New Clause. — (Facilities for Action on Behalf of Men Serving Abroad in Proceedings as to Tenancies.)
Orders of the Day — Reserve and Auxiliary Forces (Protection of Civil Interests) Bill
—(1) Where in the course of any proceedings brought before a court under the Rent Restrictions Acts, or of any proceedings consequential upon the making of a reference or application to a rent tribunal under the Furnished Houses (Rent Control) Act, 1946, or under this Part of this Act, it appears to the court or tribunal—
- (a) that the proceedings relate to a tenancy vested in a service man;
- (b) that a person other than the service man desires to take a step in the proceedings on behalf of the service man at a time when he is serving abroad or has purported to take a step in the proceedings on his behalf at a time when he was so serving; and
- (c) that the said person, in seeking or purporting to take that step, is or was acting in good faith in the interests of the service man, and is or was a fit person to take that step on his behalf, but is or was not duly authorised to do so,
(2) The provisions of the preceding subsection apply in relation to the institution of proceedings before a court as they apply in relation to the taking of a step in such proceedings, and apply in relation to the making of a reference or application to a rent tribunal as they apply in relation to the taking of a step in proceedings consequential upon the making of such a reference or application; and references in that subsection to proceedings brought or a reference or application made as therein mentioned include references to proceedings which purport to be so brought or to a reference or application which purports to be so made, as the case may be.
(4) The Minister of Agriculture and Fisheries may make regulations—
- (a) for enabling a counter-notice under subsection (1) of section twenty-four of the Agricultural Holdings Act, 1948, to he served on behalf of a service man at a time when he is serving abroad, in a case where a notice to quit is given to him as mentioned in subsection (1) of section twenty-one of this Act; and
- (b) for enabling any act or proceedings consequential upon the service of a counter-notice under subsection (1) of the said section twenty-four to be performed or conducted on behalf of a service man at a time when he is serving abroad, either in such a case as is mentioned in the preceding paragraph or in a case where subsection (5) of section twenty-one of this Act applies in relation to the service man.
Mr Lynn Ungoed-Thomas (Leicester North East)
I beg to move, "That this House doth agree with the Lords in the said Amendment."
The object of Part II of the Bill is to provide the Service man with security of tenure, which will often depend upon his ability to bring or to defend proceedings. Difficulty may arise when the Service man is out of the country, carrying out his service. He may have gone away without giving anyone express authority to take action on his behalf and to protect his interests. The proposed new Clause confers that authority but it does so only if he is outside the United Kingdom, and it is subject to the safeguards which are laid down.
Subsection (1) provides that the Court or tribunal has to be satisfied that the person authorised to act on behalf of the Service man—I shall call him the representative of the Service man—is or was acting in good faith in the Service man's interest and is a fit person to act on his behalf. There we have discretion for the Court to safeguard the Service man's interests by ensuring that the representative is a person who, in the opinion of the Court, is suitable for the purpose. Subsection (1) deals only with the taking of steps in proceedings which have already begun. Subsection (2) makes corresponding provision to cover the beginning of new proceedings on behalf of a Service man.
Subsection (3) provides that the representative who has been so authorised by the court shall have the right of audience. This is because, apart from a provision of this kind, although the Service man himself would be entitled to appear and act on his own behalf without a solicitor or counsel, his representative would not be so entitled unless this specially expressed provision is made to ensure that he is. so entitled. The subsection gives the representative the same right of audience as the Service man himself would have.
Subsections (4) and (5) deal with the provision in the Agricultural Holdings Act. In the case of an agricultural holding, protection is extended to the Service man by extending the provisions of the Agricultural Holdings Act. In order to obtain the protection under the Agricultural Holdings Act where there is danger of eviction the tenant has to give a counter notice to the landlord, and the tenant is also the proper person to make representations to the Minister as to the reasons why the Minister should withhold consent to eviction and also the proper person to bring or defend an appeal against the Minister's decision before the Agricultural Land Tribunal.
The subsections enable the Minister of Agriculture to make regulations enabling a Service man's representative to take the necessary act on his behalf so that we can apply the same code to the Agricultural Holdings Act as would be applied to, cases where protection is required outside the Agricultural Holdings Act. Subsection (6) provides that the regulations which the Minister makes shall be made by a Statutory Instrument and shall be subject to a negative Resolution.
Mr Reginald Manningham-Buller (Northamptonshire South)
The Clause has a rather curious history and it is right that we should spend a little time in considering it, because it is the first time this House has had the chance of seeing the Clause in its present form.
I believe it was my hon. Friends who first raised the point as to the provision for the family of the Service man when the Service man was overseas and could not very easily institute or defend proceedings where he left no power of attorney. The Solicitor-General saw a difficulty and said he would try to meet it. On the Report stage a new Clause of about six lines was put down. It was considered most carefully and as a result of the criticisms then offered the Solicitor-General withdrew it and introduced this Clause in another place. We are all grateful to the hon. and learned Gentleman for his endeavours to meet us upon this point. He has done so to a considerable extent.
As I understand it, both with regard to the institution of proceedings, and taking part in proceedings which are already going on, it will be for the court to determine whether the representative of the Service man should be deemed to be authorised to act for him. That would probably work in the majority of cases, but what will be the position where the court deems that Mr. X or Mrs. X is the representative of the Service man overseas, and the Service man comes home and says that is quite wrong, that Mr. X or Mrs. X is really no friend of his? It may be that there is a possibility of matrimonial proceedings which might introduce a new element with regard to occupation of those premises. Is the Service man to be bound by the decision of the court that the representative is to be deemed to be acting for him? The representative may be instituting the proceedings and the Service man may not, in fact, be a party to the proceedings at all.
If it be the intention that the Service man should be bound by the decision of the court that a certain individual should be entitled to represent him, to consent to judgment, to consent to any terms, then that point ought to be dealt with in this Bill. As I read the new Clause, there is nothing in it to indicate that the decision of the court in relation to the claim by the plaintiff against the representative of the Service man, where it deemed the Service man as having authority to act, will be binding in law on the Service man.
I am not sure whether it is right to exclude any possibility of the Service man, in Korea or elsewhere, when he comes home, coming before the court and asking for what has been done to be set aside because the court was wrong to give authority to this individual to represent him on the ground that what was agreed to by that representative was not in his interest, though it may be in the interests of his children.
One has not had much time to consider this new Clause, and at first sight I should feel happier if there were some machinery available whereby, in that kind of case, the Service man could appeal to a higher tribunal for the matter to be re-opened. However, I gather from what the hon. and learned Gentleman has said that it is deemed that where the court finds that the person is representing the Service man, this will always be binding upon the Service man whether the decision of the court was right or wrong. We ought to give more consideration to that, because it is a serious point and has certain dangers.
My second point is in regard to Subsection (4). There the Minister of Agriculture and Fisheries will make regulations. Presumably under this subsection it will not be for the court to determine who is to be deemed to be authorised to represent the Service man. Any person who can bring himself within one of the categories mentioned in the regulations will be entitled automatically to give notice under those regulations. If that is so, it may be open to the same objections as those voiced on the Report stage with regard to automatic representation. I hope I have made the point clear.
Mr Reginald Manningham-Buller (Northamptonshire South)
The point is this: under subsections (1) and (2) the court has to be satisfied in each case that there is authority to act. Under subsection (4) the court will not come into that with regard to giving a notice. The regulations presumably will prescribe who can give the notice. They will prescribe categories. Once a person is within the category, presumably the court can give the notice and the notice will be binding on the Service man. That seems to open a door to the Service man being represented by people who are not really representing him, and in view of the fact that it is automatic and the court has no discretionary power, that makes it perhaps a little dangerous.
I appreciate that this is a very difficult Clause to draft. It is one which comes upon the Order Paper largely as a result of observations from this side, but I should be glad to know the views of the hon. and learned Gentleman regarding the points I have mentioned before we agree to the Amendment.
Mr Enoch Powell (Wolverhampton South West)
With what study I have been able to give to the Clause, I cannot feel convinced that it is drawn sufficiently widely to achieve the object which both sides of the House have in view. Its effect is restricted to the taking of proceedings, I think, in every case defined in subsection (1). The actions which may be performed on behalf of a serving man are proceedings before a court. There are in several parts of the Bill actions which are not proceedings and which, as the Bill is drafted, have to be taken by the serving man himself.
The first example to which I would refer is in Clause 16 (5, c). That is the application to a tribunal, which has to be made by the tenant; the tenant may apply to a tribunal. It is perfectly true that under the new Clause, when proceedings follow he may be represented and another person may act on his behalf, but we do not seem to have dealt with the fact that the application has still to be made by the tenant—that is, by the serving man.
Again, if we turn to Clause 28, which is in Part III of the Bill and is not covered at all by the proposed new Clause, we find that an order for the granting of a new business tenancy can only be made if there is an application to the county court by the tenant. There again, there is nothing at all to say that another person may make the application on his behalf.
Should the hon. and learned Gentleman argue that it is not necessary in those cases for it to be stated that the application may be made by another person on the Service man's behalf, I would refer him to Clause 5 (4), where it is expressly provided that the Lord Chancellor may make rules for treating an application made by another person as an application made by the Service man. If it were necessary to enable the Lord Chancellor to make rules for the purposes of Clause 3, for an action by another person to be treated as an action by the tenant or by the Service man himself, surely we ought to cover all the cases in the Bill where not merely court proceedings, but applications and other formal acts, are prescribed to be made by the tenant. Otherwise, the Service man who is on service abroad will be in a hardly less difficult position after we have added the new Clause to the Bill than he was before.
Mr Henry Strauss (Norwich South)
I wish to put one point to the Solicitor-General which is different from those raised by my hon. Friends. It seems to me that there is a small defect in the Clause, if I am right in its construction, which may have been overlooked. If the hon. and learned Gentleman will look at
subsection (1) of the new Clause, he will see that it empowers the court or tribunal to direct
that the said person shall be deemed to be, or to have been, duly authorised to take that step on behalf of the Service man.
That is, of course, quite rightly placed at the discretion of the court, but before the court can exercise that discretion three conditions have to be satisfied. It is to the third of those conditions that I invite the hon. and learned Gentleman to give his attention. The third of those conditions is:
that the said person, in seeking or purporting to take that step, is or was acting in good faith in the interests of the Service man, and is or was a fit person to take that step on his behalf, but is or was not duly authorised to do so.
I think the reason for the insertion of those last 10 words is that if he had been duly authorised there would be no need of this subsection at all. I think that that was in the mind of those who drafted the Clause and that the effect is that, if the serving man has given specific authority, the court would probably not think fit to authorise anybody else.
What would be the effect of that? The effect would be that the man specifically authorised by the serving man would not obtain a right of audience under subsection (3), because the condition precedent to obtaining a right of audience under subsection (3) is that the court should have given a direction under subsection (1), and the court in such a case would not have been able to give a direction under subsection (1) because, the serving man having appointed an agent, the words of paragraph (c) of subsection (1) could not be satisfied.
We have the rather curious result that, while any agent appointed by the court will have the same right of audience as the serving man, a man specifically authorised by the serving man will not have that right. That seems a curious provision and I ask the hon. and learned Gentleman to comment on it.
Mr William Spens (Kensington South)
We ought to thank the hon. and learned Gentleman for having brought this Clause forward. It was quite clear that without a Clause to enable someone to defend proceedings on behalf of an absent serving man, the Measure would not operate in a great number of cases. I am a little frightened by the wideness of this Clause and I suggest that its provisions ought to be watched.
In the first place, it is retrospective and that means that if someone had no authority at all to act for the Service man but had already acted, or acts in the future without authority and takes proceedings on behalf of the serving man, that person can go to the court and say, "Please validate everything that has been done up to date." This is a very strong measure against other parties and it is admittedly one to help the serving man. I do not want to make too much of it, but when we have a wide Clause of this sort which is retrospective in its effects, we have to watch closely how it operates and see that it does not do injustice.
The other point is that whereas there are provisions for appeal in cases under the Rent Restriction Acts and cases under this Part of this Bill, there are no provisions for appeal in cases under the Furnished Houses (Rent Control) Act, 1946, as far as I know. I think it would be possible by an appeal very often to put right what goes wrong under this Clause, but under the Furnished Houses (Rent Control) Act there is a tribunal and I am afraid that tribunals act a great deal more recklessly than do county courts and will accept anyone appearing on behalf of a Service man and make orders on behalf of the Service man.
When the Service man returns, the difficulty to which my hon. and learned Friend the Member for Northants, South (Mr. Manning ham-Buller), referred will arise far more frequently under this Measure than under the other Acts. This is another reason why I think it is necessary for the Government to consider whether they ought not to bring before the House a Measure to provide for some form of appeal from decisions of rent tribunals.
Major Ernest Gates (Middleton and Prestwich)
I am sure that Members on both sides of the House who will probably have to deal with constituency cases, would feel very much happier if they could have some sort of assurance that in extreme cases which arise under this Clause the Service Ministries will regard it as grounds for compassionate leave in order that the persons concerned may deal with the matter. I wonder whether the Solicitor-General would consider bringing that point to the notice of the Service Ministries.
Mr Lynn Ungoed-Thomas (Leicester North East)
I am sure that the Service Ministries will read the report of this debate and note the observations of the hon. and gallant Member for Middleton and Prestwich (Major Gates).
The hon. and learned Member for Northants, South (Mr. Manningham-Buller), put his finger on a very tender spot in this Clause. As I ventured to point out on the Report stage, the house must really make up its mind whether or not it thinks that on the whole it is worth while having discretionary representation provided on the lines of this Clause for Service men or whether it will say that they shall have no representation, which is inherent in this Clause and quite ineradicable. We have to choose.
If we are to give Service men representation of this kind, they have to take the rough with the smooth. If they get representation they must be bound by the representation. It was considered by the House that it was, on the whole, worth while providing for representation rather than to omit a provision for representation. While I fully appreciate the strength of the observation made by the hon. and learned Member for Northants, South, it was directed not to a drafting point or one modification or another of this Clause; I am sure he will recognise it was an observation which went to the very root of the Clause itself.
Mr Reginald Manningham-Buller (Northamptonshire South)
I appreciate what the Solicitor-General has been saying. With the leave of the House, may I say that obviously if one could avoid recourse to this Clause it would have its advantages. I wonder whether a way might not be provided if the hon. and learned Gentleman could impress on the Service Ministries the desirability of pointing out to all those who are to go overseas the wisdom of giving authority to someone to act for them before they depart. I should have thought that that would not be impossible at this time. In war-time it might become very difficult to do. If steps of that sort could be taken, it would immediately reduce the risks of something going wrong as a result of recourse to this Clause.
Mr Lynn Ungoed-Thomas (Leicester North East)
I fully appreciate what the hon. and learned Gentleman has said. I think it is a valuable suggestion, and I am sure that it is one to which the Service Ministries will pay attention. There is really nothing between us in regard to the observations which the hon. and learned Gentleman has made.
I pass on to his observations on subsection (4). There again, there is considerable substance in what the hon. and learned Gentleman said, but he will appreciate that these powers will be exercised by regulation, so that the precise provisions made by the Minister will appear in regulations which will be laid before the House and be subject to annulment. There will thus be opportunity for dealing with any difficulties that might arise, as they might well arise, in respect of the provisions made under the regulations.
The tribunals are not excluded from the provisions of this Clause. It is not limited to courts: it extends to tribunals also. The hon. and learned Member for Norwich, South (Mr. H. Strauss), referred to cases where the Service man had specifically authorised someone to act on his behalf. If we follow the precepts of the hon. and learned Member for Northants, South, perhaps we shall have an increase of those cases. There I entirely agree with him in his analysis of the Clause, if I may say so with respect. There, of course, there is no right to audience for the person who is expressly, specifically authorised by the Service man because, as he says, it does not come within the court's authorisation under subsection (1).
But that is a case where the Service man has acted under the general law, and where he has acted under the general law there does not seem to be a case for seeing that then there shall be some special right of audience. It is where the court exercises its discretion in order to make some special provision for the Service man which he has not sought for himself and where there is real need—and only in those circumstances—that it has been thought right that the special right of audience should be given.
The hon. and learned Member for Kensington, South (Sir P. Spens), referred to the discretion of the court. I agree that in a case like this the discretion of the court will have to be care- fully exercised: but I have not the slightest doubt that it will be judicially exercised as all courts in fact do exercise their discretion in matters of this kind. Certainly, if I may say so, the way in which the courts have exercised this discretion under the Courts (Emergency Powers) Acts, not with regard to this provision but in general, I think has won the gratitude of everybody who has been concerned with such litigation.
The only thing on which I was sorry to disagree with the hon. and learned Member for Kensington, South, was with regard to his observations on rent tribunals. I am certainly far from agreeing with him on that matter, but I gather that on that he was really just grinding an axe.