quite certain whether I heard and understood him correctly on that point, but is it possible for part of the premises to be assigned?

It may be inappropriate but possible.

I beg to move, "That the Clause be read a Second time." The purpose of it will be quite apparent to the Committee. Let me say at once to hon. Gentlemen opposite who were very insistent, during the earlier stages of our discussions, upon the necessity for introducing a safeguard against serious depreciation, that this new Clause is not intended and does not purport to go the whole length of what they wanted, but it goes some part of the way. The argument was that it was wrong that during the two years extension, because of the effect of Clause 4 of the Bill, the landlord should be virtually powerless to take any steps by way of forfeiture in the event, say, of serious depreciation of the premises owing to lack by the tenant of care to take the necessary steps to maintain the premises. Hon. Members opposite particularly complained of Clause 4, because it seemed to them that it had that effect.

What this new Clause is designed to do, as I have said, is to go some way to meet that objection; but I do not for a moment pretend it goes the whole way they want. What it does is to say that during the two years period although landlords are not given the right of forfeiture at all for breach of covenant to maintain. nevertheless, if it can be said that work is necessary for preventing or arresting serious depreciation in the condition of the property or of adjoining property, and only in that case—in other words, where the danger is of serious depreciation—the landlord shall be entitled to go in to do the repairs and recover the cost of doing the repairs, so far as it was reasonably necessary to do them, from the tenant. The right of the landlord to recover that cost is suspended, just as the remedy for damages in case of other breaches of covenants is at present suspended under Clause 4 until the termination of the extended tenancy.

6.0 p.m.

That is what this proposed new Clause does. It provides this degree of safeguard to a landlord who sees his premises being allowed to fall into a state of serious neglect. If he can show that there is a danger of serious depreciation he is given the right to go in to see the state of the premises, and the right to carry out necessary repairs to prevent serious depreciation. He cannot, however, claim to be repaid by the tenant during the two years extended currency of the lease; he must wait until the end of it, but when the end of it comes he can, under the terms of the tenancy, claim to be repaid the amount which was reasonably necessary to do the repairs.

As I said at the outset of my observations, this new Clause goes part of the way, but only part of the way, towards the goal hon. Members opposite had in mind when they previously criticised Clause 4. In my submission, it at any rate provides a reasonable safeguard to the landlord who can, in the event of his premises being allowed to fall into a state of serious decay and neglect, go in and put an end to that state of affairs.

This is an effort to go some way to meet the problems to which we drew attention earlier in our discussions, but the distance it travels in that direction is very small indeed, and I must say that I do not regard this as a satisfactory Clause in its present form. What we are seeking to do is, by some means or another, to secure that during the next two years existing property which, owing to the Government's failure to permit repairs being done, is falling rapidly into disrepair in so many parts of the country shall not be allowed to deteriorate if that can be avoided.

We put forward our proposals for dealing with this at an earlier stage in our discussions and I shall not repeat what I said then or prolong the discussion now by re-opening that debate, but I ask the Committee just to consider what this proposed Clause really does, and to consider whether it is likely to be in the least degree effective in preventing the unnecessary deterioration of property. After all, to whomever they belong, the maintenance of houses is a matter of urgent importance in the national interest.

Under subsection (2) we find that the landlord, or his agent or surveyor, is given a right of entry, whether he had it before or not, to carry out work.

"for preventing or arresting any serious depreciation in the condition of the property or adjoining property."

Of course, there is no objection which anyone could take to that, but when we look at subsection (3) we see that the expenditure is divided into two categories: first, expenditure incurred by the landlord; and, secondly, expenditure incurred by some other person and recovered from the landlord. I ask the right hon. and learned Gentleman to explain what he has in mind when he says:

"expenditure … incurred by some other person and recovered from the landlord."

He did not deal with that in explaining the meaning of this new Clause.

Subsection (2) goes on to say that if that expenditure, whether incurred by the landlord or by some other person and recovered from the landlord,

"was … in consequence of failure by the tenant to comply with any of the said terms and conditions"—

that is of the tenancy—

"the expenditure shall be recoverable by the landlord from the tenant whether or not those terms and conditions so provide."

As I understand it, if this work has been done, either by the landlord or by another person and the cost recovered from the landlord, and if it is work which arises in consequence of the failure of the tenant to comply with the obligations of the tenancy, it is provided that the expenditure shall be recoverable whether or not the terms and conditions of the tenancy so provide. It would appear from this that if the failure to comply with the covenant is established, and if cost is incurred in remedying the consequences of that failure, under this subsection the landlord is given a right of recovery which at the present time he may not possess. That is as I understand the new Clause so far.

Then we go on to read subsection (4), which says:

"Paragraph (a) of subsection (1) of section four … shall apply to any right of recovery from the tenant … of expenditure incurred by another person."

That is the second category referred to in subsection (3). As I see it, there is nothing there to say that subsection (4) shall apply to recovery by the tenant of expenditure incurred by him. The right hon. and learned Gentleman said that subsection (4) does apply. I may be wrong, but as I read the proposed new Clause I do not see that it does apply where the expenditure is incurred by the landlord. Subsection (4) is only brought in when the expenditure is apparently incurred by some other person than the landlord, reading subsection (4) with subsection (3).

I must say that on reading this Clause for the first time I arrived at the conclusion that it gave to the landlord a right of entering and doing repairs which were necessary, and where the repairs were rendered necessary by reason of the tenant's failure to comply with his covenants there was a right of recovery of the expense of those repairs from the tenant; but, in view of subsection (4), where another person incurred expense due to the failure of the tenant to comply with his obligations and that other person recovered the expense from the landlord, the landlord would not be able to recover. That, as I see it, is what this Clause means.

If the right hon. and learned Gentleman's interpretation of this Clause is correct—and I am sure he will admit that it is not, in its wording, the easiest Clause one has seen—it will lead to the most astonishing results. According to him, for the purpose of keeping property in repair the landlord is given a right of entry and a right to put the property into repair, but no right of recovering anything from the tenant, who is under an obligation in respect of those repairs, until after the termination of the lease, when a tenant has perhaps quitted and may not be traceable. The suggestion we put forward is much better than that.

What is going to happen in practice? Take the case of a bad tenant. There are some, and there are some bad landlords. Take the case of a bad tenant who is not keeping the house in proper repair, and the landlord goes in under this Clause and puts it right. The tenant can commit waste and again allow the property to fall into disrepair by his own neglect or misuse of it. Is the landlord to come in again and again at his own expense, to put right the condition of the property and merely have, at the end of the tenancy, the right of suing the vanishing, bad tenant? That is a case which the right hon. and learned Gentleman has not dealt with. It is a case that may arise, and it is one that should be dealt with if we are to do equity in a matter of this sort. We have heard much about this being a standstill Measure, and the result will be, if it is left in its present form, that, in spite of this Clause, it will be a Measure which will lead to the decay of a great deal of house property.

I think that if the hon. and learned Gentleman really understood what the Clause said, he would have seen that it goes very much further than many of us would want a Clause of this nature to go. He said that this was his first reading of the Clause. If he had read it a little more thoroughly he would not have made such foolish comments with regard to the remarks of other people who know a little about the Acts. We are anxious to make this Measure as comprehensive as we can in order to protect tenants who hitherto have not had that protection. Many hundreds and thousands of tenants have been turned out when their leases have expired since they have spent a lot of money on repairs. The sooner he realises that, perhaps the quicker he will be to see that some of his comments are foolish.

I would like to ask one question with regard to the tenant who has unfortunately been placed in a position of taking over premises which have been neglected for many years. The tenant, for example, whose landlord was under no obligation to do outside repairs and the tenant was under an obligation to do inside repairs, which sometimes happens, under long leases. What is his position? According to this Clause, we are calling upon the tenant to do certain repairs which through his landlord's inaction became necessary, and it may be that the tenant's neglect is due to this inaction from another direction.

The second point which I would like to ask him is this: Why has the tenant who, after all, is defined as the tenant actually occupying the premises, to pay for a considerable amount of repairs which many of his predecessors have failed to do in consequence of the fact that the landlord did not do the portion of the repairs which under the lease he was required to do?

It is, of course, difficult to find a Clause which adequately meets the conflicting points of view over this matter. We feel that we cannot go further than we have gone without running into the danger of providing a purely illusory protection, and we are not prepared to do that. The Bill is designed to provide real protection to the tenant, and if one puts into the hands of the landlord more drastic powers, we are making the protection which we are seeking to give to the tenant during the two year period of much less value than it is at present.

That is why I have been thinking how we can meet the arguments, both in the House and the Committee, advanced on Clause 4. We thought that this was a reasonable compromise to both demands. I think that there are sufficient safeguards in the Clause to overcome the dangers of which the hon. Member for Leicester, North-West (Mr. Janner) is apprehensive.

The new Clause only provides for work

"reasonably required for preventing or arresting any serious depreciation in the condition of the property."

In the event of a dispute—and we hope there will not be a dispute in this short interim Measure—and the case went to court, it would be for the judge to decide; but one hopes that it will not be necessary to resort to the courts and that the two parties will be able to put their heads together and agree on what is reasonable in a particular case.

There is a further effective safeguard in the Bill. In the first place, the only work that is contemplated as being within the purview of the Clause is work which is necessary or reasonably necessary for preventing or arresting serious depreciation. It could be said that that certainly is not more than is reasonable. It is not unreasonable to say that the Clause should be so worded that if it is obvious that the premises are going into serious decay or neglect, it should be possible for the landlord to do something to arrest that process. Secondly, I would say to my hon. Friend that the only amount which the landlord can recover is that which is reasonable. He cannot recover any fantastic amount in respect of work which is quite unnecessary. There are these two quite separate safeguards, which, we think, adequately safeguard the tenant's position.

I gather that the right hon. and learned Gentleman says that the whole Clause relates only to repairs necessary to prevent or arrest serious depreciation. I suggest, unless I have misread the Clause, that subsection (3, a) goes wider than that, because it covers expenditure incurred not only in respect of subsection (2) but also by virtue of the conditions of tenancy, so that the first safeguard which the right hon. and learned Gentleman mentions applies to only part of it.

Subsection (3, a) is subject to the further qualification that the landlord can only recover from the tenant expenditure under subsections (3, a) or (3, b) if it is reasonably required.

That was the second safeguard.

That safeguard is applicable to the expenditure incurred under subsections (3, a) and (3, b) and subsection (3) as a whole only relates to the expenditure which is described in subsection (2), which is expenditure which is necessary.

Subsection (3, a) goes beyond that.

Subsection (2) relates to work necessary for preventing serious depreciation. Subsection (3), in so far as any expenditure is incurred in respect of the execution of the work on the property—

The right hon. and learned Gentleman really must attach some force to the words following "landlord" in line 14,

"whether by virtue of the last foregoing subsection, …"

which relates to preventing any serious depreciation, or work incurred by the landlord

"by virtue of any of the terms and conditions of the tenancy."

Those words must have some meaning and they may cover the same area of territory, but they may go beyond what is provided in subsection (2). I think that the right hon. and learned Gentleman, if he reads the Clause again, will probably agree that that must be so.

Looking at it now, I agree that it is ambiguous, and I shall look at it again between now and the Report stage. I agree that the words to which I referred could either relate back or stand independently of subsection (2). I should like to consider that point again, and I am grateful to the hon. and learned Member for calling my attention to it.

Perhaps I might now answer the two specific questions that were put. The reference in paragraph (b) of subsection (3) is to the case in which the landlord is himself a tenant and, being a tenant, his head lessor under the head lease does the work and recovers the amount from him. We get the case where the landlord is a tenant and he is under an obligation to his head lessor. He does some work under the terms of the lease and recovers it from the tenant. That is the kind of situation invisaged under this paragraph.

The second question was in regard to subsection (4). The hon. and learned Member directed his attention to the words "incurred by another person." It might also be said that they are not as clear as they might be, but, from a straightforward reading, that applies both to the landlord referred to in subsection (4) and to the other person referred to in paragraph (b) of subsection (3). It might have been more felicitous to expand the expression, but we shall look at that between now and the Report stage. Therefore, it applies to both categories of cases, although it is not quite as clearly drafted as might be. We shall certainly look at it again.

If the Solicitor-General is going to re-draft the Clause, I hope he will pay attention to the wording of subsection (4) which would be sufficient to debar a third party from recovering the costs of repairs to his property, if it were adjoining property, until the two years had elapsed. May I put the case to him which he will find in the Law Reports, the case where adjoining property sustained extremely severe damage by tree roots. Repairs had to be effected and costs had to be incurred by the occupier of the adjoining property. Under the Clause that third party, although he is not a landlord and there is no such relationship between him and the occupier of the adjoining premises, would not be entitled to recover the sum he has expended in putting his property into repair due to failure by the adjoining occupier.

It seems to me to be at least arguable whether the Clause would not cover the owner of the damaged house as being "another person." That is, the owner or occupier of adjoining property in respect of which repairs were necessary owing to failure on the part of the tenant of the adjoining property. I want to be quite certain that the Clause does not go so far as to debar the adjoining occupier who suffers damage in that way from recovering the expense of putting it right. The wording is very bad, but I gather from what the right hon. and learned Gentleman has said that the Clause is to be reconsidered between now and Report stage.

We shall certainly look at that point. I do not think there is much danger, because the only expenditure which can be recovered is expenditure

"reasonably required in consequence of failure by the tenant to comply with any of the said terms."

It would be

"work reasonably required for preventing or arresting any serious depreciation in the condition of the property or of adjoining property."

I dare say that it would, but it would not also comply with the requirement that it had to be in consequence of failure by the tenant to comply with "any of the terms." There would not be a "term" on the part of a tenant to avoid the particular damage to which the hon. and learned Gentleman is referring. If I might use the language of the hon. and learned Member earlier, I think that my most useful contribution, if we are to get the Committee stage finished at all, would be to say that I am very grateful to him for having studied this Clause so closely and that we shall consider his arguments between now and the Report stage.

I am very worried about this Clause. I do not like to see the Government Front Bench giving away so many concessions to the other side on a question of this sort. Two concessions have already been made by my right hon. and learned Friend. I am not concerned with the manipulations of leases and speculators in land, but with the little chap who owns his own cottage. I want to know whether the little chap is worse off as a result of this Clause, and whether the finance corporations can move in and do the repairs they want and then saddle the small man with the bill at the end. Does the Clause mean more money for the landlord than would otherwise have been the case?

No.

It appears that hon. Members opposite have been arguing that the Clause does not go far enough. They want a little more money for the landlord. My right hon. and learned Friend has made it perfectly clear—as clear as anything has been in the debate—that the landlord will be able to claim at the end of the tenancy money that he would not otherwise have been able to claim but for this Clause.

I do not like all this talk about the tenant. I am not a lawyer. Lawyers talk of a man who has bought his own house, or built his own house, or lived in a house for 60 years as a tenant of some miserable, squalid finance corporation in London, whose activities I know from their administration in my part of the world. They talk as if these corporations had greater rights than the man who morally owns the house. My right hon. and learned Friend had better not go any further with the Clause on Report stage, or he may find trouble from this side if he gives another inch to the Opposition on this question.

I am not suggesting that I should go any further. Hon. Members opposite, particularly the hon. and learned Member for Northants, South (Mr. Manningham-Buller), who has obviously studied the Clause very carefully, take the view that there are certain possible ambiguities. It seems to me, on looking at the Clause rather more closely, that there is room for the possibility of two interpretations. I am saying no more than that I should like an opportunity to consider the Clause between now and Report stage with a view to improving the drafting. I am not prepared to go further along the path in meeting the arguments of hon. Members opposite—I hope I am not importing any prejudice—which is not consistent with safeguarding the object we have in mind, which is to provide a real and not an illusory protection for the tenant.

I should like to say to my hon. Friend that what we have in mind is—we may get a case of an extended tenancy during the two years, with the tenant under an obligation to carry out certain repair to prevent the property decaying. If it can be said that the property is seriously going to wrack and ruin and there is the danger of serious depreciation owing to this failure to repair, then the landlord is given the rights which this Clause confers upon him. He can go into the property and carry out the repairs, but he cannot during the two years recover from the tenant the cost of carrying out those repairs. Any rights he has in that respect are postponed until the termination of the two years.

6.30 p.m.

Endeavouring as we do to hold the scales evenly between the conflicting interests involved and seeing to it that the tenant is adequately protected and that the landlord is given a reasonable measure of protection in the case where the property is seriously deteriorating, we think that, having listened to the arguments on this question, we have fairly drawn the line between the two. I understood that what was really the proposal that came from the hon. Gentleman opposite was to look at the matter again. I am not doing any more than looking again at the drafting with a view to removing ambiguities which do exist in the drafting, to which my attention has been called.

The right hon. and learned Gentleman seems to have had a fair measure of success in mollifying some of his opponents on the Government benches. Whether he will continue to mollify them if he pursues this new Clause to its conclusion I do not know, but it will be of interest, when adjustments are made to the Clause and an opportunity is given to discuss it on Report stage, to see whether the hon. Member for Cardiff, West (Mr. G. Thomas) and his hon. Friends will carry these strong opinions to a Division. My belief is that they probably will not, and that all this sound and fury is a bit bogus.

I want to turn to the principle of the new Clause. The right hon. and learned Gentleman in approaching the Committee with the Clause, has told us on this side that this is a concession, an effort to try and meet the position we raised in the course of earlier debates. What exactly is the nature of this concession that he is going to give? He has talked a lot about landlords' rights, including the right of re-entry to do certain repairs. But that is about the only thing that the landlord is being given. The landlord is given the right to do the repairs to prevent the property falling down, but his right of recovery of the cost of doing them is going to be postponed until the end of two years.

The landlord can do these repairs at his own expense provided that at this stage he is prepared to advance the money to do so, and at the end of two years he can recover the money from the tenant. Who knows what the position is going to be at the end of two years? Frequently we have been told that this is a standstill Measure. Who knows what the form of the final Bill will be if this Government is still in office? What is the position of the landlord who has done these repairs and has been vested with the right of recovery from the tenant if the new Bill, which the Government are eventually going to introduce, does not safeguard his position?

Supposing the tenant, in fact, goes out at the end of the two years, how will the landlord recover his money if, in fact, he has the right of recovery of the expense of the repairs? The tenant will be vanishing and the landlord will try to find him to recover the money from him. This is the very dubious right that the right hon. and learned Gentleman has given to the landlord. I think he has been drawn towards his hon. Friend the Member for Cardiff. West, who hovers on his flank and is prepared to sting if necessary, but I suggest that the right hon. and learned Gentleman is not here doing very much to help the landlord. It is very illusory and my personal opinion is that whatever the drafting we must on Report seriously consider the whole principle of this new Clause.

I beg to move, "That the Clause be read a Second time."

This brings into one particular Clause all references to service of notices. In other parts of the Bill we have left out—and the Committee have agreed to our so doing—other references to service of notices in order that this new Clause may cover them all.

I beg to move as an Amendment to the proposed new Clause, in line 1 to leave out from beginning, to "shall," and to insert:

"section twenty-three of the Landlord and Tenant Act, 1927."

The new Clause provides that the provisions of Section 196 of the Law of Property Act, 1925, shall apply to the service of notices. As many hon. Members know, that is a very customary provision in matters of this kind. It is an omnibus section introduced into the Law of Property Act and refers to service of notices and such like things. My point is—and I am certain that the Solicitor-General has looked at this matter—that Section 23 of the Landlord and Tenant Act, 1927, is a similar sort of section. It is a little shorter and in my view it is far more concise and more appropriate to the sort of situation which this Bill is intended to cover. I shall not weary the Committee—we are all anxious to make progress—by reading out the two contrasting sections of these two Acts. I have no doubt that hon. Members interested in this Amendment looked at them for themselves. I move my Amendment formally by saying that I hope the right hon. and learned Gentleman will agree that Section 23 of the Landlord and Tenant Act, 1927, is far more appropriate for the sort of thing that this Bill is intended to cover.

I am most anxious not to prolong the proceedings, but I am bound to say that it was my hope that when the hon. Member for Henley (Mr. Hay) moved his Amendment that he would indicate in argument why he thought the provisions of the 1927 Act were preferable to the provisions of Section 196 of the Law of Property Act. In the view that we have formed, there is not very much to choose between the two. I have a perfectly open mind on it, and would have liked to hear more in argument as to why we should prefer the form of the 1927 Act to the form of the 1925 Act. If the hon. Gentleman would be so kind, either now or at some later stage, to indicate the reasons which motivated him in putting down this Amendment in favour of Section 23 it would help, but at the moment we are taking Section 196. Although the two sections are similar they are not, in effect, quite the same, and we think that the more appropriate is the one which is in the Bill. I have a very open mind about the matter.

I did not want to give a long explanation to the Committee and I thought that the right hon. and learned Gentleman would give my point consideration. I do not propose even now to go in any great detail into the difference between the two, but I ask the right hon. and learned Gentleman between now and the Report stage to look at those provisions, and particularly at subsections (2), (3) and (6) of Section 196 of the Law and Property Act, 1925. In those subsections are to be found the conditions which I consider entirely inappropriate for this sort of Bill.

Section 23 of the 1927 Act is far shorter, more concise and is the one which is normally used and resorted to by those who act for, and give advice to, landlords and tenants in matters similar to those covered by this Bill. Lawyers, solicitors and estate agents usually use in legal documents Section 27 of the 1927 Act. I shall not delay the Committee at this stage. I have indicated shortly what my points are and perhaps I might write to the right hon. and learned Gentleman to make the point clear. I beg to ask leave to withdraw the Amendment.

I beg to move, in page 14, line 24, to leave out paragraph 4, and to insert:

4. Where, in relation to any tenancy to which section two of this Act would have applied if the tenancy had not expired before the commencement of this Act any order or judgment has been made or given by a court before the commencement of this Act, and has not been executed, and in the opinion of the court the order or judgment would not have been made or given if at the time thereof this Act had been in operation, the court may on application by the tenant rescind or vary the order or judgment in such manner as the court thinks fit for the purpose of giving effect to this Act.

This Amendment affects the transitional provisions dealing with people who have been tenants, whose leases or tenancies have come to an end and who remain in possession against the will of their landlords, and where the landlords have gone the length of praying to a court and obtaining an order against them. Paragraph 4 of the Schedule provides in those cases not that the order which the landlord has obtained shall not be completely effective or set aside, but only that certain portions of the order shall cease to have effect.

If there is an order to give the landlord possession of the property, or payment of any sum of money equal to the rent that ought to have been paid, it is quite right, so far as the order deals with those matters, that it should not be carried out in view of the lengthened term which is given by the Bill. In our view the proper way of dealing with that matter is that the tenant should go back to the county court and say to the judge, "Since you made the order this Act has been introduced under which a tenant has new rights. What is the order which ought to be made in the new circumstances?" Thus he would get a new and final order dealing with the new position set up by the Bill. That would mean setting aside any order for payment of any rents in arrear and merely a direction to bring it into account.

In our view, as paragraph 4 of the Schedule is now worded, it does not mean that the existing proceedings will have come to an end. Sooner or later the parties will have to go back again to the county court. Our suggestion is much cheaper and quicker for everybody concerned. It is to go back at once and get the court to make the proper order which it would have made had it known that the Bill was coming into operation. Our Amendment is to substitute what we think is the more effective procedure that the parties should go back to the court. It is as I say quicker and cheaper, and involves no further costs than the arrangement made under paragraph 4.

The object of the Amendment, as I understand it from the argument of the hon. and learned Member, is that there should be a right in the court to rescind an order if it is of opinion that, had this Measure been in force, the order was not such as would have been decided upon. It seems to me that there is a fundamental difficulty about it. I quite accept and understand the hon. and learned Member's references to the court being in a sense somewhat decorous, so as not to be abrupt in one's language about a court order. The difficulty is that in every case, as we conceive the situation, the court, if I may follow the language of the Amendment, would be bound to be of the opinion that no order would have been made if the Act had been in force. The Amendment says that the order can be rescinded if, in the opinion of the court, the order or judgment would not have been made or given, if, at the time, this Measure had been in operation. That is the prerequisite to the making of the recission order which the Amendment contemplates.

The difficulty which meets the hon. and learned Gentleman at the outset of his argument is that if you assume a court which is asked to make an order to turn out a tenant, in circumstances in which, if this Act had been already in operation, it could not have been made, the court would have said, "We cannot make an order because this tenant is allowed to remain in." In each case the court would have refused to make the order. To say that the parties should go back and ask the court to rescind the order is to assume that if this Measure had been in operation the court would have made such an order when, in fact, it would not have done so.

Perhaps I have not understood the course of the hon. and learned Gentleman's argument, but he appears to be proceeding upon a misconception. Although he might have had some slightly different purpose in mind, in point of fact the object which he would achieve by the wording he has chosen for the Amendment is one which has no scope within the Bill. The only result of the Amendment would be that a quite unnecessary procedure would be imposed upon the persons concerned because, ex hypothesi the court would not have made the order, supposing the Act to have been in force. In those circumstances we think that our form of words in paragraph 4 is preferable to that of the hon. and learned Gentleman.

The form of words in the paragraph only sets aside part of the order so far as it provides for possession, and so forth. Otherwise, it leaves the order of the court standing and leaves the proceedings going on. It means that, sooner or later, the parties have to go back to the court. I entirely accept the view that no court would make an order for possession. Obviously, it could not make an order for the payment of a sum of money for rent as rent, but it would clear up any matters dealt with by the order, on the basis that the Act was in operation. All this will be left standing. We suggest that the proper procedure is to send it back for the county court to make the order which it would have made if the Act had been in operation. In that way everything would be cleared up more quickly and cheaply.

Would the Solicitor-General direct his attention to the case, which I understand is not uncommon, in which a court gives an order for possession, and suspends it on condition of payment of the current rent and a prescribed proportion of the rent arrears? In the case of a judgment of that sort having been given, would not the effect of paragraph 4, and in particular of subparagraph (a), be to annul the effect of the judgment?

Again, I am always receptive of argument, and I see the object of the hon. and learned Gentleman's Amendment as he now explains it—as he did before, although I did not quite follow his argument then—and as it has been explained in the argument just addressed to the Committee. As the paragraph at present stands, it is only part of the order which is brought to an end, and any part of the order which relates to payment of costs would, of course, stand. It is certainly arguable, in those circumstances, that it should be enforceable in so far as it relates to costs only but, having listened to the argument of the hon. and learned Gentleman, amplified by the argument to which we have just listened, I should like, without any commitment, to look at it again and to think the matter over before the Report stage.

It is a technical matter, and it may be that some expense could be saved to the parties if they were given an opportunity to go back. I am, however, very far from sure that that is the case and very far from sure that it would not simply mean that applications would be made to the court which would he destined to failure and merely involve the parties in expense unnecessarily. There may be some applications of that sort. Without any commitment, I should like to consider the proposals if the hon. and learned Gentleman would withdraw his Amendment.

Will the right hon. and learned Gentleman bear in mind that the Amendment is based on a similar provision in the Rent and Mortgage (Interest Restrictions) Act, 1939, when he comes to consider it?

Yes. I would add that rent is payable currently under the Bill as it stands.

I beg to ask leave to withdraw the Amendment.

I beg to move, in page 15, line 40, to leave out paragraph 9.

Paragraph 9 is one of the paragraphs relating to the giving of notice. It refers to Section 196 of the Law of Property Act, 1925, at which we have already looked and which deals with the giving of notices. As we have already moved, and the Committee has adopted, a new Clause which brings all those references into one Clause, it follows that we should leave out other specific references in the Bill to the giving of notice. The object of the Amendment is to achieve that purpose.

I want to raise a point which I believe to be of some importance even at this late stage of our discussions—discussions which I think have not been uninteresting even though they have not as yet resulted in the hon. Member for Cardiff, West (Mr. G. Thomas), justifying his exaggerated statements in the course of the Second Reading debate. The point to which I desire to draw the attention of the Committee is the contrast between Clause 2, as it now stands amended by the Committee, and paragraphs 2 and 3 of the First Schedule.

We had some discussion upon this when we were dealing with Clause 2. The right hon. and learned Gentleman said that he would reconsider the matter. I hoped that it would lead to elucidation, because I think there is conflict between the First Schedule and Clause 2 as amended. I hoped that in the long interval that has elapsed the right hon. and learned Gentleman would have put down Amendments to the First Schedule to reconcile the two or to iron out the ambiguities and anomalies which appear to exist.

I think the right hon. and learned Gentleman will agree that the wording of paragraph 2 of the Schedule must be read in conjunction with Clause 2 and is entitled to have just as much weight put upon it as Clause 2. The second paragraph is very general in its terms. It says:

"The continued tenancy shall be treated as having effect, and as having had effect, in substitution for any other tenancy or agreement. …"

Obviously, before the First Schedule applies, the tenant has to come within Clause 2, but once he comes within the ambit of Clause 2—[Interruption.] I understand that the Minister of Local Government and Planning indicates that he is here, and that therefore I should deal with this as shortly as I can. We all know that the right hon. Gentleman has a voice which carries. I see that he is waiting now. I can assure him that it will not put me off the argument which I am trying to expound.

Paragraph 2 is very general in its application, and while for paragraph 2 to apply the tenant has to come within the scope of Clause 2, once he is within that scope paragraph 2 obviously operates and attaches. Let us take the case of a tenant who comes within Clause 2, and, as it stands, has secured a renewal of his lease. Once he has done that he is within Clause 2. Then one turns to the First Schedule to see what is to happen to him. One then sees that that agreement has to be set on one side in substitution for any other tenancy or agreement. Is that right?

As I understand it, the right hon. and learned Gentleman has endeavoured by paragraph 2 of the Schedule to prevent the rent being demanded twice. It is quite simple and easy to secure that. But whereas under Clause 2 as it stands we are saying that a certain case will come within the Clause where there has been a fresh agreement, paragraph 2 of the First Schedule says that fresh agreement shall be set aside and shall count as nothing. As my hon. and learned Friend the Member for Northwich (Mr. J. Foster) has pointed out, the wording of the proviso about the payment of the premium conflicts with the expression in paragraph 3:

"… any penalty, mesne profits or other sum paid to the landlord. …"

The right hon. and learned Gentleman has had this put to him before, and he and the Attorney-General have given very unsatisfactory explanations. My concern is that if the Bill is left with the Schedule in its present form, the only beneficiaries as a result of this part of the Schedule will be members of the legal profession and the hon. Member for Leicester, North-West (Mr. Janner).

We certainly had been considering the arguments of the hon. and learned Gentleman the Member for Northwich (Mr. J. Foster) since he spoke about the Schedule, but we really did not think that any change was necessary. The Schedule applies when the tenancy is continued under Clause 2, as the hon. and learned Gentleman pointed out. It is not continued under Clause 2 when a premium is paid. Once you find the situation in which the continuing tenant is there because he has paid a premium, Part I of the First Schedule has no application.

7.0 p.m.

The point of the hon. and learned Member for Northwich, to which the hon. and learned Member for Northants, South (Mr. Manningham-Buller) has just referred was that the words "penalty, mesne profits or other sum" seem to duplicate the word "premium" and introduce a certain measure of uncertainty. They do not really. The premium is not a penalty within the meaning of this Schedule. If the hon. and learned Member asks what sort of penalty is contemplated, there are Statutes which provide penalties for certain defaults under leases. Mostly they are old statutes, and in particular there is one which is as old as 1730, but they are still part of the law of the land.

There may be a situation in which a lease is so worded that a penalty is payable and paid under that Act. This Schedule simply provides that where there is that situation where there is a penalty under one of those Acts, or there are mesne profits, or some sort of composition in respect of mesne profits, they shall count against the rent which is payable under the continued tenancy.

Does the right hon. and learned Gentleman really say that the words "other sum paid to the landlord … in respect of the occupation of the property" would not include a premium?

Even if they might, it would not matter because, as I have said, when the premium has been paid the Schedule has no application. I am simply explaining what those words refer to. When one gets the situation in which a tenant pays a premium and, because he has done so, continues as a tenant, one can entirely disregard the provisions of this Schedule because it has no application. That is the answer to the point made by the hon. and learned Gentleman.

As I have said before, we can cross over the threshold into this Schedule but we must find a situation in which no premium has been paid. Once we find there is no premium and that the tenant continues on the same rent—in other words once we have found the situation in which Clause 2 operates and continues the tenancy—then we look to see what the tenant is paying. We may find that he is paying a penalty under one of these old Acts, though it is unlikely because cases are rare, but one still has to provide for them because they are still part of our legislation. It is, in point of fact, a sum of money which he is required under the Statute to pay because of failure to comply with some provision in the lease.

In order to prevent him having to pay it twice, we say that those sums are to go against the rent which is payable under the extended tenancy. Inasmuch as this only operates where we do not find a premium at the outset, we must have these provisions to prevent the tenant being called upon to pay twice under the extended tenancy the money payments which pass from him to the landlord as consideration for enjoying the tenancy. In those circumstances, having carefully considered the arguments, I do not think that any change is necessary. The wording is perfectly satisfactory as it is, and if I may venture to disagree with the hon. and learned Gentleman, it will not be the lawyers who would benefit so much as the tenants who continue under the terms of these extended tenancies.

I cannot agree that the wording of this Schedule is satisfactory. It is putting it far too high. It seems to me that the right hon. and learned Gentleman found it difficult to make his explanation. I can see the objects which he wants to achieve, but I do not think this Schedule does that. It will lead to confusion. I am not at all sure that his interpretation of the relationship between Clause 2 and this Schedule is the interpretation which will be given by the courts. We have tried all we can in the course of this Committee stage to get the right hon. and learned Gentleman to reconsider this point and to amend the wording. He has said he has considered our arguments, but he is not prepared to make any alteration to a Schedule which is badly drawn, badly drafted and is by no means the best feature of a bad Bill.

I am sorry that the hon. and learned Gentleman should have ended upon that note. I desire to express my gratitude to him for having considered the wording of the Schedule. I simply meant to say that we had carefully pondered his arguments and, rightly or wrongly, we felt that the wording was